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Court of Criminal Appeal 3 October 2014

Woodward v R

[2014] NSWCCA 205

HomicideTraffic & driving
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY WHETHER PLEA DISREGARDED GUIDELINE JUDGMENT ON PLEAS OF GUILTY WHETHER DISCOUNT CAN BE INFERRED

Citation: Woodward v R [2014] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 3 October 2014
Judges: Hoeben CJ at CL, Fullerton J, Hamill J (unanimous)

Background

The applicant pleaded guilty in the Newcastle Local Court to dangerous driving occasioning death, an offence under s 52A(1)(c) of the Crimes Act 1900 (NSW) carrying a maximum of 10 years imprisonment. The plea was entered at the first available opportunity. The offence involved the applicant driving while over the legal blood alcohol limit, speeding, breaching his P-plate conditions, and crossing double separation lines while approaching the crest of a hill, causing the death of another person.

The District Court sentenced the applicant to a total of six years imprisonment, comprising a non-parole period of four and a half years. Notably, the sentencing judge made no reference whatsoever to the applicant's plea of guilty in the sentencing remarks.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to take the plea into account, that special circumstances were not found, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's failure to mention the guilty plea indicated that no discount had been applied, contrary to the guideline in R v Thompson
  • Whether, even if a 25% discount could be inferred mathematically from the sentence, the starting point of eight years was nonetheless manifestly excessive
  • Whether special circumstances warranted a non-parole period of less than 75% of the total sentence

Decision

On ground one, the Court found the case unusual because the sentencing judge had not referred to the guilty plea at all, not even in passing. The guideline in R v Thompson requires a sentencing judge to state explicitly that a plea has been taken into account and, ordinarily, to quantify its effect. The Court reaffirmed that failure to do so will generally be taken to indicate the plea received no weight.

The respondent submitted that a 25% discount could be inferred because the sentence of six years appeared to reflect a starting point of eight years with a 25% reduction applied. Hamill J accepted there was considerable force in that argument, but held it did not resolve the broader question of whether the starting point was itself manifestly excessive given the maximum penalty and the applicable guideline judgments in R v Jurisic and R v Whyte.

Those guideline judgments were directed at cases involving a late plea (attracting a discount of around 10%). The Court found that a starting point of eight years was too high when the applicant was entitled to the top of the utilitarian discount range at 25%. Taking into account the applicant's moral culpability, the aggravating features of the offending, and his genuine remorse, Hamill J assessed the appropriate starting point at five years before applying the 25% early plea discount.

On special circumstances, the Court found none were established. The non-parole period was set at 75% of the total sentence, rounded to produce sensible figures.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court quashed
  • Applicant resentenced to a non-parole period of two years and nine months commencing 25 November 2013 and expiring 24 August 2016, with a balance of term of one year commencing 25 August 2016 and expiring 24 August 2017
  • Applicant eligible for release on parole at expiration of the non-parole period

Key Takeaways

  • The guideline in R v Thompson requires sentencing judges to state explicitly that a guilty plea has been taken into account; failure to do so will generally be taken to mean the plea received no weight, even where a discount might theoretically be inferred from the mathematics of the sentence.
  • A plea entered at the first available opportunity should generally attract a discount at or near the top of the 10 to 25% utilitarian range established in R v Thompson, which in this case was 25%.
  • Where a respondent argues that a guilty plea discount can be inferred from the arithmetic of the sentence, that inference does not answer the separate question of whether the underlying starting point was manifestly excessive.
  • The guideline judgments in R v Jurisic and R v Whyte were framed around cases involving a late plea; courts applying those guidelines to an early plea must account for the more substantial discount the offender is entitled to receive.
  • No error was established on the special circumstances ground; the standard non-parole period of 75% applied in the absence of evidence justifying a departure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Thompson [2000] NSWCCA 309; 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on dangerous driving offences)
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (confirmation and elaboration of Jurisic guidelines)
- Convery v R [2014] NSWCCA 93
- Akkawi v R; Akkawi v R [2012] NSWCCA 11
- Rios v R [2012] NSWCCA 8
- Stanyard v R [2013] NSWCCA 134
- Versluys v R [2014] NSWCCA 98
- WW v R [2012] NSWCCA 165
- Dinsdale v The Queen [2000] HCA 54