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Court of Criminal Appeal 30 June 2023

Borri v R

[2023] NSWCCA 166

Sexual offences
CRIME SENTENCE APPEAL AGAINST SENTENCE STATUTORY SENTENCING DISCOUNT WHETHER APPLIED TO INDICATIVE SENTENCES UNUSUAL COURSE

Citation: Borri v R [2023] NSWCCA 166
Court: Court of Criminal Appeal
Date: 30 June 2023
Judge(s): Simpson AJA, Button J, Hamill J (Hamill J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to 26 sexual offences against four children, each of whom was a family member or the child of a partner. He was committed for sentence and in February 2021 the District Court imposed an aggregate term of 16 years imprisonment with a non-parole period of 12 years. Because the guilty pleas were entered in the Local Court, the applicant was entitled to a 25% statutory sentencing discount under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sentencing judgment, as delivered, contained no reference to whether that discount had been applied to the indicative sentence for any offence. Twenty-one months after sentencing, and 27 days after a notice of appeal was filed, the judgment on NSW Caselaw was amended to annex a JusticeLink printout and include a hyperlink. That printout recorded, 676 times across the 26 offences, that a "sentence discount of 25.0% is included." Affidavit evidence on the appeal revealed that the sentencing judge's associate had advised that the judge, having listened to the audio recording, acknowledged he made no verbal reference to the discount in his judgment, though he said he had intended to and had in fact factored it in.

The applicant applied (out of time) for leave to appeal on three grounds: that the sentencing judge failed to take the guilty plea into account, that the judge did not comply with the statutory obligation under s 25F(7) of the Sentencing Procedure Act to explain how the discount was applied, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge's failure to reference the guilty plea discount in the delivered judgment constituted legal error.
  • Whether the judge had complied with s 25F(7) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires a sentencing judge to explain how a discount was applied, or why it was not applied.
  • What weight, if any, the appellate court should give to a post-appeal amendment to the published judgment, including an annexed JusticeLink record.
  • Whether the aggregate sentence was manifestly excessive (rendered unnecessary by the finding of error on the first two grounds).

Decision

The Court of Criminal Appeal upheld grounds 1 and 1A, granted leave to appeal, and proceeded to resentence the applicant. Hamill J, with whom Simpson AJA and Button J agreed, found that the sentencing judgment as delivered contained no statement that the discount had been applied, and that the arithmetic for 15 of the 26 indicative sentences raised further doubt that the entitlement had been honoured. Merely noting that a plea of guilty had been entered did not satisfy the obligation to articulate and explain the discount.

On the amendment to the judgment, the Court adopted what Hamill J described as an unusual course: it ignored the amendment entirely. The timing of the amendment was found to be problematic, having been made 21 months after sentence and only after an appeal ground raised the very issue the amendment purported to address. The Court also could not be confident of the reliability of the JusticeLink record. In circumstances of significant doubt, the Court applied the established principle that it will intervene and exercise the sentencing discretion afresh.

The Court then resentenced the applicant. Applying the 25% discount and taking into account the full range of relevant sentencing considerations, including the gravity of the offending, the four victims, the duration of the conduct, and the applicant's personal circumstances, the Court imposed a reduced aggregate sentence of 14 years with a non-parole period of 10 years. A finding of special circumstances was made under s 44(2) of the Sentencing Procedure Act, resulting in a modest six-month adjustment to the non-parole period, reflecting the applicant's age, the conditions of his incarceration, and his need for supervision upon release.

Ground 2, manifest excess, was not addressed because the finding of specific legal error on grounds 1 and 1A required the Court to exercise the sentencing discretion afresh in any event.

Orders Made

  • Time extended in which to lodge the notice of intention to appeal.
  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Aggregate sentence imposed in the District Court on 5 February 2021 quashed.
  • In lieu, aggregate sentence of 14 years imposed, commencing 26 June 2019 and expiring 25 June 2033, with a non-parole period of 10 years commencing 26 June 2019 and expiring 25 June 2029.
  • The applicant will be eligible for release to parole at the expiration of the non-parole period.
  • The applicant advised of the existence and application of the Crimes (High Risk Offenders Act) 2006 (NSW), with legal representatives directed to advise him of its implications.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing judges are required to articulate and explain the discount applied for a guilty plea; a bare acknowledgment that the offender pleaded guilty does not satisfy that obligation.
  • Where there is genuine uncertainty on appeal about whether a statutory sentencing discount was applied, the Court of Criminal Appeal will generally intervene and exercise the sentencing discretion afresh, rather than proceed on the assumption that the discount was given.
  • A post-judgment amendment to a published decision, made long after sentence and shortly after an appeal ground targeting the very same issue was filed, will be treated with significant caution; in this case the Court declined to give the amendment any weight.
  • The reliability of a JusticeLink record annexed to a judgment by amendment cannot be assumed, particularly where the circumstances of the amendment are procedurally irregular.
  • Arithmetic inconsistencies across indicative sentences can, in themselves, contribute to appellate doubt about whether a statutory discount was properly applied.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 25D, 25F, 25F(7), 25F(8), 44(2A), 53A
- Crimes Act 1900 (NSW), ss 61M, 61N, 61O, 66C
- Crimes (High Risk Offenders Act) 2006 (NSW), s 25C
- District Court Rules 1973, Pt 53 r 12

Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Zhang v R [2018] NSWCCA 82 (applied)
- Lee, Matthew v R [2016] NSWCCA 146 (applied)
- Woodward v R [2014] NSWCCA 205 (considered)
- Wei v R [2015] NSWCCA 66 (considered)
- Edwards v R [2017] NSWCCA 160 (considered)
- Cullen v R [2014] NSWCCA 162 (distinguished)
- Tran v R [2020] NSWCCA 39 (distinguished)
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125