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Court of Criminal Appeal 26 September 2011

Passaris v R

[2011] NSWCCA 216

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Passaris v R [2011] NSWCCA 216
Court: Court of Criminal Appeal, NSW
Date: 26 September 2011
Judge(s): Bathurst CJ; Hall J; Harrison J

Background

The appellant was convicted of recklessly causing grievous bodily harm contrary to s 35 of the Crimes Act 1900. The offence was treated as falling well above the mid-range of objective seriousness, and the sentencing judge imposed a term close to the maximum penalty of 10 years imprisonment.

Before committal for trial, the appellant had participated in a compulsory conference under the Criminal Case Conferencing Trial Act 2008 ("the Act"). During that process, the appellant offered to plead guilty to the same offence, but on the basis of a particular set of facts put forward by the defence. The prosecution rejected that offer before committal. After committal, the prosecution accepted a plea of guilty on a different factual basis.

On appeal, the appellant argued the sentencing judge erred by failing to consider whether a greater sentencing discount than the standard range applied under the Act, given that the prosecution had rejected his pre-committal plea offer and later accepted a plea to the same offence after committal.

  • Whether the pre-committal plea offer, made on the appellant's own factual basis and rejected by the prosecution, constituted an "offer by the offender to plead guilty" within the meaning of s 17(5)(b) of the Criminal Case Conferencing Trial Act 2008, so as to potentially attract a higher sentencing discount.
  • Whether the compulsory conference certificate, which was unsigned by the prosecution and the accused, was valid for the purposes of the Act.
  • Whether the sentencing judge's failure to engage with s 17(4) of the Act constituted a material error that warranted intervention on appeal.

Decision

The three judges agreed on the outcome (leave to appeal granted, appeal dismissed) but took somewhat different paths on the statutory construction question.

The plea offer and s 17(5)(b): Bathurst CJ and Harrison J held that an offer to plead guilty made on a particular factual basis still constitutes an "offer to plead guilty" within s 17(5)(b), even where the ultimate plea is accepted on different facts. They reasoned that s 12(3)(e) of the Act expressly contemplates that a plea may be accepted while facts remain in dispute. The words of the section, read with the purpose stated in s 6(3), support treating the offer as falling within s 17(5)(b) so long as the admitted facts are sufficient to constitute the elements of the offence. Hall J took a narrower view, finding the offer did not fall within s 17(5)(b) because the certificate was unsigned and because the offer was conditional on the Crown accepting the appellant's proposed facts, rendering it equivocal.

The unsigned certificate: Bathurst CJ noted he was inclined to regard the signing requirement in s 12(2) as mandatory, but declined to decide the point because it had not been raised before the sentencing judge and was not argued on appeal.

Whether the sentencing discretion miscarried: Despite finding the sentencing judge erred by failing to consider the s 17(4) question, the Court concluded this error did not cause a miscarriage of the sentencing discretion. The sentencing judge applied a discount within the applicable 12.5 to 25 per cent range prescribed by s 17(2), and the Court was not persuaded that any lesser sentence was warranted. A sentence close to the maximum was not of itself evidence of error, given the judge's finding that the offence fell well above the mid-range of seriousness and the severity of the injuries inflicted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An offer to plead guilty made during a compulsory conference, but on a particular factual basis proposed by the defence, can still constitute an "offer to plead guilty" within s 17(5)(b) of the Criminal Case Conferencing Trial Act 2008, even if the prosecution ultimately accepts the plea on different facts. This is the view of Bathurst CJ and Harrison J; Hall J disagreed.
  • Under s 12(3)(e) of the Act, the conference certificate scheme expressly accommodates pleas accepted where the factual basis remains partly in dispute. That provision informed the majority's reading of s 17(5)(b).
  • Where factual disputes exist at sentencing, the approach confirmed in R v Palu [2002] NSWCCA 381 applies: disputed facts must be identified clearly at the outset and resolved by an accusatorial process on evidence before the court.
  • A sentencing judge's failure to engage with s 17(4) of the Act constitutes error, but the error will not automatically result in resentencing if the discount actually applied fell within the prescribed range and no lesser sentence was warranted in law.
  • A sentence close to the maximum penalty does not of itself demonstrate error; it must be assessed against the objective seriousness of the specific offending, consistent with the principle in Ibbs v The Queen (1987) 163 CLR 447 that the maximum is reserved for the worst category of cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Case Conferencing Trial Act 2008 (NSW), particularly ss 6(3), 12(2), 12(3), 17(2), 17(4), 17(5)(b)
- Criminal Case Conferencing Trial Regulation 2008 (NSW)

Cases:
- Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
- Marlow v R [1990] Tas R 1
- Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197
- Chompeay v R [2011] NSWCCA 96
- Do v R [2010] NSWCCA 182
- Greer v R [2011] NSWCCA 40
- LJ v R [2010] NSWCCA 289
- Tran v R [2010] NSWCCA 183
- R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528
- S v Recorder of Manchester [1971] AC 481