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Court of Criminal Appeal 30 August 2023

Woodland v R

[2023] NSWCCA 216

DrugsTheft & propertyTraffic & driving
CRIME APPEALS APPEAL ALLOWED APPELLANT RESENTENCED

Citation: Woodland v R [2023] NSWCCA 216
Court: Court of Criminal Appeal
Date: 30 August 2023
Judges: Beech-Jones CJ at CL; Dhanji J; Chen J

Background

The appellant pleaded guilty in the Local Court to three offences: deemed larceny of a motor vehicle (commonly charged as "take and drive conveyance without consent"), and two counts of driving while disqualified (second or subsequent offence). She was referred to and accepted into the Drug Court program, which required the imposition of an initial aggregate sentence of 1 year and 9 months imprisonment. That sentence was suspended to allow her to participate in the program.

The appellant's participation in the Drug Court program was terminated due to repeated non-compliance. The matter returned to the Drug Court for a final sentence, where Judge Guy confirmed the initial aggregate term and set a non-parole period of 12 months, with the sentence backdated to 11 December 2022 to account for pre-sentence custody and time spent in custody as program sanctions.

The appellant appealed to the Court of Criminal Appeal on three grounds: that her early guilty pleas were not properly accounted for; that an irrelevant consideration was taken into account when assessing the objective seriousness of the deemed larceny offence; and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge failed to take the appellant's early guilty pleas into account, or failed to explain in the sentencing remarks how those pleas were reflected in the sentence.
  • Whether the sentencing judge took into account an irrelevant consideration, specifically a finding that the vehicle had not been recovered, when assessing the objective seriousness of the deemed larceny offence.
  • Whether the aggregate sentence of 1 year and 9 months imprisonment was manifestly excessive.
  • What approach applies to the admission of further evidence on resentence in an appeal under s 5AA of the Criminal Appeal Act 1912 (NSW).

Decision

Ground 1: Guilty plea discount

The majority (Dhanji J and Chen J) upheld this ground. The applicable test, drawn from Lee, Matthew v R, is whether the Court is "affirmatively satisfied" that the plea was taken into account and an appropriate discount allowed. In the absence of any reference in the sentencing remarks to the fact of the plea, its timing, or its significance, the majority held that the possibility could not be excluded that the plea was not properly taken into account. The majority also confirmed that subjective assessments about the sentencing judge's level of experience are irrelevant to answering that question.

Beech-Jones CJ at CL dissented on this ground. His Honour reasoned that, because entry into the Drug Court program requires a guilty plea, and given the indicative sentences that had been proposed, it was a common assumption of the entire sentencing proceedings that the appellant was already receiving a 25% discount for her pleas.

Ground 2: Irrelevant consideration

All three judges agreed that error was established on this ground. The sentencing judge had sentenced the appellant on the basis that the vehicle had not been recovered. However, her Honour had earlier accepted that there was no evidence as to whether the vehicle had been recovered or not. Treating an unproven factual matter adversely to the appellant in this way was an error.

Ground 3 and resentencing

Because error was established on grounds 1 and 2, the Court did not need to consider whether the sentence was manifestly excessive. On resentence, Dhanji J (with Chen J agreeing) applied a 25% guilty plea discount and imposed a reduced aggregate sentence of 14 months imprisonment with a non-parole period of 9 months, backdated to the same commencement date of 11 December 2022. Beech-Jones CJ at CL agreed with the orders proposed, without determining the question of whether further evidence could be admitted on such an appeal.

Orders Made

  • Appeal allowed.
  • The sentence imposed in the Drug Court on 5 May 2023 is quashed.
  • The appellant is sentenced to a term of imprisonment of 14 months with a non-parole period of 9 months, commencing 11 December 2022. The non-parole period expires 10 September 2023 and the total term expires 10 February 2024.

Key Takeaways

  • The test for whether a guilty plea was properly accounted for in sentencing is whether the appellate court is "affirmatively satisfied" the plea was taken into account and an appropriate discount allowed. The absence of any reference to the plea, its timing, or its significance in the sentencing remarks may be sufficient to prevent that satisfaction.
  • Subjective assessments of a sentencing judge's experience are irrelevant when applying the affirmative satisfaction test from Lee, Matthew v R.
  • Where a sentencing judge treats a factual matter adversely to an offender, but had earlier accepted there was no evidence to support that factual finding, error is established. Unproven facts cannot be used to increase objective seriousness.
  • In Drug Court appeals, the majority held that the power to admit further evidence on resentence under s 5AA of the Criminal Appeal Act 1912 should operate similarly to appeals under s 5(1) of that Act. Beech-Jones CJ at CL left this question open.
  • A plea of guilty being a formal condition of entry into the Drug Court program does not, in the majority's view, substitute for express acknowledgment of the plea and its discount in sentencing remarks.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5AA, 5AF(3)(b)
- Drug Court Act 1998 (NSW), ss 5(1)(c), 6, 7A, 12
- Crimes Act 1900 (NSW), ss 154A, 154F
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Lee, Matthew v R [2016] NSWCCA 146
- Borri v R [2023] NSWCCA 166
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37