AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 June 2021

Facenfield v R

[2021] NSWCCA 128

DrugsFraud & dishonestyTheft & property

Citation: Facenfield v R [2021] NSWCCA 128
Court: Court of Criminal Appeal, NSW
Date: 23 June 2021
Judge(s): Harrison J, Beech-Jones J, Cavanagh J (all agreeing in reasons delivered by Cavanagh J)

Background

The appellant was sentenced in the Drug Court after pleading guilty to 13 property and drug offences committed between March 2019 and February 2020. The offending included break and enter offences, larceny, possession of prohibited drugs, and a deemed supply charge involving GBL (gamma-butyrolactone). He was admitted into the Drug Court programme, but his participation was terminated in March 2020 after his progress was assessed as unsatisfactory.

Following termination of the programme, the Drug Court imposed a final aggregate sentence of 4 years and 2 months imprisonment with a non-parole period of 2 years and 1 month. One of the 13 offences, a goods in custody charge (Sequence 8), had been given an indicative sentence equal to the maximum of 6 months with no discount applied for the early guilty plea.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge erred in withholding a guilty plea discount for Sequence 8; and second, that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by refusing to apply any discount for the utilitarian value of an early guilty plea on the basis that a guilty plea to Sequence 8 was "inevitable" given the strength of the evidence.
  • Whether the aggregate sentence of 4 years and 2 months was manifestly excessive having regard to the totality of the offending.

Decision

Ground 1: Guilty plea discount

The sentencing judge declined to apply any discount for the early guilty plea on Sequence 8, reasoning that because the appellant had been "caught red-handed," the plea was inevitable and carried no utilitarian value. Cavanagh J found this approach was contrary to established principle. The guideline judgment in R v Thomson and Houlton makes clear that while a "recognition of the inevitable" may qualify the extent of genuine contrition, it does not qualify the utilitarian value of a plea. An error of law was therefore established on Ground 1.

Ground 2: Manifest excess

Having found error on Ground 1, the Court was required to exercise its sentencing discretion afresh. While the error in respect of Sequence 8 would in isolation have reduced that indicative sentence by only approximately 1.5 months, the Court undertook a full resentencing exercise, revising certain indicative sentences (including a reduction in Sequence 11 from 4 months to 1 month) and reconsidering the extent of accumulation required to reflect the totality of the offending. On that basis, the Court concluded the aggregate sentence was excessive and should be reduced.

Resentencing

Cavanagh J reduced the indicative sentence for Sequence 8 to 3.5 months, reflecting a 25 per cent discount for the early plea. After revising several indicative sentences and applying totality principles, the Court imposed a fresh aggregate sentence of 3 years and 9 months with a non-parole period of 23 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence imposed in the District Court quashed.
  • In lieu thereof, an aggregate sentence of 3 years and 9 months imprisonment imposed, commencing 30 July 2019 and expiring 29 April 2023.
  • Non-parole period of 23 months specified, commencing 30 July 2019 and ending 29 June 2021 (earliest eligible release date).

Key Takeaways

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea remains a distinct and mandatory sentencing consideration, separate from questions of genuine contrition. A sentencing court cannot treat an early plea as having no utilitarian value simply because conviction appeared likely or inevitable given the strength of the prosecution evidence.
  • Under the Thomson and Houlton guideline, a "recognition of the inevitable" may reduce credit for contrition but does not eliminate the utilitarian discount owed for a guilty plea.
  • When imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is required to indicate the sentence that would have been imposed for each offence individually, and those indicative sentences must each account for applicable discounts including reductions for guilty pleas under Part 3 of that Act.
  • Established error on even a single indicative sentence within an aggregate sentence is sufficient to enliven the Court of Criminal Appeal's obligation to exercise the sentencing discretion afresh across all offences.
  • Totality principles require an aggregate sentence to reflect the overall criminality of the offending as a whole, not merely the mechanical addition of individual indicative terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111, 112, 113, 117, 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25D, 53A
- Drug Court Act 1998 (NSW), ss 7A, 12
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases
- R v Thomson; R v Houlton (2000) 14 NSWLR 374; [2000] NSWCCA 309
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Newman (a pseudonym) v R [2019] NSWCCA 157
- A v R [2020] NSWCCA 145
- Rizk v R [2020] NSWCCA 291