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Court of Criminal Appeal 4 November 2015

Raad v R

[2015] NSWCCA 276

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCE EARLY PLEA WHETHER DISCOUNT GIVEN FOR PLEA DISCOUNT BUILT INTO SENTENCE IMPOSED.

Citation: Raad v R [2015] NSWCCA 276
Court: Court of Criminal Appeal, NSW
Date: 4 November 2015
Judges: Bathurst CJ, Hidden J, Davies J

Background

The applicant pleaded guilty at Burwood Local Court to firing a firearm at a dwelling house with reckless disregard for the safety of any person, an offence carrying a maximum of 14 years imprisonment and a standard non-parole period of five years. The plea was entered on 3 February 2014. The offending arose from a violent inter-family dispute, during which the applicant drove a co-offender to a residential address in Auburn and directed him to fire. The co-offender discharged at least eight rounds from a .45 calibre pistol at the target dwelling and an adjoining property, both of which contained occupants including children.

The applicant was sentenced in the District Court on 23 June 2014 to a non-parole period of three years and six months, with an additional term of two years and six months, giving a total sentence of six years. Additional drug possession and assault offences were taken into account on Form 1 documents.

The applicant appealed on a single ground: that the sentencing judge failed to give any, or any adequate, discount for the early plea of guilty, despite the Crown conceding that a 25 per cent discount was appropriate.

  • Whether the sentencing judge erred by failing to apply, or failing to reflect in the sentence, a discount for the applicant's early guilty plea under ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the absence of any mention of a plea discount in the formal sentencing remarks, taken alone, established that no discount had been applied.
  • Whether, if error were established, a lesser sentence was in any event warranted.

Decision

The Court of Criminal Appeal considered the transcript of the sentencing hearing, not merely the formal remarks on sentence. The exchanges between the sentencing judge and counsel were significant. At the end of the hearing, the judge indicated the sentences he proposed to impose. Counsel for the applicant then asked about the plea discount, and the judge confirmed a starting point of eight years, explaining that the six-year sentence reflected a 25 per cent reduction for the early plea. Those exchanges demonstrated that the discount had in fact been built into the sentence, even though the formal remarks on sentence contained no express reference to it.

The Court distinguished the decision in Wei v R, on which the applicant relied. In Wei, it was apparent from the sentence itself that, had a discount been applied, the resulting sentence would have been manifestly excessive. No such argument was available here: the applicant expressly declined to contend that the six-year sentence was manifestly excessive. The absence of a manifestly excessive outcome therefore provided no basis for inferring that the discount had been overlooked.

Davies J (with whom Bathurst CJ and Hidden J agreed) further found that, even if an error had been established, no lesser sentence than six years was warranted. The offending was of very high objective seriousness. Eight rounds were fired into two homes occupied by adults and children, and such offences were prevalent. The Form 1 assault offence was also objectively serious. The applicant's subjective circumstances, though real and considered at length by the sentencing judge, could only mitigate the appropriate sentence to a limited degree.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to mention a guilty plea discount expressly in formal remarks on sentence does not, without more, establish that the discount was overlooked; the full transcript of the sentencing hearing may be examined to determine the basis on which the sentence was reached.
  • Where the transcript reveals exchanges in which a judge confirms a starting point and explains a reduction attributable to an early plea, the Court of Criminal Appeal may be satisfied that the discount was properly applied even in the absence of formal written acknowledgment.
  • The principle in Wei v R that an inference of error may be drawn where the sentence would be manifestly excessive if no discount were applied operates only where a manifest excess argument is actually available and pressed.
  • Under ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999, an early guilty plea is a statutory mitigating factor, but the adequacy of its reflection in a sentence must be assessed on the full record, not the remarks on sentence alone.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that condign sentences for firearm offences involving multiple shots fired into occupied residences will be upheld even where subjective circumstances are substantial, if those circumstances can only marginally reduce what the objective gravity of the offence demands.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Peiris v R [2014] NSWCCA 58
- R v Robinson [2014] NSWCCA 12
- RCW v R (No. 2) [2014] NSWCCA 190
- Thammavongsa v Regina [2015] NSWCCA 107
- Wei v R [2015] NSWCCA 66