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Court of Criminal Appeal 1 July 2004

Regina v Thomas Taig Lynn [2004] NSWCCA 222 revised - 28

[2004] NSWCCA 222

Sexual offences
CRIMINAL LAW SENTENCING LATE PLEAS OF GUILTY DISCOUNT FOR UTILITARIAN VALUE NEED FOR TRANSPARENCY ADDITIONAL MATTERS ON FORM 1.

Citation: Regina v Thomas Taig Lynn [2004] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 1 July 2004
Judge(s): Dunford J, Studdert J, Howie J

Background

The applicant pleaded guilty on the second morning of his District Court trial to three counts of indecent assault on a person under 16 years of age and under his authority, contrary to s 61E(1A) of the Crimes Act 1900 (since repealed), which carried a maximum penalty of six years imprisonment. He had originally faced eight counts and pleaded not guilty, with the remaining five counts placed on a Form 1 to be taken into account on the third count. The offences involved repeated sexual conduct against a nine-year-old child over a period of approximately three years, while the applicant lived as the de facto partner of the child's mother.

The sentencing judge in the District Court imposed concurrent fixed terms of two years on counts 1 and 2, and a wholly cumulative sentence of four years with a non-parole period of two years on count 3 (incorporating the Form 1 matters). The overall result was six years imprisonment with a non-parole period of four years. The applicant sought leave to appeal on the grounds that the overall sentence was excessive and that the structure of count 3 as wholly cumulative was erroneous.

  • Whether the overall sentence of six years was manifestly excessive in the circumstances, including the late pleas of guilty and the applicant's personal circumstances
  • Whether the sentencing judge erred in structuring the sentence on count 3 as wholly cumulative on counts 1 and 2
  • Whether the sentencing judge properly applied and transparently quantified the discount for the utilitarian value of the late guilty pleas
  • Whether the treatment of the Form 1 offences adequately reflected the totality of the applicant's criminality

Decision

The Court of Criminal Appeal accepted that making counts 1 and 2 concurrent was appropriate, given they occurred within days of each other and were essentially similar. Count 3, however, was a discrete, later offence, and the Form 1 matters spanned nearly three years. Some degree of cumulation was therefore warranted to reflect the totality of the applicant's criminality.

The Court identified a significant error in the sentencing below: despite the judge acknowledging the late pleas and indicating a discount of 10 to 15 percent, the sentences imposed on counts 1, 2, and 3 did not appear to reflect any actual reduction. The requirement that a discount for the utilitarian value of a guilty plea be expressly applied and visible in the sentencing arithmetic was not satisfied. The Court treated the sentences actually imposed as the notional starting point and applied a 10 percent discount from there.

Applying that discount, the Court confirmed the two-year sentences on counts 1 and 2 but reduced the sentence on count 3 (with Form 1 matters) from four years to three years and five months. The non-parole period for count 3 was reduced proportionally to 19 months, maintaining the ratio indicated by the sentencing judge's finding of special circumstances. The finding of special circumstances was not disturbed.

Orders Made

  • Leave to appeal granted
  • Appeal on counts 1 and 2 dismissed; those sentences confirmed
  • Appeal on count 3 allowed; sentence of four years quashed
  • In lieu, the applicant sentenced to imprisonment for three years and five months, commencing 19 December 2004 and expiring 18 May 2008, with a non-parole period of 19 months expiring 18 July 2006 (earliest parole eligibility date: 18 July 2006)

Key Takeaways

  • A sentencing court that acknowledges a discount for the utilitarian value of a guilty plea must ensure that discount is transparently and actually reflected in the sentence imposed, not merely stated as a range without application.
  • Where a judge nominates a discount of 10 to 15 percent but the final sentences appear equivalent to what would have been imposed without any reduction, the Court of Criminal Appeal will treat those sentences as the notional starting point and apply the discount itself.
  • Concurrent sentences for multiple offences of the same type are appropriate where the conduct occurred within a short time and in essentially identical circumstances; later, discrete offences warrant some degree of cumulation to reflect separate criminality.
  • Under s 33 of the Crimes (Sentencing Procedure) Act 1999, taking additional matters into account on a Form 1 must produce a sentence longer than would have been imposed for the primary offence alone, and the increase must meaningfully reflect the seriousness of those additional offences rather than being only marginal.
  • Totality remains a governing principle when structuring cumulative sentences: the overall sentence must reflect the full criminality involved without becoming disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 61E(1A) (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 33

Cases:
- Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 147
- R v Barton [2001] NSWCCA 66, 121 A Crim R 185
- R v Mako [2004] NSWCCA 90
- R v Perese [2001] NSWCCA 475, 126 A Crim R 508
- R v Thomson [2000] NSWCCA 309, 49 NSWLR 383