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Court of Criminal Appeal 10 September 2010

Trujillo-Mesa v R

[2010] NSWCCA 201

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Trujillo-Mesa v R [2010] NSWCCA 201
Court: Court of Criminal Appeal, New South Wales
Date: 10 September 2010
Judge(s): Hodgson JA, Price J, Fullerton J (Fullerton J delivered the principal judgment; the others agreed)

Background

The appellant pleaded guilty in the Local Court to conspiracy to deal with money believed to be proceeds of crime, contrary to the Criminal Code Act 1995 (Cth). The offence related to her role in remitting approximately $800,000 in cocaine proceeds from Australia to Peru between March and May 2006. The money was channelled through a network of students using Western Union, MoneyGram and bank transfers, with the appellant maintaining a detailed record of transactions.

The District Court sentenced her to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months, backdated to her arrest in the United States in August 2008. The sentencing judge applied a 20 per cent discount for the guilty plea, rather than the 25 per cent maximum.

The appellant sought leave to appeal on the basis that the sentencing judge erred in awarding only a 20 per cent discount, and that she was denied procedural fairness when the judge reduced the discount from what had apparently been indicated during the hearing without giving her an opportunity to be heard on the change.

  • Whether the sentencing judge erred by applying a 20 per cent rather than 25 per cent discount for an early guilty plea entered at the first available opportunity
  • Whether the sentencing judge denied the appellant procedural fairness by apparently reverting to a lower discount than he had previously indicated, without affording the appellant an opportunity to be heard before pronouncing sentence

Decision

The Court of Criminal Appeal confirmed that there is no entitlement to any particular discount for a guilty plea, and no presumption in favour of a maximum discount. For Commonwealth offenders, the discount reflects willingness to facilitate the course of justice rather than the purely utilitarian value of the plea that applies in state offences.

Nonetheless, Fullerton J was persuaded that procedural fairness had been denied. The exchange between the sentencing judge and Crown Prosecutor after sentence was pronounced revealed that the judge had indicated during the hearing that he would apply a 25 per cent discount, and that the appellant's legal representative had proceeded on that basis. The judge then silently reverted to 20 per cent without giving the appellant an opportunity to address the change.

The Court accepted the Crown's position that the judge's reasons could be inferred from the post-sentence exchange, but found that the indication given was sufficient to establish a denial of procedural fairness. The Court was also satisfied that applying a slightly higher discount would not reduce the sentence to a level inappropriate given the seriousness of the offending.

Accordingly, leave to appeal was granted and the sentence was re-imposed with a 25 per cent discount, reducing the total term to 7 years and the non-parole period to 4 years and 2 months.

Orders Made

  • Leave to appeal granted
  • Sentence imposed in the District Court quashed
  • Appellant re-sentenced to 7 years imprisonment commencing 4 August 2008 and expiring 3 August 2015, with a non-parole period of 4 years and 2 months; eligible for release to parole on 3 October 2012

Key Takeaways

  • There is no entitlement to and no presumption favouring any specific percentage discount for a guilty plea, including the 25 per cent maximum; the discount remains one factor in a discretionary sentencing exercise.
  • For Commonwealth offenders, the guilty plea discount reflects willingness to facilitate the course of justice and is distinct from the utilitarian value recognised for state offences.
  • Where a sentencing judge has indicated during proceedings that a particular discount will be applied, and the defence has proceeded on that basis, reverting to a lesser discount without affording the offender an opportunity to be heard constitutes a denial of procedural fairness.
  • The Court of Criminal Appeal confirmed that an early plea entered within three months of extradition, combined with non-opposition to the extradition itself, was capable of supporting the maximum discount for a Commonwealth offender.
  • A reduction in the guilty plea discount does not automatically produce appealable error; the court must also be satisfied that the resulting sentence was not within the appropriate range given the overall objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5, 400.4(1)
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- Fairbairn v R [2006] NSWCCA 337; 165 A Crim R 434