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Court of Criminal Appeal 11 November 2015

Marrow v R

[2015] NSWCCA 282

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE UTILITARIAN VALUE OF GUILTY PLEA APPEAL AGAINST SENTENCE PURPOSES OF SENTENCING APPEAL AGAINST SENTENCE

Citation: Marrow v R [2015] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 11 November 2015
Judges: Hidden J, Davies J, Adamson J

Background

The appellant had pleaded guilty in the Local Court to a single count of robbery under s 94 of the Crimes Act 1900 (NSW), carrying a maximum penalty of fourteen years' imprisonment. The offence involved entering a bank branch, handing a teller a note demanding money and claiming to have a gun, and leaving with $6,750. He was arrested five days later and cooperated with police from the outset.

The appellant had a prior record in Western Australia for a series of relevantly similar offences in 2007, involving notes demanding money at service stations while claiming to be armed. At sentencing, psychiatric evidence from Dr Furst diagnosed him with chronic, treatment-resistant schizophrenia, substance use disorder, and pathological gambling, with an opinion that he had been experiencing a psychotic episode at the time of the offence.

Christie ADCJ sentenced the appellant to six years' imprisonment with a non-parole period of three years and six months. The appellant challenged that sentence on three grounds: that the sentencing judge had applied only a 20% guilty plea discount rather than the expected 25%; that the judge had failed to properly engage with the psychiatric evidence; and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying a 20% discount for the guilty plea, when the plea was entered at the earliest available opportunity, on the basis that the offence involved planning.
  • Whether the sentencing judge properly considered the psychiatric evidence relating to the appellant's mental illness, including the relevant parts of Dr Furst's reports.
  • Whether the overall sentence of six years with a non-parole period of three years and six months was manifestly excessive.

Decision

Guilty plea discount. The Court of Criminal Appeal found that the sentencing judge had misapplied the discount for the guilty plea by taking the level of planning in the offence into account when determining the discount percentage. Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and consistently with R v Thomson; R v Houlton (2000) 49 NSWLR 383, the utilitarian value of a plea reflects the benefit to the criminal justice system of avoiding a trial, not the nature of the offence itself. Where a plea is entered at the earliest available opportunity, there is a general expectation that the maximum discount of 25% will be applied. The Court held that reducing the discount because the offence appeared planned was an irrelevant consideration, and the discretion had therefore miscarried.

Mental illness. The Court held that the sentencing judge had not engaged sufficiently with the critical parts of Dr Furst's reports. In particular, the judge had applied R v Lawrence [2005] NSWCCA 91 in a way that effectively neutralised the mitigating weight of the appellant's schizophrenia by reference to his prior similar offending. The Court confirmed, consistent with R v Engert (1995) 84 A Crim R 67, that the relevance and weight to be given to mental illness in sentencing is a matter of judgment in the particular circumstances, but that the psychiatric evidence here warranted genuine engagement rather than being set aside.

Manifest excess and resentencing. Having found error on the first two grounds, the Court proceeded to resentence. It assessed the objective seriousness of the offence as relatively high, given the threat of a firearm and the significant impact on the victim, and gave weight to the appellant's history of relevantly similar offending and the risk of reoffending. However, the Court applied a 25% discount for the early plea and found special circumstances by reason of the appellant's mental condition, adjusting the ratio between the non-parole period and the total term from the statutory 75% down to 60%. The Court arrived at a starting point of seven years, producing a total term of five years and three months with a non-parole period of three years and one month.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Christie ADCJ on 8 July 2014 quashed.
  • In lieu thereof, the appellant was sentenced to five years and three months' imprisonment commencing 25 September 2013, with a non-parole period of three years and one month.
  • Earliest date for release on parole: 24 October 2016.

Key Takeaways

  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the discount for a guilty plea reflects the utilitarian value to the justice system of avoiding a trial. The nature or degree of planning involved in the offence is not a relevant consideration when assessing that discount.
  • A general expectation exists that a plea entered at the earliest available opportunity will attract the maximum discount of 25%, consistent with R v Thomson; R v Houlton. Departing from this without a legitimate basis constitutes an error that may warrant appellate intervention.
  • The weight and relevance of mental illness evidence in sentencing remains a discretionary judgment tied to the specific circumstances of each case, but a sentencing court is required to genuinely engage with the expert psychiatric evidence placed before it.
  • Where a sentencing judge's discretion miscarries on a material issue, the Court of Criminal Appeal will resentence the offender, balancing all relevant factors afresh, including objective seriousness, criminal history, risk of reoffending, and special circumstances.
  • Special circumstances can be found, and the non-parole period adjusted accordingly, where an offender's mental illness means a longer period of post-release supervision in the community is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Cases:
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Borkowski [2009] NSWCCA 102
- R v Engert (1995) 84 A Crim R 67
- R v Lawrence [2005] NSWCCA 91
- R v Speeding [2001] NSWCCA 105
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Windle [2012] NSWCCA 222