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Court of Criminal Appeal 12 May 2021

Richey v R

[2021] NSWCCA 93

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: Richey v R [2021] NSWCCA 93
Court: Court of Criminal Appeal, New South Wales
Date: 12 May 2021
Judge(s): Harrison J; R A Hulme J; Ierace J (principal judgment)

Background

The appellant was tried before a jury in the District Court on eight counts involving the same female victim, arising from two separate incidents in September 2017. The counts included sexual assaults, kidnappings, and one count of assault occasioning actual bodily harm (AOABH). The jury acquitted him of all counts except the AOABH count, and he was sentenced to imprisonment of 2 years 4 months with a non-parole period of 1 year 9 months.

The AOABH offence related to an incident on 28 September 2017, during which the appellant punched, kicked, and dragged the victim through his residence. Medical examination the following morning revealed three fractured ribs and extensive bruising. The sentencing judge found the appellant to be a powerfully built man who had callously given the victim a thrashing against which she was helpless to defend herself.

Crucially, the AOABH charge had been laid before 30 April 2018, the commencement date of the "early appropriate guilty plea" (EAGP) scheme. Before trial, the appellant had offered to plead guilty to AOABH on two conditions: that a particular factual basis be accepted, and that all other charges be withdrawn. The prosecution did not accept that offer. At the sentence hearing, the sentencing judge declined to apply any sentencing discount. The appellant challenged that refusal on appeal.

  • Whether the EAGP scheme, contained in Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), applied to a charge laid before its commencement date of 30 April 2018.
  • If the EAGP scheme did not apply, whether common law principles entitling an offender to a sentencing discount for an unaccepted guilty plea offer nonetheless warranted a discount in this case.
  • Whether the sentencing judge erred in withholding a sentencing discount.

Decision

The Court held that the EAGP scheme does not apply to charges laid before its commencement on 30 April 2018. The former sentencing provisions, including the common law principles governing sentencing discounts, continue to govern such charges. Both parties ultimately accepted this to be the correct position.

Under common law principles, a discount may be available where an accused offers a plea of guilty that is rejected by the prosecution but is consistent with the eventual verdict, even where there is no utilitarian value in the plea. However, those principles are discretionary. Hulme J observed that the appellant's offer rested on a factual construct that the sentencing judge roundly rejected: rather than accepting a version in which the injuries arose from an early-morning struggle when the appellant wanted the victim to leave, the judge found the appellant had callously beaten her during the night.

Ierace J further noted that even if the EAGP scheme were construed to apply, s 25F(4) of the Crimes (Sentencing Procedure) Act expressly permits a court to reduce or entirely withhold a sentencing discount where a factual dispute is not resolved in the offender's favour and the utilitarian value of the plea is thereby eroded. Given that the sentencing judge's findings entirely eliminated both the subjective and utilitarian considerations supporting a discount, the refusal to apply any discount was squarely within the sentencing judge's discretion.

All three judges agreed that the ground of appeal failed. Hulme J also noted the broader principle that an unusual procedural circumstance, namely a charge straddling the commencement date of a new scheme, should not produce a more favourable outcome than would have arisen under either the old law or the new.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The EAGP scheme in Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to charges laid before its commencement date of 30 April 2018; pre-commencement charges remain governed by the former provisions, including common law sentencing discount principles.
  • Under common law principles, an unaccepted guilty plea offer that is consistent with the jury verdict may ground a sentencing discount even without utilitarian value, but that discount remains discretionary and may be withheld.
  • Where the factual basis underpinning a plea offer is rejected at sentencing, the sentencing court retains a broad discretion to withhold any discount, whether applying common law principles or s 25F(4) of the Crimes (Sentencing Procedure) Act.
  • A conditional plea offer, one requiring both acceptance of a particular factual basis and the withdrawal of other charges, will be assessed against those preconditions when a court considers whether any discount is warranted.
  • The Court of Criminal Appeal confirmed that an unusual procedural circumstance, such as one charge predating the EAGP scheme while related charges do not, should not produce a result more favourable than would have obtained under either legal regime applied consistently.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 86, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25E, 25F, Pt 3 Div 1A
- Criminal Procedure Act 1986 (NSW), ss 55, 70, 75, 166, 168, Sch 2, cll 88, 89
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Merrick v R [2017] NSWCCA 264
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102