Citation: [2011] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 21 April 2011
Judges: Basten JA, RS Hulme J, Hall J
Background
The applicant was sentenced in the District Court in June 2009 for two serious firearms offences: possession of an unauthorised prohibited pistol and possession of an unregistered firearm. The offences arose from a police stop in the early hours of the morning, during which a loaded 9mm pistol, a balaclava, gloves, a machete, and a stun device were found in the vehicle the applicant was travelling in with co-offenders. The sentencing judge described the objective seriousness as falling in the highest range.
The applicant had pleaded guilty before committal for sentence in the Local Court. Under the Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)(a), that entitled him to a mandatory sentencing discount of 25%. Through an oversight shared by all parties, the sentencing judge applied only a 20% discount. The same error had affected the sentences of two co-offenders, Do and Tran, whose appeals to the Court of Criminal Appeal had already been decided, with their sentences reduced and with small additional reductions applied beyond what the 25% discount alone required.
The applicant sought leave to appeal out of time. The Crown conceded the sentencing error. The remaining controversy was whether the Court should go further and reduce the applicant's sentence by an additional amount, to restore the proportional relationship between his sentence and those now being served by his co-offenders.
Legal Issues
- Whether the failure to apply the mandatory 25% guilty-plea discount under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008 constituted a material error requiring resentencing.
- Whether, once that error was established, the Court was obliged to re-exercise the full sentencing discretion afresh.
- Whether the additional reductions made to co-offenders' sentences on their appeals required a corresponding further reduction to the applicant's sentence, on grounds of parity or fairness.
Decision
Issue 1: The statutory discount error
All three judges agreed that the failure to apply the 25% discount was a material error. The Crown conceded the point. Leave to appeal was granted and the original sentences were set aside. The parties agreed on the corrected figures, applying the 25% reduction to the notional starting points used by the sentencing judge.
Issue 2: Whether a full resentencing exercise was required
The applicant argued that once error is established, the Court must re-exercise the sentencing discretion entirely afresh. Hall J, with whom the others agreed, rejected that proposition on the facts. The Court confirmed that it may set aside sentences and resentence without necessarily conducting a full independent exercise of discretion. The nature and scope of the resentencing exercise depends on the circumstances of the individual case.
Issue 3: Parity with co-offenders and any further reduction
Hall J analysed the sentences the Court had imposed on Do and Tran, which included modest additional reductions beyond the strict 25% discount. He found that the difference between the mechanically corrected sentence for the applicant and the sentences now being served by his co-offenders was marginal. It could not fairly be characterised as a marked, gross, glaring, or manifest disparity of the kind that would, of itself, warrant intervention.
Basten JA observed that the reasons given in the co-offenders' appeals did not explain the basis for those additional reductions, raising the possibility that no additional reduction had actually been intended. His Honour held that, in the absence of any broader invitation from the parties, the Court should not embark on a general resentencing exercise. The applicant's residual submission, that some further reduction was warranted on grounds of "fairness" alone, was rejected. RS Hulme J added that, but for the statutory obligation to apply the 25% discount, the original sentences were so lenient given the objective seriousness and the applicant's record that he would not have contemplated reducing them at all.
Orders Made
- Leave to appeal against sentence granted out of time.
- Sentences of the District Court set aside.
- Applicant resentenced as follows:
- Count 1 (possession of unauthorised prohibited pistol): non-parole period of 3 years and 9 months commencing 10 August 2008, expiring 9 May 2012; balance of term of 1 year and 3 months expiring 9 August 2013.
- Count 2 (possession of unregistered firearm): fixed term of 2 years and 4 months commencing 10 August 2008, expiring 9 December 2010.
Key Takeaways
- Under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008, a 25% sentencing discount for a guilty plea entered before committal is mandatory; a sentencing court's failure to apply it, even through oversight shared by all parties, constitutes a material error requiring the sentence to be set aside.
- Where an appeal court intervenes on a single discrete sentencing error, it is not automatically required to re-exercise the full sentencing discretion afresh. The scope of the resentencing exercise depends on the circumstances of the particular case.
- A disparity between an applicant's corrected sentence and the sentences being served by co-offenders after their own successful appeals does not necessarily warrant a further reduction. The disparity must reach a level that is marked, gross, glaring, or manifest before it justifies independent intervention on parity grounds.
- General appeals to "fairness" as a basis for reducing a sentence beyond what a specific, identified error requires were insufficient, on their own, to enliven the Court's resentencing discretion in this case.
- Where the reasons of an appellate court do not disclose the basis for reductions made to a co-offender's sentence, that opacity weakens any inference that a comparable reduction was deliberately intended and should be replicated for a remaining co-offender.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Appeal Act 1912
- Criminal Case Conferencing Trial Act 2008
- Firearms Act 1996
- Weapons Prohibition Act 1998
Cases
- Do v R [2010] NSWCCA 182
- Douar v Regina [2005] NSWCCA 455
- Greer v R [2010] NSWCCA 40
- LJ v R [2010] NSWCCA 289
- Tran v R [2010] NSWCCA 183