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Court of Criminal Appeal 13 September 2013

R v GD

[2013] NSWCCA 212

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CROWN APPEALED ALLOWED RESPONDENT RESENTENCED

Citation: R v GD [2013] NSWCCA 212
Court: Court of Criminal Appeal, NSW
Date: 13 September 2013
Judges: Leeming JA, R A Hulme J, Button J (all agreeing with Button J)

Background

The respondent pleaded guilty on the third day of his trial to a home invasion offence carrying a maximum penalty of 25 years' imprisonment. The offence involved entering the victim's home armed with a knife, stealing over $15,000 in cash, threatening further extortion of $100,000, and leaving the victim hogtied and injured.

After pleading guilty, the respondent participated in a lengthy recorded police interview in which he named co-offenders and undertook to give evidence against them. At sentencing in November 2011, the District Court judge applied a combined 25 per cent discount, covering both the late guilty plea and the anticipated assistance to authorities, without separately quantifying each component.

The respondent subsequently failed to fulfil his undertaking. In proceedings against the named co-offenders, he was found to be an unreliable witness and openly admitted he had pleaded guilty and cooperated with police primarily to be present for the birth of his child. The Crown appealed under section 5DA of the Criminal Appeal Act 1912, which permits the Crown to appeal a sentence where an offender has failed to provide promised assistance.

  • Whether the sentence should be increased, given the respondent's failure to provide the foreshadowed assistance to authorities
  • How to apportion the components of the sentencing judge's undivided 25 per cent global discount among: (1) the utilitarian value of the late guilty plea; (2) past assistance already provided at the time of sentencing; and (3) anticipated future assistance that was never provided
  • Whether any separate discount should have been applied for the hardship of serving a sentence in protective custody

Decision

The parties agreed the sentence had to be increased; the sole question before the Court of Criminal Appeal was by how much. The key analytical task was to reconstruct the sentencing judge's reasoning and identify what portion of the 25 per cent discount was attributable to future assistance, as that was the component required to be removed.

Button J concluded that the original 25 per cent global discount was made up of three parts: 5 per cent for the utilitarian value of the late plea (which was limited given the plea came near the close of the Crown case), 5 per cent for past assistance already provided to police at the time of sentencing, and 15 per cent for the anticipated future assistance that the respondent ultimately failed to give.

The Court rejected any argument that a separate discount was warranted for the hardship of serving time in protective custody. Button J held that the sentencing judge's remarks indicated this hardship was already factored into the discount given for assistance, consistent with the approach in R v Perez-Vargas & Stevens and R v Gallagher.

The correct mathematical approach was to reverse the 25 per cent discount from the imposed head sentence to recover the starting point, and then re-apply only the retained 10 per cent discount (5 per cent for the plea and 5 per cent for past assistance). The same ratio between the non-parole period and head sentence applied by the sentencing judge (61 per cent) was maintained in the resentencing.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court on 4 November 2011 quashed
  • Respondent resentenced to a non-parole period of 4 years 9 months, with a balance of term of 3 years (total head sentence 7 years 9 months), dated from 18 October 2011
  • Non-parole period to expire 17 July 2016; total term to expire 17 July 2019
  • Respondent eligible for parole on 17 July 2016

Key Takeaways

  • Where a sentencing judge applies a global discount combining a guilty plea and assistance to authorities without separating the components, the Court of Criminal Appeal will reconstruct the likely attribution of each part in order to determine the correct upward adjustment on a Crown appeal under section 5DA.
  • A discount for future assistance is conditional: where an offender fails to provide promised assistance, the component of the sentence reduction attributable to that future assistance must be removed.
  • Past assistance already provided at the time of sentencing is treated as a discrete and retained element of any discount, even after the offender fails to honour undertakings about future cooperation.
  • Under the approach confirmed in R v Perez-Vargas & Stevens and R v Gallagher, the hardship of serving a sentence in protective custody does not automatically attract a separate discount; it may properly be subsumed within the discount given for assistance.
  • In dismissing the argument for a standalone protective custody discount, the Court emphasised that the sentencing remarks themselves are the primary source for identifying what factors the original judge had already accounted for within a global reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99(1), 112(3)
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), s 38

Cases:
- LB v R [2013] NSWCCA 70
- R v Gallagher (1991) 23 NSWLR 220
- R v Perez-Vargas & Stevens (1986) 8 NSWLR 559; (1986) 25 A Crim R 194