AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 25 October 2022

Green v R

[2022] NSWCCA 230

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCING APPLICANT NOT REPRESENTED AT PRE TRIAL CALL OVER WHETHER PROCEEDINGS MISCARRIED

Citation: Green v R [2022] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 25 October 2022
Judges: Macfarlan JA; Harrison J; Hamill J (reasons)

Background

The applicant pleaded guilty in the District Court to detaining a person with intent to obtain financial advantage and causing actual bodily harm during the detention, an offence under s 86(3) of the Crimes Act 1900 (NSW). The offence involved the applicant and co-offenders detaining and assaulting a victim over money and a suspected theft, with the victim suffering a significant facial laceration requiring suturing and enduring prolonged humiliation. The District Court sentenced the applicant to imprisonment for 6 years and 7 months with a non-parole period of 3 years and 4 months.

The applicant sought leave to appeal on a single ground: that the sentencing proceedings miscarried because his lawyers failed to act on his instructions to enter a guilty plea in a timely manner. The practical consequence was that the court was notified of the plea one day after the 14-day cut-off that would have attracted a 10% statutory discount under the early appropriate guilty plea (EAGP) scheme. The applicant received only a 5% discount instead.

The applicant gave instructions to plead guilty approximately one and a half months before the trial date. He was unrepresented at a pre-trial call-over at which the plea would otherwise have been communicated to the court. No satisfactory explanation emerged for the failure to notify the court in time.

  • Whether the sentencing proceedings miscarried due to the failure of the applicant's lawyers to communicate his guilty plea instructions to the court within the statutory timeframe.
  • Whether the prescriptive structure of the EAGP discount provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW) permitted the Court of Criminal Appeal to correct any miscarriage by simply increasing the discount from 5% to 10%.
  • Whether, if a full resentencing was required, a lesser sentence was warranted having regard to the circumstances of the miscarriage and evidence tendered on appeal.

Decision

On miscarriage of justice: The Court held unanimously that the sentencing proceedings had miscarried. The key question was not whether the lawyers were negligent or incompetent, but whether the events produced a miscarriage of justice. The applicant had provided instructions to plead guilty well before the cut-off, those instructions had been communicated to the prosecutor, but no arrangements were made to notify the court. The applicant's absence from a pre-trial call-over, at which the plea would likely have been entered, was central to the finding. Hamill J characterised the situation as the applicant's case falling "between the cracks," constituting a material irregularity in the proceedings.

On whether the discount could simply be increased: The Court rejected an argument that it could apply a 10% discount on appeal. Under the EAGP scheme in Division 1A of the Crimes (Sentencing Procedure) Act 1999, the 10% discount under s 25C(2) is available only once a plea is formally entered, or a formal notice provided, at least 14 days before the trial date. Because neither condition was met either at first instance or on appeal, the applicant remained entitled only to the 5% discount under s 25D(2)(c). The prescriptive statutory scheme left no room for judicial discretion to adjust the discount level, and this distinguished the case from situations involving a simple mathematical or administrative correction.

On resentencing: The Court held that a full resentencing was required rather than a minor adjustment to the existing sentence. The sentencing judge may have approached relevant considerations differently had he been aware of the applicant's earlier instructions to plead guilty, a factor bearing on the applicant's remorse and the utilitarian value of the plea. The Court also placed significant weight on evidence of the applicant's rehabilitation and the particularly onerous conditions of his custody, tendered "on the usual basis" pursuant to Betts v The Queen (2016) 258 CLR 420. Taking all these matters into account, the Court resentenced the applicant to 5 years and 8 months imprisonment with a non-parole period of 3 years.

Orders Made

  • Leave to appeal against the sentence granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 25 May 2021 quashed.
  • Applicant resentenced to a non-parole period of 3 years commencing 25 April 2020 and expiring 24 April 2023, with a balance of term of 2 years and 8 months expiring 24 December 2025.
  • The applicant first becomes eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • A miscarriage of justice in sentencing proceedings can arise from a lawyer's failure to communicate a client's instructions to plead guilty to the court in time, even without a formal finding of negligence or incompetence.
  • Under the EAGP scheme in the Crimes (Sentencing Procedure) Act 1999, the 10% discount under s 25C(2) is available only when a plea is entered or formal notice given at least 14 days before the trial date. The scheme is prescriptive and removes judicial discretion to award a higher discount where that threshold is not formally met, even on appeal.
  • In dismissing the Crown's argument that no remedy was available, the Court found that the correct response to the miscarriage was a full resentencing rather than a formulaic adjustment to the existing sentence.
  • Evidence of an offender's progress in custody and the conditions of incarceration, tendered "on the usual basis" following Betts v The Queen, can carry significant weight in a resentencing exercise on appeal.
  • The circumstances in which a guilty plea was delayed, including whether the delay reflected the offender's own conduct or a procedural failure, may be a relevant consideration in assessing remorse and the purposes served by the plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25, 25C, 25D, 25E, 25F, 44, Division 1A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- AK v R [2022] NSWCCA 175
- Black v R [2022] NSWCCA 17
- Christian v R [2021] NSWCCA 300
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Green [2021] NSWDC 362