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Court of Criminal Appeal 10 December 2010

LJ v Regina

[2010] NSWCCA 289

Sexual offences
CRIMINAL LAW SENTENCING CRIMINAL CASE CONFERENCING TRIAL ACT MATERIAL ERROR SENTENCE

Citation: LJ v Regina [2010] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 10 December 2010
Judge(s): James J, Hall J, Price J (unanimous, Price J delivering reasons)

Background

The applicant pleaded guilty in the Local Court to a charge of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900, with the aggravating circumstance being that the complainant was under 16 years of age at the time. Three related offences (two counts of aggravated indecent assault and one count of an act of indecency) were placed on a Form 1 to be taken into account on sentencing. All offences involved the same complainant and were committed between 1996 and 1997.

The matter proceeded to the District Court, where the applicant was sentenced to imprisonment with a non-parole period of 16 months and a balance of term of 10 months. The sentencing judge applied a 15 per cent discount for the utilitarian value of the guilty plea.

The applicant sought leave to appeal, contending that the sentencing judge made several errors, including in the approach taken to the plea discount, in the application of the Criminal Case Conferencing Trial Act 2008, and in finding that the applicant was in a position of trust in relation to the complainant.

  • Whether the sentencing judge erred by reducing the utilitarian discount for the guilty plea because the complainant was required to give evidence at the sentencing hearing on a disputed factual matter
  • Whether the Criminal Case Conferencing Trial Act 2008 required consideration and, if so, whether its provisions affected the appropriate discount
  • Whether the sentencing judge erred in finding that the applicant occupied a position of trust in relation to the complainant
  • Whether the sentencing judge properly resolved the factual dispute about the duration and frequency of the offending
  • Whether a lesser sentence was warranted in all the circumstances

Decision

The Court of Criminal Appeal identified material error in the District Court's sentencing. The sentencing judge had conflated two distinct considerations: the utilitarian value of the guilty plea (which generates a discount to encourage early pleas and reduce the burden on the justice system) and the limited inconvenience caused to the complainant in giving brief evidence on a disputed factual matter. These are separate matters, and reducing the utilitarian discount on account of the complainant having to give evidence was an error of principle.

The Court also found that the sentencing judge had failed to take into account the Criminal Case Conferencing Trial Act 2008. Under that Act, where a plea of guilty is entered after participation in a case conference, the court is directed to give additional consideration to the early plea. This had not been addressed in the District Court's sentencing remarks, constituting a further material error.

On the position of trust issue, the Court found error in the District Court's finding. The nature of the relationship between the applicant and the complainant, as established on the evidence, did not support that characterisation as an aggravating factor.

Having identified those errors, the Court re-sentenced the applicant. It applied a 25 per cent discount for the utilitarian value of the plea (increased from the 15 per cent allowed below), set an undiscounted starting point of two years' imprisonment taking into account the Form 1 matters, and arrived at a full term of 18 months. The Court declined to suspend the sentence, holding that a fully suspended term would not adequately reflect the objective seriousness of the offence. A special circumstance finding was made, reducing the non-parole period relative to the balance of term to allow for ongoing rehabilitation.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • The sentence imposed in the District Court quashed
  • In lieu, the applicant convicted and sentenced to 18 months' imprisonment, comprising a non-parole period of 12 months commencing 18 February 2010 and expiring 17 February 2011, and a balance of term of 6 months expiring 17 August 2011
  • The applicant to be released on parole on 17 February 2011

Key Takeaways

  • The utilitarian value of a guilty plea is a distinct sentencing consideration from any inconvenience caused to witnesses during ancillary proceedings; conflating the two when assessing the discount constitutes an error of principle.
  • Under the Criminal Case Conferencing Trial Act 2008, a sentencing court is required to address that statute's provisions where a plea follows a case conference; omitting any consideration of those provisions is a material error on sentence.
  • A finding that an offender occupied a "position of trust" as an aggravating factor must be supported by evidence establishing the nature of that relationship; the Court of Criminal Appeal set aside the finding here on the basis that the evidence did not support it.
  • Where material errors are established on a sentencing appeal, the Court of Criminal Appeal will re-sentence rather than simply remit, applying its own assessment of the applicable discount and the appropriate starting point.
  • A special circumstance finding, which alters the statutory ratio between the non-parole period and the balance of term, remains available where the sentencing court is satisfied that ongoing rehabilitation needs warrant a longer period on parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61N(1)
- Criminal Case Conferencing Trial Act 2008 (NSW), s 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(b), 21A(2)(k), 21A(3)(b), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Blanco v R [1999] NSWCCA 121
- Do v R [2010] NSWCCA 182
- Donaczy v R [2010] NSWCCA 143
- Georgopolous v R [2010] NSWCCA 246
- R v Blackman and Walters [2001] NSWCCA 121
- R v Borkowski [2009] NSWCCA 102
- R v FV [2006] NSWCCA 237
- R v H [2005] NSWCCA 282
- R v MJR (2002) 130 A Crim R 481
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- Sivell v R [2009] NSWCCA 286
- Tran v R [2010] NSWCCA 183