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15
Court of Criminal Appeal 19 August 2010

Do v R

[2010] NSWCCA 182

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE FIREARMS STATUTORY DISCOUNT FOR GUILTY PLEA RESENTENCE.

Citation: Do v R [2010] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 19 August 2010
Judges: McClellan CJ at CL, Hislop J, Barr AJ

Background

The appellant was one of four occupants in a vehicle stopped by police at approximately 3:00 am in June 2008. A search of the vehicle uncovered two unregistered prohibited pistols with live ammunition, a machete, a balaclava, gloves, and a small quantity of methylamphetamine. The appellant had a 32 calibre Beretta pistol in the foot well at his feet and methylamphetamine in his pocket, with items of correspondence in his name found in the glovebox.

The appellant pleaded guilty in the Local Court, before committal for sentence, to possessing a prohibited pistol (maximum 14 years, standard non-parole period of three years) and possessing an unregistered firearm (maximum 10 years). He was committed to the District Court for sentencing.

At sentence in the District Court in June 2009, the judge allowed a 20 percent discount for the guilty pleas and imposed a non-parole period of four years six months on the primary count and a fixed term of two years eight months on the second count. The appellant sought leave to appeal, arguing primarily that the discount applied was too low given the statutory regime then in force.

  • Whether the sentencing judge erred by applying a 20 percent guilty plea discount rather than the mandatory 25 percent prescribed by the Criminal Case Conferencing Trial Act 2008 for pleas entered before committal for sentence.
  • Whether the sentences should have commenced on the date they were actually imposed, not a later date.
  • Whether the sentencing judge failed to consider totality.
  • Whether a finding of special circumstances was warranted to adjust the ratio between the non-parole period and the balance of term.
  • Whether the overall sentences were manifestly excessive.

Decision

The Crown conceded the central ground of appeal. The Criminal Case Conferencing Trial Act 2008 applied to this case and mandated a 25 percent reduction in the term of imprisonment where an offender pleaded guilty before being committed for sentence. The sentencing judge, whose attention was not drawn to the Act, applied only a 20 percent discount. That omission constituted a material error, requiring the sentences to be quashed and the appellant resentenced. The Court found it unnecessary to address the remaining grounds of appeal.

On resentencing, Hislop J considered the appellant's background, including his arrival in Australia as a refugee from Vietnam, his early recruitment into criminal activity, and his extensive prior criminal record involving offences ranging from armed robbery to drug supply. The Court attached little weight to a psychologist's report because the appellant had not been a credible witness and the expert's opinion rested largely on the appellant's own account. The Court took a cautiously optimistic but guarded view of rehabilitation prospects, describing the evidence as "equivocal."

On count 1, the Court determined that the appropriate sentence before the guilty plea discount would have been seven years imprisonment. After applying the mandatory 25 percent reduction, the Court arrived at a non-parole period of three years eleven months with a balance of term of one year four months. The Court found no special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term. On count 2, which related to the same pistol, a fixed concurrent term of two years two months was imposed. Both sentences were backdated to commence on 19 June 2009, the date of the original sentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences quashed and replaced as follows:
  • Count 1: Non-parole period of three years eleven months commencing 19 June 2009 and expiring 18 May 2013, with a balance of term of one year four months expiring 18 September 2014.
  • Count 2: Fixed term of two years two months commencing 19 June 2009 and expiring 18 August 2011, to be served concurrently.
  • Earliest eligible parole date: 18 May 2013.

Key Takeaways

  • Under section 17(1)(a) of the Criminal Case Conferencing Trial Act 2008, a sentencing court was required to apply a mandatory 25 percent reduction to a term of imprisonment where the offender pleaded guilty before being committed for sentence. The provision left no discretion to apply a lesser discount.
  • Failure to direct the sentencing judge's attention to a directly applicable mandatory sentencing provision constituted a material error that required resentencing on appeal, even where the Crown conceded the point.
  • Where a psychologist's report relies substantially on an account given by an offender found to lack credibility as a witness, a sentencing court may attach little weight to the expert opinion.
  • No special circumstances were established merely because the appellant was completing an earlier period of imprisonment for a distinct serious offence at the time of sentencing.
  • Judicial Commission statistics and case tables derived from a small number of comparable cases may carry limited weight in sentencing for offences where factual circumstances vary widely.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 65(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
- Micklesson v R [2009] NSWCCA 61
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Kerr [2008] NSWCCA 201