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Court of Criminal Appeal 26 August 2015

Villalon v R

[2015] NSWCCA 229

Homicide
CRIMINAL LAW APPEAL SENTENCING DISCOUNT FOR GUILTY PLEA APPEAL SENTENCING

Citation: Villalon v R [2015] NSWCCA 229
Court: Court of Criminal Appeal, NSW
Date: 26 August 2015
Judges: Gleeson JA at [1]; Adams J at [88]; Fagan J at [89]

Background

The appellant was convicted of manslaughter following two jury trials. He had been charged with the murder of his stepfather in Sydney in February 2012, but the jury found him not guilty of murder and guilty of manslaughter on the basis of substantial impairment by an abnormality of mind, namely an underlying schizophrenic illness.

As early as December 2012, the appellant offered to plead guilty to manslaughter in satisfaction of the murder charge. He confirmed that offer at the committal hearing in April 2013. The Crown rejected the offer in May 2013, requiring the matter to proceed to trial so that a jury could determine the question of his mental condition.

The sentencing judge at first instance imposed a sentence of 8 years imprisonment with a non-parole period of 5 years 6 months. The appellant challenged the sentence on two grounds: that the discount for his guilty plea should have been 25% rather than 20%, and that the sentencing judge had erred in the sequence in which he determined the non-parole period.

  • Whether the appellant's offer to plead guilty to manslaughter, made during committal proceedings and refused by the Crown, constituted an indication of a guilty plea at the earliest reasonable opportunity, warranting a 25% discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether any circumstances existed that eroded the utilitarian value of the guilty plea, justifying a reduction below the 25% maximum discount.
  • Whether the sentencing judge erred procedurally by determining the non-parole period before fixing the head sentence and considering special circumstances.

Decision

On the guilty plea discount, the Court of Criminal Appeal found that the sentencing judge erred in allowing only 20%. The appellant had done everything within his power to indicate his plea at the earliest opportunity. The Crown had not articulated any principled basis, either at the sentencing hearing or on appeal, for why the discount should fall in the lower part of the 10% to 25% range. No circumstances were identified that eroded the utilitarian value of the plea.

The Court emphasised that the requirement for a trial arose solely from the Crown's refusal to accept the manslaughter plea, not from any delay or equivocation by the appellant. Fagan J noted specifically that, had the Crown accepted the plea when first offered, there would have been no justification for departing from the standard 25% discount that reflects the full utilitarian value of a guilty plea.

On the second ground, the Court found no error in the sentencing judge's approach to the non-parole period. The judge had not determined the non-parole period before the head sentence, nor had he failed to consider special circumstances in the correct sequence.

The appeal succeeded on the first ground. The Court resentenced the appellant to 7 years 6 months imprisonment with a non-parole period of 5 years 1 month, commencing on 28 February 2012.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Appellant resentenced to imprisonment for 7 years 6 months, with a non-parole period of 5 years 1 month commencing 28 February 2012 and expiring 27 March 2017, with a balance of term of 2 years 5 months commencing 28 March 2017 and expiring 27 August 2019.

Key Takeaways

  • Where an accused offers to plead guilty at the committal stage and the Crown refuses that offer, requiring the matter to go to trial, the accused is not penalised in the plea discount calculation: the earliest reasonable opportunity for the plea is assessed by reference to when the accused was able to indicate the plea, not by whether the Crown accepted it.
  • A discount of 25% for a guilty plea represents the full utilitarian value recognised since R v Thompson and Houlten (2000); departing from that figure requires a principled basis, not merely an unsubstantiated Crown submission that the discount should fall "in the lower part of the range."
  • In dismissing the second ground, the Court of Criminal Appeal confirmed that the sentencing judge had committed no procedural error in the sequence of determining the head sentence and non-parole period.
  • Fagan J's concurring reasons underscore that the Crown's exercise of its discretion to reject an offered plea and require a jury trial carries consequences for sentencing: the resulting trial cannot then be used to diminish the credit the accused would otherwise receive.
  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the utilitarian value of a guilty plea is assessed by reference to the practical benefits it delivers to the administration of justice, and where no such benefits were withheld by the accused, no reduction in the maximum discount was warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- House v The King [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markham v R [2007] NSWCCA 295
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424
- Pitt v R [2014] NSWCCA 70
- R v AB [2011] NSWCCA 229; 59 MVR 356
- R v BA [2014] NSWCCA 148
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- R v Pennisi [2001] NSWCCA 326
- R v Thompson and Houlten [2000] NSWCCA 56; 49 NSWLR 383