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Court of Criminal Appeal 22 June 2018

Wagner v R

[2018] NSWCCA 124

Sexual offences
CRIMINAL LAW APPEAL SENTENCING GUILTY PLEA

Citation: Wagner v R [2018] NSWCCA 124
Court: Court of Criminal Appeal, New South Wales
Date: 22 June 2018
Judge(s): Leeming JA, Button and Fagan JJ

Background

The applicant pleaded guilty in the District Court at Campbelltown to two Commonwealth offences of using a carriage service to transmit child abuse material (contrary to s 474.19(1) of the Criminal Code (Cth)) and one State offence of possessing child abuse material (contrary to s 91H(2) of the Crimes Act 1900 (NSW)). The offending involved uploading, sharing, and storing child abuse material across multiple online platforms over a period spanning 2013 to 2015. All pleas were entered at the earliest opportunity, prior to committal.

The District Court sentenced the applicant to a total non-parole period of two years, with subsequent recognizance and parole periods. For the State offence, the sentencing judge applied a 25% discount reflecting the utilitarian value of the early guilty plea. For the Commonwealth offences, however, the judge declined to apply any utilitarian discount, finding the plea did not demonstrate genuine remorse or acceptance of responsibility, and noting the strength of the Crown case.

The applicant sought leave to appeal on the single ground that the sentencing judge erred in her treatment of the guilty pleas to the Commonwealth offences.

  • Whether the sentencing judge erred by failing to discount the Commonwealth sentences for the utilitarian value of the guilty pleas, separate from any finding of remorse or acceptance of responsibility.
  • Whether the legal clarification provided in Xiao v R [2018] NSWCCA 4, decided after the original sentencing, required the sentences to be reconsidered.

Decision

At the time of sentencing in June 2017, sentencing judges in Commonwealth matters had generally understood, based on the High Court's decision in Cameron v The Queen (2002) 209 CLR 339, that a guilty plea could only attract a discount to the extent it reflected remorse, acceptance of responsibility, or willingness to facilitate the course of justice. The utilitarian value of a plea (that is, its practical benefit to the justice system in avoiding a contested trial) was not treated as a standalone mitigating factor in Commonwealth proceedings.

The Court of Criminal Appeal had subsequently clarified, in Xiao v R [2018] NSWCCA 4, that under s 16A of the Crimes Act 1914 (Cth), a sentencing judge is entitled to take the utilitarian value of a guilty plea into account. The Court in the present case accepted that the sentencing judge had, in accordance with the law as it was understood at the time, allowed only a minimal discount of approximately 10% for the Commonwealth pleas, based solely on factors other than utilitarian value.

The Court of Criminal Appeal found that this approach, while not criticised given the state of the law in 2017, meant the applicant was denied a basis of mitigation to which he was entitled in light of Xiao. Applying a 25% discount (consistent with the discount applied to the State offence and appropriate given the early pleas), the Court recalculated the individual sentences: count (1) reduced from 18 months to 15 months, and count (2) reduced from 27 months to approximately 23 months. The Court noted the overall non-parole period did not reduce proportionately, because the State sentence was unchanged and the aggregate must still reflect adequate punishment for the totality of the offending.

Orders Made

  • Leave to appeal against sentence granted.
  • Original sentences quashed.
  • Count (1): 1 year and 3 months imprisonment, commencing 17 January 2017 and expiring 16 April 2018.
  • Count (2): 1 year and 11 months imprisonment, commencing 17 June 2017 and expiring 16 May 2019.
  • Pursuant to ss 19AC and 20(1)(b) of the Crimes Act 1914 (Cth), the applicant to be released on recognizance on 16 November 2018 for 6 months, subject to conditions including good behaviour, supervision by Community Corrections, compliance with directions regarding mobile phone access, and participation in treatment programs as directed.
  • Count (3): non-parole period of 1 year commencing 17 November 2017 and expiring 16 November 2018, with a balance of term of 6 months expiring 16 May 2019.
  • Overall non-parole period: 1 year and 10 months, followed by concurrent 6-month recognizance (Commonwealth) and 6-month parole (State) periods.

Key Takeaways

  • Following Xiao v R [2018] NSWCCA 4, the utilitarian value of a guilty plea is a legitimate mitigating factor when sentencing for Commonwealth offences under s 16A of the Crimes Act 1914 (Cth), independent of any finding of remorse or acceptance of responsibility.
  • A sentencing judge who declines to find genuine remorse is not thereby precluded from discounting a Commonwealth sentence for the practical benefit the plea provides to the justice system.
  • No criticism attached to the original sentencing judge, who had applied the law as it was commonly understood before Xiao clarified the position.
  • Where an early guilty plea is entered and a 25% discount is applied to the State offence, consistency with principle supports applying the same rate to comparable Commonwealth offences in the same proceeding.
  • Reducing individual sentences within a cumulative structure does not necessarily produce a mathematically proportionate reduction in the overall non-parole period, which must independently reflect the totality of the offending.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 474.19(1)
- Crimes Act 1900 (NSW) s 91H(2)
- Crimes Act 1914 (Cth) ss 16A, 19AC, 20(1)(b)

Cases
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Xiao v R [2018] NSWCCA 4
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Tyler v The Queen [2007] NSWCCA 247
- R v Place (2002) 81 SASR 395; [2002] SASC 101