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Court of Criminal Appeal 14 September 2022

Gurin v R

[2022] NSWCCA 193

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE ATTENDANCE OF THE OFFENDER APPEAL DISMISSED

Citation: Gurin v R [2022] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 14 September 2022
Judge(s): Beech-Jones CJ at CL; Adamson J; Campbell J (Campbell J delivering the leading judgment, with the other judges agreeing)

Background

The applicant pleaded guilty in the District Court to two counts of robbery in company arising from incidents in Surry Hills and Redfern in November 2018. He had originally entered pleas of not guilty and had a trial date fixed, but that date was vacated in March 2020 due to COVID-19 restrictions on jury trials. A new trial date was set for October 2020.

Following arraignment before King DCJ on 8 October 2020, the applicant again entered not guilty pleas and a voir dire (a preliminary hearing on a legal question, held before the jury is empanelled) commenced. On 12 October 2020, the applicant failed to appear, breaching his bail undertaking. The trial was aborted before any jury was empanelled, and the applicant remained at large until re-arrested in July 2021.

On 27 August 2021, the applicant was brought before the District Court and pleaded guilty. O'Brien DCJ sentenced him to an aggregate term of 5 years and 6 months imprisonment, applying a 5% guilty plea discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant argued on appeal that he was entitled to the higher 10% discount available under s 25D(2)(b)(i).

  • Whether the aborted trial before King DCJ constituted a "vacated" first day of trial within the meaning of s 25C(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), so as to entitle the applicant to a fresh opportunity to obtain the 10% guilty plea discount under s 25D(2)(b)(i).
  • Whether the sentencing judge erred in applying only a 5% discount rather than 10% for the utilitarian value of the guilty plea.

Decision

The Court granted leave to appeal but dismissed the appeal, upholding the sentencing judge's interpretation of the relevant provisions.

Under Part 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the available discount for a guilty plea diminishes the later it is entered. A 25% discount applies for early pleas; 10% applies where a plea is entered at least 14 days before the first day fixed for trial or within 14 days of a vacated first day; and 5% applies where the plea is entered after the trial has commenced or within the 14-day window before trial but after a trial date has not been vacated. The key question was the meaning of "vacated" in s 25C(1).

Campbell J held that "vacated" in this context means adjourned before the commencement of the trial. A trial that is aborted after it has commenced, because an offender has absconded, is not a "vacated" trial for the purposes of s 25C(1). By the time the applicant absconded, the trial before King DCJ had already commenced: the indictment had been presented, the applicant had been arraigned and entered not guilty pleas, and a voir dire was underway. The abandonment of that trial due to the applicant's non-attendance did not reset the clock under s 25D(2)(b)(i).

Campbell J further noted that construing the aborting of the trial as a "vacation" would produce an unreasonable and arguably absurd result, given that the applicant's own conduct caused the trial to be abandoned, required his co-accused to be tried separately, and necessitated law enforcement resources to secure his re-arrest. Adamson J agreed that this construction was consistent with the express words of ss 25C and 25D and promoted the evident statutory purpose of those provisions.

Orders Made

  • Leave to appeal from sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The word "vacated" in s 25C(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) means adjourned before the commencement of a trial, and does not extend to circumstances where a trial is aborted after it has commenced because the offender absconded.
  • A trial commences, for the purposes of these provisions, once an indictment has been presented, the offender has been arraigned, and pre-trial legal proceedings such as a voir dire are underway, even before a jury is empanelled.
  • Under the statutory scheme, each time a first day fixed for trial is genuinely vacated (adjourned before commencement), the 14-day window in s 25D(2)(b)(i) resets, giving the offender a renewed opportunity to attract the 10% discount by pleading guilty within that window. That reset does not occur where the trial's abandonment is caused by the offender's own non-appearance.
  • Construing the aborted trial as a "vacated" date would yield an unreasonable statutory outcome, rewarding an offender who absconded with the same sentencing benefit available to those who entered timely pleas, an outcome the Court found inconsistent with the legislative purpose.
  • In dismissing the appeal, the Court confirmed that the 5% discount under s 25D(2)(c) was the appropriate reduction in these circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 45, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A, 25C, 25D
- Criminal Procedure Act 1986 (NSW), ss 59, 130
- Interpretation Act 1987 (NSW), ss 33, 34

Cases
- Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323
- GS v The Queen [2022] NSWCCA 65
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Stephens v R [2022] HCA 31