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20
Court of Criminal Appeal 11 February 2022

Black v R

[2022] NSWCCA 17

Also reported as (2022) 107 NSWLR 225
Public order & justice offences

Citation: Black v R [2022] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 11 February 2022
Judges: Simpson AJA; Ierace J; Dhanji J

Background

The applicant was charged with murder, with manslaughter as an alternative count. Before committal, he offered through a case conference certificate to plead guilty to manslaughter. The prosecutor refused that offer at the time. After the applicant was committed for trial and arraigned in the Supreme Court, the Crown ultimately accepted a guilty plea to manslaughter in full satisfaction of the indictment.

The sentencing judge (Cavanagh J) applied a 10% discount for the guilty plea, treating the matter as falling under s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision applies where an offender committed for trial pleads guilty at the first available opportunity, yielding a 10% reduction.

The applicant contended he was entitled to a 25% discount under s 25E(2) and s 25E(3)(a), because he had made a recorded offer to plead to a different offence before committal, that offer was refused, and he was ultimately found guilty of that offence. The difference in outcome was significant: a 25% discount would reduce the head sentence by approximately 13 months and 2 weeks and bring forward eligibility for parole.

  • Whether s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied where an offer to plead guilty to manslaughter was made before committal but was initially refused by the prosecutor.
  • Whether manslaughter qualified as a "different offence" within the meaning of s 25E(1)(b), given that manslaughter was already listed as an alternative count on the indictment.
  • Which provision governed the applicable discount: s 25D (10%) or s 25E (25%).

Decision

The Court of Criminal Appeal held, unanimously, that s 25E applied and that the applicant was entitled to a 25% discount. Simpson AJA (with whom Ierace J and Dhanji J agreed) concluded that the sentencing judge had erred in treating the matter as governed solely by s 25D.

The central question of statutory construction was whether manslaughter constituted a "different offence" to murder for the purposes of s 25E(1)(b), which requires that the offered offence "was not the offence the subject of the proceedings when the offer was made." The Court accepted that manslaughter, as the alternative lesser charge, met this description. The requirements of s 25E(1) were otherwise satisfied: the offer was recorded in a case conference certificate (a "negotiations document"), it was not accepted by the prosecutor at the time, it was not subsequently withdrawn, and the applicant was ultimately found guilty of that offence.

The Court characterised the error as entirely discrete from the discretionary aspects of sentencing. Because the sentencing judge's assessment of the appropriate base sentence was unchallenged, the error could be corrected by a straightforward mathematical adjustment. The parties had agreed on the recalculated figures, and the Court accepted those calculations.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; the sentence imposed in the Supreme Court quashed.
  • The applicant resentenced to imprisonment comprising a non-parole period of 3 years, 7 months and 10 days commencing 7 July 2018 and expiring 16 February 2022, with a balance of term of 2 years and 5 days expiring 21 February 2024.

Key Takeaways

  • Under s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender who made a recorded offer to plead guilty to a lesser offence before committal, which the prosecutor refused, is entitled to a 25% sentencing discount where the offender is ultimately convicted of that lesser offence.
  • A lesser alternative charge (here, manslaughter offered in response to a murder charge) can qualify as a "different offence" for the purposes of s 25E(1)(b), even where that alternative appears on the same indictment.
  • Division 1A (ss 25A to 25F) of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constitutes a mandatory and exclusive code governing sentencing discounts for the utilitarian value of guilty pleas to indictable offences.
  • Where a sentencing error is entirely discrete from the exercise of sentencing discretion, the Court of Criminal Appeal may correct it by mathematical adjustment without conducting a full resentencing exercise.
  • The timing of the offer, not the timing of the eventual plea, governs the applicable discount rate under s 25E(3): an offer made before committal attracts the maximum 25% reduction.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25A to 25F
- Criminal Procedure Act 1986 (NSW), s 74
- Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Black (No 1) [2021] NSWSC 73
- R v Black (No 2) [2021] NSWSC 77
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v Holmes (No 7) [2021] NSWSC 570
- R v Tailford (No 2) [2021] NSWSC 695
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309