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Court of Criminal Appeal 28 March 2018

Gordon v R

[2018] NSWCCA 54

Assault & violenceDomestic & family violencePublic order & justice offences
SENTENCING MITIGATING FACTORS PLEA OF GUILTY WHERE PLEA IS ENTERED APPEAL AGAINST SENTENCE SENTENCE CONTRARY TO LAW

Citation: Gordon v R [2018] NSWCCA 54
Court: Court of Criminal Appeal, NSW
Date: 28 March 2018
Judges: Simpson JA; R A Hulme J; Hidden AJ

Background

The appellant pleaded guilty in the District Court to two principal offences: reckless wounding (committed in October 2014, when he struck a domestic partner with a golf club causing serious injury) and doing an act with intent to pervert the course of justice (committed between August 2015, when he repeatedly telephoned the complainant from custody and encouraged her to drop the charges). Four further offences were placed on Forms 1 to be taken into account in sentencing, including assault occasioning actual bodily harm and unlawful detention.

The sentencing judge imposed an aggregate sentence of 4 years and 11 months with a non-parole period of 3 years and 7 months. In setting the indicative sentences, she allowed a discount of 10 per cent for both pleas, characterising them both as "late."

The appellant challenged the manner in which the sentencing judge applied the guilty plea discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), raising three discrete points about how the discount had been calculated.

  • Whether the fact that the complainant had been required to give evidence at committal proceedings was relevant to quantifying the guilty plea discount for utilitarian value.
  • Whether the sentencing judge was required to assess the plea discount for each offence individually rather than applying a single discount to both.
  • Whether, because each plea had been entered in the Local Court, each warranted a discount in the range of 25 per cent.
  • Whether the timing of an offender's plea of guilty to Form 1 offences affects the discount applied to the principal offence.

Decision

The Court of Criminal Appeal allowed the appeal by majority, finding that the sentencing judge erred in her approach to the guilty plea discounts. The majority (R A Hulme J and Hidden AJ) held that the judge failed to discriminate between the different procedural histories of the two charges. Describing both pleas as "late" was an incorrect characterisation: a plea entered on or near a trial date in a higher court might properly be described that way, but that was not what had occurred in either case here.

On the utilitarian value of a guilty plea, the Court confirmed that the discount is confined to the utilitarian benefit of the plea to the criminal justice system, and does not include other considerations such as sparing a witness from giving evidence. Those other factors remain relevant under general sentencing principles but are excluded from the plea discount calculation.

On the question of Form 1 offences, the majority held that there is no statutory or common law requirement to take into account that an offender pleaded guilty to, or acknowledged guilt of, an offence that is being taken into account under Part 3 Division 3 of the Sentencing Procedure Act rather than being sentenced for separately. Applying a plea discount to Form 1 offences would give rise to a range of practical problems. Accordingly, the plea discount applies only to the principal offences for which sentence is actually being imposed.

Simpson JA dissented on the resentencing. Her Honour considered that there is no automatic entitlement to a 25 per cent reduction for an early plea, and that ignoring the history of the Form 1 offences would produce an artificial and unrealistic sentencing outcome. Section 22(1)(c) of the Sentencing Procedure Act specifically requires the court to take into account the circumstances in which the intention to plead guilty was indicated.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 13 December 2016 quashed.
  • In lieu, the offender sentenced to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 9 months, dating from 18 June 2015, with the non-parole period expiring on 17 March 2018.

Key Takeaways

  • The quantification of a guilty plea discount under s 22 of the Sentencing Procedure Act is limited to the utilitarian value of the plea. Other considerations, such as sparing a witness from giving evidence, are not incorporated into the discount calculation but may be relevant under general sentencing principles.
  • A sentencing court imposing an aggregate sentence under s 53A must apply the plea discount to each indicative sentence individually before arriving at the final aggregate, not apply a single undifferentiated discount across all charges.
  • Under Part 3 Division 3 of the Sentencing Procedure Act, the majority of the Court of Criminal Appeal confirmed there is no requirement to apply any discount to the principal sentence on account of an offender's plea of guilty to, or acknowledgement of guilt in relation to, Form 1 offences.
  • Where pleas are entered at different procedural stages, the sentencing court is required to assess each plea's discount separately and accurately characterise the timing of each. Applying the same descriptor and discount to pleas with materially different histories constitutes error.
  • Simpson JA's dissent emphasises that s 22(1)(c) requires consideration of the circumstances in which an intention to plead guilty was indicated, and that no automatic entitlement to a 25 per cent discount arises from an early plea.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 33, 44, 47, 53A, Pt 3 Div 3, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 35(4), 59(1), 86(1), 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Criminal Appeal Act 1912 (NSW), ss 6, 166
- Criminal Procedure Act 1986 (NSW), ss 91, 93, 166, 167

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102
- R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398
- R v Cahill [2015] NSWCCA 53
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115