DOLAN v R

Citation: Dolan v R [2010] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 11 February 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The appellant was an 18-year-old man who, in the early hours of a Saturday morning, left a party with two companions after consuming significant quantities of alcohol. The group approached a car park at a fast-food restaurant in Mittagong, where the victim was working as a cleaner. The appellant unclipped a necklace from the victim's neck and took the victim's mobile phone after a companion made a threatening remark about getting "his mates" to rob the victim. No weapons were brandished, and all three ran from the scene.

Later that same morning, police located the appellant and found him wearing the necklace. Without prompting, during the journey to the police station, the appellant admitted how he had obtained it and produced the mobile phone from his clothing. He made full admissions in a formal interview at the police station.

The appellant pleaded guilty at the earliest opportunity and was committed for sentence to the District Court. His Honour Toner DCJ sentenced him to a total term of four years and six months, comprising a non-parole period of two years and six months and a balance term of two years, backdated to 4 March 2008. The appellant sought leave to appeal against that sentence.

Legal Issues

• Whether the sentencing judge failed to allow any, or any sufficient, discount for the utilitarian value of the early guilty plea.
• Whether the sentencing judge erred in treating the appellant's case as broadly equivalent to the typical armed robbery scenario described in the guideline judgment of R v Henry.
• Whether, in applying the Henry guidelines, the sentencing judge incorrectly incorporated aggravating features that were inconsistent with the actual facts (particularly regarding planning and the use of beer bottles as weapons).
• Whether the failure to give the plea discount warranted intervention and resentencing by the Court of Criminal Appeal.

Decision

The Court allowed the appeal, with the majority finding two distinct errors in the sentencing below. First, the sentencing judge failed to give any meaningful allowance for the utilitarian value of the appellant's early guilty plea. The only reference to the plea in the remarks on sentence noted that there was "probably a pretty strong Crown case" against the appellant. However, the strength of the prosecution's case is irrelevant to the utilitarian value of a guilty plea, and its invocation indicated that no proper discount had been applied.

Second, the Court identified errors in the way the sentencing judge applied the Henry guideline range. That range was developed in the context of a typical armed robbery case and has built into it an allowance for the utilitarian value of a late guilty plea. Where an offender has pleaded at the earliest opportunity, an additional deduction from the guideline range is warranted. The sentencing judge's description of the case as "on all fours" with the Henry criteria was also difficult to reconcile with the accepted finding that the offence was entirely opportunistic, and with the absence of any evidence that the beer bottles were brandished or used to threaten.

The majority assessed a fresh sentence. Notwithstanding real matters of aggravation (including a prior criminal history, being on a good behaviour bond only four days before the offence, and outstanding charges at the time), the Court gave the appellant full credit for his early plea and frank admissions to police. A total term of three years and nine months was substituted.

Orders Made

• Leave to appeal granted.
• Appeal allowed.
• Original sentence set aside.
• Appellant resentenced to a total term of three years and nine months (non-parole period and balance term not separately specified in the extracted text).

Key Takeaways

• The Court of Criminal Appeal confirmed that the strength of the Crown case is irrelevant to the utilitarian value of a guilty plea, following R v Sutton. Referring to a strong prosecution case when purportedly considering plea discount constitutes an error in sentencing.
• A sentencing court's application of the Henry guideline range must account for the fact that the range already assumes the utilitarian value of a late plea. Where an offender pleads at the earliest opportunity, an additional reduction is required.
• Describing an offence as "on all fours" with the typical Henry scenario requires careful examination of each criterion. Characterising unbroken beer bottles carried but not brandished as equivalent to weapons, or identifying "planning" in a wholly opportunistic offence, is inconsistent with the accepted facts.
• In resentencing, the Court balanced significant aggravating features (criminal history, conditional liberty at the time of the offence, and outstanding charges) against the mitigating weight of the earliest possible plea, frank police admissions, and the appellant's youth.
• Guidelines of the Henry type are not fixed tramlines. As the Court noted, citing Markarian v The Queen and Legge v Regina, sentencing is not a mathematical exercise and guidelines must be applied with appropriate flexibility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Thomson & Houlton (2000) 49 NSWLR 383 (utilitarian value of guilty plea)
- R v Sutton [2004] NSWCCA 225 (strength of Crown case irrelevant to utilitarian value)
- Markarian v The Queen (2005) 228 CLR 357 (sentencing not a mathematical exercise)
- Legge v Regina [2007] NSWCCA 244 (guidelines are not tramlines)
- R v Murchie (1999) 108 A Crim R 482 (Henry guidelines applicable to robbery in company)
- R v Hemsley [2004] NSWCCA 228
- R v Sundar [2005] NSWCCA 93
- R v Tetereycz [2005] NSWCCA 197