AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 2 December 2016

Godfrey v R

[2016] NSWCCA 271

DrugsTraffic & drivingFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ATTEMPT TO SUPPLY PROHIBITED FIREARM SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Godfrey v R [2016] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 2 December 2016
Judge(s): Hoeben CJ at CL, Adams J, R A Hulme J

Background

The applicant was sentenced in the District Court at Lismore in April 2015 following guilty pleas to a range of serious offences committed over several months in 2014. The offences included three counts of supply prohibited drug on an ongoing basis, attempting to supply a prohibited firearm, possessing two unauthorised firearms, and failing to stop during a police pursuit. The sentencing judge imposed an aggregate sentence of 8 years' imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal that aggregate sentence to the Court of Criminal Appeal. He contended the sentencing judge had made errors in how the guilty plea discount was applied, had ignored his personal circumstances, and had imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge erroneously applied the 25% guilty plea discount to the aggregate sentence rather than to each individual indicative sentence
  • Whether the sentencing judge failed to give any weight to the applicant's subjective case when determining the aggregate sentence
  • Whether the aggregate sentence of 8 years was manifestly excessive

Decision

Ground 1: Guilty plea discount. The applicant correctly identified the legal principle that a guilty plea discount must be applied to individual indicative sentences, not to an aggregate sentence calculated after the fact. However, the Court was not satisfied that the sentencing judge actually made that error. Although the sentencing remarks were described as lacking clarity, the sequence of events mattered: the judge announced a starting point based on objective seriousness, then announced the indicative sentences, and only then imposed the aggregate term. The Court accepted the Crown's submission that the discount had been applied at the indicative sentence stage, not to a pre-determined aggregate.

Ground 2: Subjective case. The applicant argued that a phrase in the sentencing remarks, "returning to the seriousness of the offences," showed the judge had ignored his personal circumstances when fixing the aggregate. The Court rejected this. The sentencing judge had, immediately before that passage, reviewed the applicant's limited criminal history, prospects of rehabilitation, family support, work history, remorse, and a psychological report. The reduction from an objective starting point of at least 12 years to an aggregate of 8 years itself demonstrated that the subjective case had been factored in.

Ground 3: Manifest excess. The Court declined to find that the aggregate sentence fell outside the range of the sentencing judge's discretion. The applicant had engaged in a wide range of serious criminal offending over an extended period, including ongoing drug supply across three separate intervals, serious firearms offences, and dangerous driving. Against that, the Court acknowledged the applicant's youth, limited prior history, good prospects of rehabilitation, remorse, and family support. These matters were taken into account and the sentence was held to be comfortably within the available range.

The Court granted leave to appeal, noting the lack of clarity in certain parts of the sentencing remarks, but ultimately dismissed the appeal as lacking merit.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A guilty plea discount must be applied at the level of individual indicative sentences, not to a nominated aggregate figure calculated before those sentences are announced. This distinction, confirmed by reference to SHR v R and JM v R, remains significant when evaluating the correctness of aggregate sentencing.
  • In assessing whether a sentencing judge applied a discount correctly, the Court of Criminal Appeal will look at the sequence and substance of the sentencing remarks as a whole, not in isolation. Ambiguous language will not automatically establish error if the overall structure of the judgment is consistent with a proper approach.
  • An appeal under the aggregate sentencing regime is directed at the aggregate sentence, not the indicative sentences. A failure to properly discount indicative sentences may produce an excessive aggregate, but an error in the indicative sentences does not independently vitiate the sentence if the aggregate itself is sound.
  • Where a sentencing judge reviews an offender's subjective circumstances at length immediately before announcing sentence, the subsequent reduction from a stated objective starting point is strong evidence that those circumstances were taken into account, even if the sentencing remarks are not expressed with precision.
  • No error was established in this case, and the aggregate sentence for multiple serious drug and firearms offences was held to fall comfortably within the sentencing discretion available to the District Court judge.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25A(1)
- Firearms Act 1996 (NSW), s 7(1), s 36(1), s 51(1A), s 51CA
- Crimes Act 1900 (NSW), s 51B(1)
- Road Transport Act 2013 (NSW), s 116(2)(b), s 117(2)
- Road Rules 2008 (NSW), s 20
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- SHR v R [2014] NSWCCA 94