Citation: [2015] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 19 October 2015
Judge(s): Bathurst CJ; Hidden J; Davies J
Background
The applicant pleaded guilty at the earliest opportunity to dealing with more than $100,000 reasonably suspected of being proceeds of crime, contrary to the Criminal Code Act 1995 (Cth). The total amount involved was $990,050, with the applicant's potential financial benefit calculated at 7.5% of that sum, approximately $74,253.75.
The sentencing judge imposed 20 months imprisonment with a recognisance release order (an order for conditional release on entering a bond) after 12 months. His Honour found that, absent the plea, the appropriate sentence would have been 24 months, and applied a 25% discount for the guilty plea.
The problem was mathematical: a 25% discount on 24 months produces 18 months, not 20 months. The applicant sought leave to appeal on the basis of that miscalculation, and the Crown conceded the error.
Legal Issues
- Whether the sentencing judge made an arithmetical error in applying a 25% guilty plea discount to the notional head sentence of 24 months
- Whether the error warranted resentencing by the Court of Criminal Appeal
- Whether the applicant's knee injury, arising after the original sentence, warranted a greater variation between the recognisance release period and the total term
Decision
Bathurst CJ (with Hidden J and Davies J agreeing) granted leave to appeal. The Crown's concession that the sentencing judge had miscalculated the 25% discount was accepted without contest. A 25% reduction on 24 months produces 18 months imprisonment, not the 20 months imposed.
Because a sentencing error had been established, the Court of Criminal Appeal was required to resentence the applicant afresh, independently exercising its own sentencing discretion in accordance with Kentwell v The Queen [2014] HCA 37. The Court adopted the undisputed factual findings from the original sentence, including findings as to the objective seriousness of the offence and the applicant's subjective circumstances.
The applicant submitted that a post-sentence knee injury should justify a greater proportional reduction in the recognisance release period relative to the total term. Bathurst CJ declined that submission, having regard to the objective seriousness of the offence and the limited difference any such variation would produce. The Court maintained the original 60% ratio between the recognisance release period and the total term.
Orders Made
- Leave to appeal granted
- Original sentence quashed
- Sentence of 18 months imprisonment imposed, commencing 6 January 2015 and expiring 5 July 2016
- Recognisance release order made under s 20(1)(b) of the Crimes Act 1914 (Cth), directing the applicant's release on 25 November 2015, upon entering into a recognisance of $250 (without security) to be of good behaviour until 5 July 2016
Key Takeaways
- A demonstrable arithmetical error in applying a guilty plea discount is a sufficient ground for the Court of Criminal Appeal to intervene and resentence the offender
- Where resentencing is required, the Court of Criminal Appeal must independently exercise its sentencing discretion rather than simply correcting the arithmetic, consistent with the High Court's approach in Kentwell v The Queen
- The 25% guilty plea discount itself was not in dispute; the sole error was its mechanical application to the notional head sentence
- Post-sentence developments, such as a physical injury suffered after the original sentence, do not automatically alter the proportional relationship between the total term and the recognisance release period, particularly where the offence is objectively serious
- In dismissing the submission about the knee injury, the Court confirmed that any such variation must be weighed against the nature and seriousness of the underlying offence
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), s 20(1)(b)
Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601