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Court of Criminal Appeal 5 June 2002

REGINA v DILLON [2002] NSWCCA 221 revised - 1

[2002] NSWCCA 221

Assault & violenceTheft & property
SENTENCE APPEAL ROBBERY IN COMPANY PLEA OF GUILTY APPROPRIATE DISCOUNT REQUIREMENT TO QUALIFY SENTENCE REQUIREMENT TO SPECIFY

Citation: REGINA v DILLON [2002] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 5 June 2002
Judge(s): Adams J; Carruthers AJ

Background

The applicant, a young man aged eighteen and a half at the time of the offence, participated with two juvenile co-offenders in a street robbery in Parramatta on 2 June 2000. The victims were physically restrained, threatened with implicit violence, and one was taken to an ATM and forced to withdraw cash. The applicant had known in advance that some violence would be used, though he had not instigated the offence.

The applicant pleaded guilty at the earliest possible opportunity, including at the committal proceedings, and made a full and frank confession to police. He had completed his Higher School Certificate, maintained stable employment, and expressed genuine remorse. The District Court sentenced him to three and a half years imprisonment with a non-parole period of fifteen months.

On appeal, the applicant argued the sentencing judge had erred in several respects. The Court of Criminal Appeal found it necessary to address only one: the failure to properly apply the principles from Thomson and Houlton regarding the utilitarian value of an early guilty plea.

  • Whether the sentencing judge properly applied the principles in Thomson and Houlton (2000) 49 NSWLR 383 when crediting the applicant's early guilty plea
  • Whether the sentencing judge was required to specify the extent of the discount granted for the guilty plea
  • What the appropriate sentence was upon re-sentencing, having regard to both the objective seriousness of the offence and the applicant's subjective circumstances

Decision

The Court of Criminal Appeal found that the sentencing judge had failed to apply Thomson and Houlton when assessing the significance of the early guilty plea. Although the judge acknowledged the plea, he did not identify any utilitarian discount, and the language and outcome of the sentence indicated the principles from that case had been overlooked. This constituted a sentencing error warranting intervention.

Adams J identified two distinct obligations arising from Thomson and Houlton. First, a substantial utilitarian discount must actually be applied where a plea is entered at the earliest opportunity. Second, the sentencing judge must expressly state that the plea is being recognised for its utilitarian value and, unless clearly inappropriate, must specify the extent of that discount.

On the facts, the Court considered a discount of approximately twenty-five per cent to be appropriate, with no unusual features justifying departure from that standard. The Court noted that the trauma and inconvenience avoided for the victims by not requiring them to give evidence was itself a material consideration supporting the discount.

The Court accepted that imprisonment remained necessary given the objective seriousness of the offence, even accounting for the applicant's youth and strong prospects for rehabilitation. Progress made during custody, including unsupervised community work and educational participation, was also taken into account on re-sentencing.

Orders Made

  • Leave to appeal granted
  • Sentence imposed in the District Court quashed
  • Substituted sentence of three years imprisonment, commencing 3 August 2001 and expiring 2 August 2004
  • Non-parole period of eleven months, commencing 3 August 2001 and expiring 2 July 2002
  • Applicant directed to be released on expiration of the non-parole period
  • Time for giving notice of appeal extended

Key Takeaways

  • Under the principles in Thomson and Houlton, a sentencing court is required not only to apply a substantial utilitarian discount for an early guilty plea, but also to state expressly that the plea is being recognised on that basis and to specify the quantum of the discount, unless it is clearly inappropriate to do so.
  • A failure to articulate the discount in accordance with Thomson and Houlton constitutes a sentencing error, even where the judge acknowledges the plea in general terms.
  • Where a plea of guilty is entered at the very first opportunity and no unusual features are present, the Court of Criminal Appeal confirmed that a discount of approximately twenty-five per cent will ordinarily be appropriate.
  • Strong subjective considerations, including youth, rehabilitation, employment history, and family support, may moderate the length of a custodial sentence but do not necessarily displace the need for imprisonment where the objective gravity of the offence is significant.
  • The public policy rationale for the Thomson and Houlton requirement was reaffirmed in Sharma [2002] NSWCCA 142, indicating consistent application across the Court of Criminal Appeal at that time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- The Queen v Thomson and Houlton (2000) 49 NSWLR 383
- Sharma [2002] NSWCCA 142