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7
Court of Criminal Appeal 11 April 2014

Hallak v R

[2014] NSWCCA 48

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY IN COMPANY DISCOUNT FOR GUILTY PLEA PLEA ENTERED ON MORNING OF TRIAL DISCOUNT OF 5% GIVEN

Citation: Hallak v R [2014] NSWCCA 48
Court: Court of Criminal Appeal, NSW
Date: 11 April 2014
Judges: RA Hulme J, Davies J, Adamson J

Background

The applicant was convicted of robbery in company following an incident on 19 December 2011. The applicant and his brother followed a young woman from a train at Carramar station, pursued her to a footbridge, and robbed her by force, causing her physical distress and loss of personal property. The offence was committed while the applicant was on parole for a prior offence of aggravated assault.

The applicant pleaded guilty on the morning his trial was due to commence. His co-offender brother had entered a guilty plea ten days earlier. At sentencing, Judge Colefax SC applied a 5% discount to the applicant's sentence to reflect the utilitarian value of his late plea, while according the co-offender a 10% discount.

The applicant sought leave to appeal on the sole ground that the 5% discount was an error and that he should have received 10%.

  • Whether the sentencing judge erred in applying a 5% guilty plea discount rather than 10%
  • Whether the sentencing judge was required to give more elaborate reasons for selecting a discount at the lower end of the guideline range
  • Whether the disparity between the applicant's 5% discount and the co-offender's 10% discount demonstrated appealable error
  • Whether an expectation of a 10% discount for a day-of-trial plea, derived from common practice, could establish error

Decision

Davies J (with Hulme J and Adamson J agreeing) found no error in the sentencing judge's approach. The choice of a discount for a guilty plea is a matter within the sentencing judge's discretion, as confirmed in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The range of 10%–25% outlined in Thomson is a guideline only and creates no presumption or entitlement to any particular discount.

The court found the sentencing judge's reasons were "pithy but sufficient." His Honour identified the timing of the plea (the morning of trial) and contrasted it with the co-offender's earlier plea. That distinction self-evidently explained the lesser discount: a plea on the morning of trial saves fewer court resources than one entered ten days prior, when the jury panel, witnesses, and prosecuting authorities are not yet fully committed. The judge's mistaken description of the co-offender's plea as having been entered "three weeks" rather than ten days earlier was not material to the outcome.

The applicant's submission that common practice created a legitimate expectation of 10% was rejected. Expectations derived from common practice cannot establish appellate error, just as a discount outside the Thomson range does not automatically constitute error. There was no point of principle that justified the appeal, particularly in light of the court's earlier decision in Krotiris v R [2012] NSWCCA 28, which upheld a 5% discount for a similarly late plea.

The court also noted that even had error been established, no lesser sentence was warranted. The offending was planned, committed on parole for a similar offence, and the applicant had already received some leniency through backdating of his sentence. The practical effect of increasing the discount to 10% would have been a reduction of only three months, and the court observed that such a margin would rarely justify appellate intervention.

Orders Made

• Leave to appeal be refused

Key Takeaways

  • The Thomson guideline range of 10%–25% for guilty plea discounts creates no presumption or entitlement to any figure within that range; a sentencing judge retains full discretion in selecting an appropriate discount.
  • A discount below the Thomson range, such as 5% for a day-of-trial plea, is not automatically an error and can be appropriate where the late timing significantly diminishes the plea's utilitarian value to the justice system.
  • Sufficient reasons for a below-range discount need not be elaborate; identifying the late timing of the plea and contrasting it with a co-offender's earlier plea can constitute adequate reasoning.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an expectation derived from common sentencing practice does not establish error on appeal.
  • No lesser sentence was warranted in any event, given the planned nature of the offending, the applicant's parole status at the time of the offence, and the leniency already reflected in the backdating of his sentence.

Legislation and Cases Referenced

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Krotiris v R [2012] NSWCCA 28
- R v Johnstone [2004] NSWCCA 307
- R v Scott [2003] NSWCCA 286
- R v Newman [2004] NSWCCA 113
- R v Araya [2005] NSWCCA 283
- Sullivan v R; Skillin v R [2008] NSWCCA 296
- Tunivono v R [2013] NSWCCA 176