Linggo v R

[2017] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Linggo v R [2017] NSWCCA 67

Hearing dates:

31 March 2017

Date of orders:

31 March 2017

Decision date:

13 April 2017

Before:

Beazley P;
Walton J;
R A Hulme J

Decision:

1   Grant leave to appeal against sentence and allow the appeal;

 

2   Quash the sentences imposed in the District Court on 7 March 2016 and in lieu impose the following:

 

Count 1   Imprisonment for 18 months commencing 30 June 2015 and expiring 29 December 2016;

 

Count 2   Imprisonment for 2 years and 2 months commencing 30 December 2015 and expiring 28 February 2018;

 3   Direct the appellant be released on 3 April 2017 upon giving security without surety in the sum of $1,000 and entering into a recognizance to be of good behaviour for the period 3 April 2017 until 28 February 2018.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge made mathematical error in calculating sentence imposed – applicant convicted of offences contrary to Criminal Code 1995 (Cth), s 400.9(1) and Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – sentencing judge stated that intention was to impose sentence of imprisonment for three years – sentence of three years and three months imposed – whether appeal court should resentence

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred by giving inadequate discount for guilty plea – discount in range of 4 per cent to 10 per cent – matters to be considered when calculating discount pursuant to Crimes Act 1914 (Cth), s 16A(2)(g) – whether discount to be given for utilitarian value of the plea – circumstances in which discount to be given for facilitating the course of justice – timing of the plea – strength of the Crown case – appropriate range for discount

Legislation Cited:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:

C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
DPP (Cth) v Thomas [2016] VSCA 237
Ellis v R [2015] NSWCCA 262
Gow v DPP (Cth) (2015) 298 FLR 397; [2015] NSWCCA 208
Isaac v R [2012] NSWCCA 195
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lee v R [2012] NSWCCA 123
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
Pham v R [2010] NSWCCA 208
R v Baleisuva [2004] NSWCCA 344
R v Harrington (2016) 11 ACTLR 215; [2016] ACTCA 10
R v Saleh [2015] NSWCCA 299
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247

Category:

Principal judgment

Parties:

Leonard Dharmananda Linggo (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Buchen; G Huxley (Applicant)
L K Crowley (Respondent)

  Solicitors:
Murphy’s Lawyers Inc (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2015/192362

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

07 March 2017

Before:

Hanley SC DCJ

File Number(s):

2015/192362

Headnote

[This headnote is not to be read as part of the judgment]

On 30 June 2015, the Australian Federal Police entered a room at the Novotel Sydney Central Hotel and found Mr Leonard Linggo counting a quantity of Australian $50 note bundles using a counting machine. They also saw three mobile phones, two bags containing further bundles and a laptop computer. The total amount of Australian currency located in the hotel room was $1,055,920.

Mr Linggo was arrested and charged with offences contrary to s 400.9(1) of the Criminal Code 1995 (Cth) and s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Mr Linggo pleaded guilty on 2 September 2015 and was convicted on March 2016. For the first offence, he was sentenced to imprisonment for 18 months, commencing on 30 June 2015 and expiring on 29 December 2016. For the second offence, he was sentenced to 2 years and 6 months imprisonment, commencing on 30 March 2016 and expiring on 29 September 2016.

Together, Mr Linggo was sentenced to a total period of imprisonment of three years and three months. The sentencing judge also directed that, pursuant to s 19AC(1) of the Crimes Act 1914 (Cth), Mr Linggo be released upon entering into a recognizance after the expiration of two years in custody, calculated to commence on 30 June 2015 and expire on 29 June 2017.

Mr Linggo sought leave to appeal against sentence. He relied upon the following grounds of appeal:

Ground 1:   The learned sentencing judge erred by giving the applicant an inadequate discount for his guilty pleas.

Ground 2: The learned sentencing judge erred by increasing the sentence imposed on the applicant for the offence contrary to s 400.9(1) of the Criminal Code 1995 (Cth) on the basis of circumstances which would have warranted conviction for more serious offences under the Criminal Code.

Ground 3:   The learned sentencing judge erred by taking into account uncharged offences to increase the seriousness of the offences.

Ground 4:   The learned sentencing judge erred by passing a total sentence of imprisonment for 3 years and 3 months when his Honour’s stated intention was to impose “an overall sentence of three years”.

During the course of the hearing, counsel for Mr Linggo indicated that he would not pursue grounds 2 and 3, if the appeal were to be allowed on grounds 1 and 4.

The Court:

The Court granted leave to appeal and allowed the appeal. The Court imposed an aggregate sentence of 2 years and 9 months. It held:

In relation to ground 1:

(1)   Given the presence of an apparent conflict in the authorities, it was not appropriate for the three judge bench sitting in this case to determine the question whether the utilitarian value of a plea of guilty should be taken into account when calculating a discount on sentence for federal offences. [29]-[39]

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6; Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247; Lee v R [2012] NSWCCA 123; Isaac v R [2012] NSWCCA 195; C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81; R v Saleh [2015] NSWCCA 299; Gow v DPP (Cth) (2015) 298 FLR 397; [2015] NSWCCA 208; DPP (Cth) v Thomas [2016] VSCA 237; R v Harrington (2016) 11 ACTLR 215; [2016] ACTCA 10

(2)   There is a potential inconsistency in the authorities regarding whether the strength of the Crown case is relevant only to contrition and remorse or whether it also impacted on the degree of mitigation accorded to an early plea. It was not necessary for the Court to resolve this issue. [42]-[44]

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247

(3) A discount to sentence under s 16A(2)(g) of the Crimes Act 1914 (Cth) is not condition upon an offender providing assistance to authorities. This is an independent consideration. [46].

(4)   It is advisable for a sentencing judge to avoid using a range of percentages when determining the discount given for a plea of guilty as this may introduce an unsatisfactory degree of uncertainty into the sentencing process. [51

(5)   In allowing a reduction in sentence between 4 per cent and 10 per cent, the sentencing judge failed to pay appropriate regard to the extent to which the early guilty plea facilitated the course of justice. [48]

In relation to ground 4:

(6)   The sentencing judge made a mathematical error in imposing a total sentence of imprisonment of 3 years and 3 months, in circumstances where he intended to impose an aggregate sentence of 3 years. [15]-[20]

(7)   It was not necessary for the Court to resolve whether the Court should correct the error on the part of the sentencing judge but not otherwise resentence the applicant afresh, as required where other than a mathematical error is made. [19]-[20]

Lehn v R (2016) 78 MVR; [2016] NSWCCA 255; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Judgment

1. THE COURT: On 7 March 2016, the applicant, Mr Leonard Linggo, was convicted, after pleading guilty, to the following two offences:

Count 1: That between 29 June 2015 and 30 June 2015, he did possess money reasonably suspected to be the proceeds of crime, worth in excess of $100,000 contrary to s 400.9(1) of the Criminal Code 1995 (Cth). An offence under s 400.9(1) carries a maximum penalty of 3 years imprisonment and/or a fine of 180 penalty units ($30,600).

Count 2: That between 25 June 2015 and 30 June 2015, he did cause another to conduct transactions to avoid threshold reporting requirements contrary to s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). An offence contrary to s 142(1) carries a maximum penalty of 5 years imprisonment and/or a fine of 300 penalty units ($51,000).

2. The sentencing judge, Hanley SC DCJ, sentenced the applicant as follows:

Count 1:   18 months imprisonment to commence on 30 June 2015 and to expire on 29 December 2016;

Count 2:   2 years 6 months imprisonment to commence on 30 March 2016 and to expire on 29 September 2018.

3. His Honour directed, pursuant to s 19AC(1) of the Crimes Act 1914 (Cth), that the applicant be released upon entering into a recognizance after the expiration of 2 years in custody, calculated to commence on 30 June 2015, being the date that the applicant first went into custody and to expire on 29 June 2017. His Honour stated that the effect of his sentence was that he had imposed “an overall sentence of three years”.

4. On 31 March 2017, this Court, after hearing the applicant’s application for leave to appeal, made the following orders and otherwise reserved its reasons for decision:

“1   Grant leave to appeal against sentence and allow the appeal;

2   Quash the sentences imposed in the District Court on 7 March 2016 and in lieu impose the following:

Count 1   Imprisonment for 18 months commencing 30 June 2015 and expiring 29 December 2016;

Count 2   Imprisonment for 2 years and 2 months commencing 30 December 2015 and expiring 28 February 2018;

3   Direct the appellant be released on 3 April 2017 upon giving security without surety in the sum of $1,000 and entering into a recognizance to be of good behaviour for the period 3 April 2017 until 28 February 2018;

4   Judgment otherwise reserved.”

5. The Court’s reasons are as follows.

6. The applicant had been arrested at the Novotel Sydney Central Hotel on 30 June 2015. He pleaded guilty to the offences at the Local Court on 2 September 2015. The matter proceeded by way of a sentencing hearing in the District Court before his Honour on a statement of agreed facts as follows.

7. On 30 June 2015, officers of the Australian Federal Police entered the hotel room into which the applicant had booked earlier that day and observed the applicant seated at a desk, counting a quantity of Australian $50 note bundles using a counting machine. They also saw bundles of Australian currency, three mobile phones, a black Adidas bag containing $50 notes and a further black bag containing bundles of Australian $50 notes, a black Acer laptop computer with an external hard drive, as well as the applicant’s Indonesian passport and the stub of a Jetstar airline ticket in his name.

8. During the course of the search, the applicant stated to the officers that the money in the bags had been given to him by a person who had introduced himself to the applicant as “Shaun”. The applicant had met Shaun at the Mantra Hotel at Chatswood and again at the Royal Pacific Hotel in Lane Cove. On each occasion, Shaun had told him that there was $500,000 in cash in the bag and that he was to count the money and await further instructions by phone. The applicant told the police that he was paid to undertake this task.

9. The total amount of Australian currency located in the applicant’s hotel room and seized by the Australian Federal Police was $1,055,920.

10. The applicant was arrested and participated in a record of interview. During the course of the record of interview, he stated that he was in contact with a male person in Malaysia, who arranged money exchanges and paid the applicant a 0.5 per cent commission for collecting and remitting the money.

11. The method used for the collection of money involved the applicant sending to the Malaysian contact a serial number from a $5 banknote. This serial number would then be forwarded to an Australian money contact and, at the time of collecting the money, the applicant provided the $5 banknote with the corresponding serial number to the Australian contact, who exchanged it for the money. The applicant separated the money into $20,000 and $30,000 lots and deposited it into approximately 20 different bank accounts. The details of the bank accounts into which he deposited the money were provided to him by a male person whom he knew as “Awai”.

12. The applicant stated that he had engaged in the same activity on two prior occasions in which he had collected a total of $1 million from an unknown person and deposited the money into bank accounts. He had a friend from Hong Kong named “Mike”, later identified as Mike Cheung, to whom he paid 0.3 per cent of the commission to deposit cash into the bank accounts.

13. The applicant relied upon the following grounds of appeal:

Ground 1:   The learned sentencing judge erred by giving the applicant an inadequate discount for his guilty pleas.

Ground 2: The learned sentencing judge erred by increasing the sentence imposed on the applicant for the offence contrary to s 400.9(1) of the Criminal Code 1995 (Cth) on the basis of circumstances which would have warranted conviction for more serious offences under the Criminal Code.

Ground 3:   The learned sentencing judge erred by taking into account uncharged offences to increase the seriousness of the offences.

Ground 4:   The learned sentencing judge erred by passing a total sentence of imprisonment for 3 years and 3 months when his Honour’s stated intention was to impose “an overall sentence of three years”.

Consideration

14. The Court was of the opinion that leave to appeal should be granted and that grounds 1 and 4 should be allowed. The applicant indicated to the Court that if the appeal was allowed on those grounds, he would not pursue grounds 2 and 3. It is convenient first to consider ground 4.

Ground 4: mathematical error in the term of the sentence imposed

15. The applicant submitted that the sentencing judge made a mathematical error in imposing a total sentence of imprisonment of 3 years and 3 months.

16. His Honour, after imposing the sentence for each offence, as set out at [2] above, and directing that the applicant be released after the expiration of 2 years in custody, stated “[t]hat is an overall sentence of three years”. The applicant submitted that it was apparent from this comment that his Honour had erred in setting the commencement date for the sentence imposed in respect of count 2.

17. The Crown conceded that his Honour intended to impose an aggregate sentence of 3 years imprisonment and incorrectly stated the dates for the commencement and expiration of the sentence imposed for count 2, resulting in an actual aggregate sentence of 3 years and 3 months. The Crown accepted that this was apparent not only from his Honour’s express statement that he had imposed “an overall sentence of three years”, but also from his further discussion with the legal representatives in which his Honour referred to the making of a recognizance release order.

18. In that regard, the Crimes Act, s 19AC(1) provides that where an offender is sentenced to an aggregate sentence of imprisonment of 3 years or less in respect of a federal offence, the court must order the offender’s release on recognizance, as his Honour did in this case. By contrast, s 19AB(1) of the Crimes Act provides that where a federal offender is sentenced to an aggregate term of imprisonment of greater than 3 years, the court must fix a single non-parole period and not make a recognizance release order.

19. The Crown submitted that this Court should correct the accumulation error brought about by the sentencing judge’s inaccurate statement as to the commencement and expiration dates for count 2: see Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [72], but not otherwise resentence the applicant afresh as is required where other than a mathematical error is made during the course of the sentencing process: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The applicant queried whether the error was encompassed by the principle stated in Lehn v R as it would be necessary for the Court to consider the degree of accumulation.

20. For the reasons submitted by both the applicant and the Crown, it is apparent that his Honour made the mathematical error to which we have referred. Accordingly, ground 4 of the notice of appeal is allowed. As the Court also considers that ground 1 of the appeal should be allowed, it is not necessary to resolve the question regarding the application of the principle stated in Lehn, as it is necessary in any event to resentence the applicant in accordance with the principles in Kentwell.

Ground 1: The learned sentencing judge erred by giving the applicant an inadequate discount for his guilty pleas

21. The sentencing judge, by reference to s 16A(2)(g) of the Crimes Act, correctly stated that he was required to take into account the fact that the applicant had pleaded guilty. That section provides:

“16A   Matters to which court to have regard when passing sentence etc – federal offences

…

(2)   In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…

(g)   if the person has pleaded guilty to the charge in respect of the offence – that fact …”

22. The applicant had entered pleas of guilty to both charges on the second occasion that the matter was before the Court, the first occasion having been a mention at which directions were made for the service of the prosecution’s brief of evidence. The Crown accepted that the pleas were entered at the first reasonable opportunity to do so.

23. On the sentence hearing, the applicant had argued for a reduction of 25 per cent for the pleas, being a usual reduction made for an early plea, at least in respect of State offences, a matter to which we make further reference below. However, his Honour stated that he proposed to allow a reduction of between 4 per cent and 10 per cent from an otherwise appropriate sentence. His Honour identified the following reasons for allowing the discount in the range to which he had referred.

24. First, his Honour noted that the utilitarian benefits to the community as a result of the plea were not to be taken into account. Secondly, his Honour was satisfied that the applicant’s guilty plea demonstrated “some genuine remorse and acceptance of responsibility”. His Honour noted, however, that the applicant had not identified any members of the money-laundering hierarchy engaged in recruiting or otherwise requesting him to come to Australia to commit the offences. Thirdly, the plea of guilty, which was entered on 2 September 2015, the offender having been arrested and charged on 30 June 2015, was entered at the first reasonable opportunity and this had been conceded by the Crown. Finally, his Honour was satisfied, in making an assessment of the appropriate discount, that the pleas of guilty were principally as a result of the “recognition of the inevitable” in circumstances where the applicant was “caught ‘red-handed’”.

25. On the argument advanced on behalf of the applicant in support of this ground, two important matters of principle were raised for consideration. The first was whether, contrary to the sentencing judge’s observation, the utilitarian value of the plea could be taken into account in circumstances where the offences involved were federal offences. The second was whether the strength of the Crown case was a matter relevant only to contrition and remorse or whether it also impacted upon the degree of mitigation which was to be accorded to an early plea.

22. It is accepted that in sentencing for a New South Wales offence, the utilitarian value of a plea of guilty is a relevant factor in mitigation of sentence and that ordinarily, the discount given for the utilitarian value of the plea should be quantified: see this Court’s guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

23. In Thomson; Houlton, Spigelman CJ stated at [160], that “sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so”. In particular, Spigelman CJ (Foster AJA, Wood CJ at CL, Grove and James JJ agreeing) observed that:

“The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea.”

28. Depending of course on all the circumstances, a plea entered at the earliest opportunity usually attracts a discount of 25 per cent for its utilitarian value.

29. In Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 the majority, at [11]-[15], explained the relevance of a plea of guilty and the underlying rationale for allowing a plea to be taken into account in mitigation. The charge in that case was laid under the Misuse of Drugs Act 1981 (WA). The offence was committed at Perth International Airport, which was a “Commonwealth place”. Pursuant to the Commonwealth Places (Application of Laws) Act 1970 (Cth), certain state laws, including the Misuse of Drugs Act were picked up and applied with respect in Commonwealth places and state courts were invested with federal jurisdiction to hear charges for offences contrary to such laws.

30. The majority (Gaudron, Gummow and Callinan JJ) accepted, at [11], that a plea of guilty may reflect remorse and may also indicate “acceptance of responsibility and a willingness to facilitate the course of justice”. Their Honours explained, at [13], that it was not part of the rationale of allowing a plea of guilty to be taken into account in mitigation of the sentence imposed that “the plea has saved the community the expense of a trial”. Their Honours considered that if that were the rationale, it would be to discriminate against those who exercise their right to a trial.

31. Their Honours reiterated that insofar as the rationale for the rule depends on factors other than remorse and acceptance of responsibility, it was to be expressed in terms of “the willingness of the offender to facilitate the course of justice”. Their Honours added, at [22], that “a significant consideration” in assessing the extent to which a plea of guilty indicated a willingness to facilitate the course of justice, was “whether the plea was entered at the first reasonable opportunity”.

32. Cameron has subsequently been understood and applied as establishing that the utilitarian value of a plea of guilty is not to be taken into account when sentencing for federal offences: see Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247; Lee v R [2012] NSWCCA 123; Isaac v R [2012] NSWCCA 195 at [24] to [27]; C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81; at [33]; R v Saleh [2015] NSWCCA 299 per Beech-Jones J at [55].

33. There is other authority, however, which has doubted that Cameron stands for any such proposition: see Gow v DPP (Cth) (2015) 298 FLR 397; [2015] NSWCCA 208 per Basten JA at [28] (Hamill J expressing limited agreement at [72]); DPP (Cth) v Thomas [2016] VSCA 237.

34. In Thomas, the Victorian Court of Appeal gave consideration at [7], to what was meant by facilitating the course of justice, observing that:

“… A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender’s plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment.”

35. We consider this to be an apt description of what is meant by the term “facilitate the course of justice”. There is a real question, however, as to whether there are other factors which are comprehended within that description and whether those factors are co-extensive with what is encompassed within the utilitarian value of the plea or whether that is a separate concept altogether. The Court in Thomas also considered that question. For example, it added, at [7]:

“… The offender’s willingness to follow that course [ie, to plead guilty] often described in the authorities as ‘co-operation’, vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.”

36. However, it also considered, as we understand the judgment, that the utilitarian value of the plea is a separate concept, observing that:

“… Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of that plea. However, the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, will not always have the same mitigating weight as the utilitarian benefit of avoiding a contested trial.”

37. The question whether the utilitarian value of the plea is relevant to sentencing in respect of federal offences was also raised in R v Harrington (2016) 11 ACTLR 215; [2016] ACTCA 10. That case was decided prior to the decision of the Victorian Court of Appeal in Thomas and only shortly after the decision in Gow. Murrell CJ considered, at [33], that Basten JA’s observations in Gow regarding the issue of a ‘utilitarian discount’ were obiter, but did not come to a final view on the question whether a discount for the utilitarian value of a plea should be allowed for a federal offence in circumstances where the Court had not had the benefit of full argument. In the case before this Court, counsel for the applicant, in his careful and helpful argument, submitted that Basten JA’s decision on this point was part of the ratio decidendi of his Honour’s decision.

38. In their reasons in Harrington, Refshauge ACJ and Gilmour J, considered, at [130], that “the majority’s conclusion in Gow was reached although no submissions had been put by the parties as to Cameron during the hearing of that appeal”. Their Honours concluded, at [131], that “the majority decision in Gow on this point is clearly wrong.”

39. Given the jurisprudential conflict that is apparent on the authorities, the Court raised with counsel in this matter the appropriateness of another three judge bench expressing its view, not only on the proper understanding and application of Cameron and, in particular, whether it is authority that the utilitarian value of the plea is not relevant for the purposes of sentencing for federal offences, but also on the question of whether any or all of the intermediate appellate decisions to which we have referred, were “plainly wrong” or were distinguishable, and/or whether the observations of Basten JA in Gow were, or were not, obiter.

40. The Crown explained that the question of a five judge bench being constituted had been the subject of communication between the parties. That course was not acted upon, it would seem, because of the limited period that would be available between a hearing date and any release of the applicant on recognizance, should the appeal be successful.

41. As the Court found that ground 1 of the appeal could be determined in favour of the applicant on other bases without finding it necessary to resolve the question whether the utilitarian value of the plea was to be taken into account, the Court proceeded to resentence the applicant and impose the sentences set out at [4] above. However, as the question whether the utilitarian value of a plea is relevant to sentencing for federal offences generally is an important one, we wish to stress that it is essential that, in future, parties apply at an early point for a five judge bench to sit and determine the question, unless, of course, it has been earlier determined by the High Court or a five judge bench of another intermediate court of appeal.

42. Before giving our reasons for imposing the sentences ordered at the conclusion of the hearing on 31 March 2015, we also draw attention to the second matter of concern to which we have referred, namely, whether the strength of the Crown case was relevant only to contrition and remorse, or whether it also impacted on the degree of mitigation accorded to an early plea. In Thomson; Houlton, the Court was also asked to consider this issue. Spigelman CJ concluded, at [137], that the strength of the Crown case was relevant to contrition or remorse in that “a ‘recognition of the inevitable’ may qualify the extent of genuine contrition”.

43. However, in Tyler, which involved, relevantly, offences under the Customs Act 1901 (Cth), Simpson J (as her Honour then was) stated, at [110]-[114], that although in Cameron the High Court specifically excluded reference to the utilitarian value of the plea, a relevant consideration in assessing an offender’s willingness to facilitate the course of justice, was, nonetheless, at least in some cases, the strength of the Crown case. We note that Spigelman CJ agreed with her Honour’s reasons. Simpson J added, at [114]:

“… this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable.”

44. It is also not necessary for the Court to resolve that potential inconsistency or to express a view upon it. However, we raise it so as to alert other parties to the issue, as it is undoubtedly a matter that needs to be resolved and will most likely be an aspect of any resolution of the issue relating to the relevance of the utilitarian value of the plea in sentencing for federal offences.

Error in this case

45. In our opinion, the sentencing judge, in allowing a reduction in sentence of between 4 per cent and 10 per cent, erred in two principal respects.

46. First, his Honour erred in having regard to the fact that the applicant had not disclosed the names of those involved in the enterprise. That consideration is irrelevant to the determination of the extent to which a sentence should be mitigated for a plea of guilty. Section 16A(2)(g) is not conditioned upon an offender providing assistance. The provision of assistance to authorities is an independent consideration which falls for consideration under s 16A(2)(h).

47. But in any event, it has been recognised by this Court that “there are good and valid reasons for … offenders facing terms of imprisonment to be reluctant to identify their co-offenders”: see Ellis v R [2015] NSWCCA 262, at [68], citing Pham v R [2010] NSWCCA 208 at [27]; R v Baleisuva [2004] NSWCCA 344 at [29]. Although the Court’s observations in those cases related to drug offenders, we are of the opinion that that they equally apply to offences such as have been charged here, where, by the very terms of the offences charged, serious underlying and presumably dangerous criminality is involved.

48. Secondly, the very small discount allowed by his Honour failed to pay appropriate, if any, regard to the extent to which the early plea facilitated the course of justice, such as to be indicative of error. We have reached this conclusion notwithstanding that in the ordinary course, the question of the weight to be given to a plea of guilty is a matter for the discretion of the sentencing judge.

49. The Crown submitted that his Honour had, in fact, had regard to the facilitation of the course of justice inasmuch as he had taken the early plea of guilty into account. However, we have a real doubt that he did so. His Honour made no mention of the fact that the early plea facilitated the course of justice. His Honour’s reference to the plea was made without any explanation of the relevance of it being an early plea or the extent to which he took it into account.

50. Further, as the Court stated in Thomas, a guilty plea, of its nature, is an acknowledgement of the proper application of the processes of the criminal law. Significant weight needs to be given to that factor alone. It is also relevant that in Cameron, at [25], the majority stated that the Court of Appeal “was in error in stating that there had been ‘no saving in the Magistrates Court’ for the appellant’s plea of guilty rendered a preliminary hearing unnecessary”. A discount of between 4 per cent and 10 per cent understates the importance of these factors in a significant way such as to constitute error.

51. We would also add that it is difficult to know, from his Honour’s reasons or from the sentence imposed, how the discount of between 4 per cent and 10 per cent was actually applied to the sentence that his Honour would otherwise have imposed. This is unfortunate, as it did not enable the offender or the Court to know what sentence would have been imposed but for the plea and whether the discount that was imposed was 4 per cent or 10 per cent or closer to one or other of those figures. In short, it introduced an unsatisfactory degree of uncertainty into the sentencing process. For that reason, we would strongly caution, in any sentencing process, against using a range of percentages when determining the discount given for a plea of guilty.

52. Given the errors to which we have referred, it was necessary for this Court to resentence the offender: Criminal Appeal Act 1912 (NSW), s 6(3). Section 6(3) was considered by this Court in Lehn, where Bathurst CJ stated, at [68], that it:

“… requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence.”

53. In Kentwell, the plurality explained the process in which the Court was required to engage, at [43], as follows:

“After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender’s appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal.” (citations omitted)

54. We were of the opinion that no lesser sentence than that imposed by his Honour, or indeed no greater sentence, ought to be imposed for count 1. The offence was serious, involving an amount of $1 million, some 10 times greater than the minimum amount specified in s 400.9 of the Criminal Code. We otherwise determined that an appropriate discount for the plea of guilty was 20 per cent. In allowing a discount of 20 per cent, there was a discrepancy of a few days in ordering the applicant’s release on 3 April 2017. However, we took that slight discrepancy into account in determining the sentence we considered was appropriate to impose.

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Decision last updated: 06 April 2018