Mead v Police - [2014] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MEAD v POLICE
[2014] SASC 61
Judgment of The Honourable Justice Sulan
21 May 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The defendant was charged with a number of offences involving theft, unlawful possession and going equipped for the commission of an offence of dishonesty and was sentenced to a total of 15 months’ imprisonment with a non-parole period of six months’ imprisonment.
Whether Magistrate failed to give a sufficient discount for the defendant’s guilty pleas pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA). Whether a discount of 40 per cent should have been given.
Held (allowing the appeal):
1 Section 10B of the Criminal Law (Sentencing) Act 1988 (SA) does not require a sentencing court to expressly identify the specific reduction given in respect of a plea of guilty. However, it is desirable for a court to do so. There is a danger that by failing to identify the reduction given pursuant to s 10B, an inference can be drawn that the sentencing court has failed to have regard to a relevant consideration and the sentence is liable to be set aside.
2 Section 10B of the Criminal Law (Sentencing) Act 1988 (SA) requires a court to consider what, if any, discount is appropriate in the circumstances, having regard to s 10B, independently of any consideration of the appropriate sentence to be given having regard to other mitigatory factors.
3 The power conferred by s 10B(2) of the Criminal Law (Sentencing) Act 1988 (SA) is discretionary and does not require a sentencing court to apply the maximum discount available under the applicable sub-section.
4 The Magistrate erred by failing to have regard to s 10B of the Criminal Law (Sentencing) Act 1988 (SA).
Sentence set aside and appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C; Criminal Law Consolidation Act 1935 (SA) s 134, s 270C; Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing)(Guilty Pleas) Amendment Act 2012 (SA); Acts Interpretation Act 1915 (SA) s 22, s 34, referred to.
R v Place (2002) 81 SASR 395; R v Shannon (1979) 21 SASR 442; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Stambolis [2006] NSWCCA 56; R v Dib [2003] NSWCCA 117, considered.

MEAD v POLICE
[2014] SASC 61

SULAN J: This is an appeal against sentence. The defendant and appellant, Jason Luke Mead, was charged with a number of offences involving theft, unlawful possession and going equipped for the commission of an offence of dishonesty. He pleaded guilty and was sentenced in the Magistrates Court to a total of 15 months’ imprisonment with a non-parole period of six months’ imprisonment.
He appeals on the ground that the Magistrate erred by failing to give sufficient discounts for the defendant’s guilty pleas to some of the offending. It is submitted that a discount of 40 per cent should have been given pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA).
Background
On 21 November 2013, the defendant was sentenced for offences which occurred on four separate occasions. It is convenient to summarise the offending by reference to the date on which it occurred.
The offending of 28 November 2012[1] (the “November 2012 offending”) consisted of three counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”), one count of unlawful possession contrary to s 41(1) of the Summary Offences Act 1953 (SA) and one count of going equipped for the commission of an offence of dishonesty contrary to s 270C of the CLCA. The counts of theft relate to two mobile telephones taken from a Telstra Shop on two separate occasions[2] and three pairs of sunglasses taken from OPSM. The unlawful possession concerned the possession of fragrances and magnets, and the count of going equipped concerned the possession of razor blades.
[1] AMC-12-15101.
[2] The first occurring the day earlier on 27 November 2012.
The offending of 23 December 2012[3] (the “December 2012 offending”) involved one count of theft contrary to s 134 of the CLCA and one count of going equipped for the commission of an offence of dishonesty contrary to s 270C of the CLCA. The defendant stole a bottle of fragrance from David Jones. The defendant also had in his possession a set of pliers.
[3] AMC-13-455.
The offending of 30 August 2013[4] (the “August 2013 offending”) involved the theft of an electronic tablet device from the Telstra Shop, contrary to s 134 of the CLCA.
[4] AMC-13-12953.
The offending of 5 September 2013[5] (the “September 2013 offending”) involved the theft of a mobile phone from JB Hi Fi, contrary to s 134 of the CLCA.
[5] AMC-13-15284.
The Magistrate also dealt with a breach of bail committed on 13 September 2012 which concerned the provision of a urine sample which tested positive to cannabis.[6] The defendant spent time in custody after he was arrested. The Magistrate considered the time spent in custody to be a sufficient penalty and he convicted the defendant without further penalty. There is no challenge to this sentence.
[6] MCHHL-13-919.
On 21 January 2013, the defendant intimated that he would plead guilty to all charges in respect of the November 2012 offending and the December 2012 offending.[7] The defendant applied for and was assessed as eligible for the Magistrates Court Treatment Intervention Program. He was admitted to the Intervention Program with supervised bail conditions.[8] He participated in the comorbidity stream concerning drug abuse and mental health factors. He was discharged from the program in August 2013 and subsequently referred for sentencing.
[7] Guilty pleas in respect to the November 2012 offending were entered on 3 June 2013 and guilty pleas in respect to the December 2012 offending were entered on 25 September 2013.
[8] Criminal Law (Sentencing) Act 1988 (SA), s 19B.
On 25 September 2013, the defendant appeared before the Magistrate in respect of the November 2012 and December 2012 offending and in relation to the August 2013 offending. On 7 November 2013 the defendant entered a guilty plea for the August 2013 offending. The Magistrate then heard submissions on sentence. A number of reports and references were provided to the Court. The Magistrate adjourned the case for sentence.
Upon leaving the courtroom, the defendant was immediately spoken to by police and charged with the September 2013 offending. He entered a plea of guilty to that offence on 21 November 2013, and on that date was sentenced for all of the offending to which I have referred.
Personal circumstances
The defendant was born in December 1981 and is 32 years of age. He has an older and a younger brother. His father died unexpectedly in 2013.
He attended school until Year 11. He was diagnosed with Attention Deficit Disorder and placed on Ritalin and Dexamphetamines from the age of 11 years. He suffered from behavioural and learning difficulties at school. He was teased by other students because he was overweight.
After leaving school, he completed a 12 month traineeship in the hospitality industry, working as a kitchen hand. Over the years, he has worked as a labourer, the most significant position being as a furniture removalist for a period of five years. He has had no real employment for the last seven years, relying on Centrelink benefits for income. He has filed for bankruptcy, having accumulated a debt of approximately $30,000.
He has had two significant relationships. The first was with a young woman who did not use drugs. He remained drug free for a two year period but succumbed to pressures and returned to using drugs. The second relationship lasted for approximately two years.
He commenced smoking cannabis when he was 16 years of age and then smoking heroin at the age of 17 ½ years. After using heroin for eight to ten months, he progressed to injecting the substance. He is addicted to heroin. He has experimented with other drugs including ecstasy and amphetamines.
He has participated in various programs to overcome his addiction including Alcohol and Other Drug courses, Victim Awareness, Moral Reconation Therapy and treatment through Drug and Alcohol Services, SA. Prior to his imprisonment, he was receiving counselling through Mission Australia.
Two events had a significant impact on the defendant. The first was the unexpected death of his father. The defendant was drug free at the time of his father’s hospitalisation and following his death. At around the same time, a close friend of the defendant died of a heroin overdose. They had been participating in a Court ordered Drug Intervention Program. As a result of them both using heroin whilst enrolled in the program and his friend’s subsequent death, the defendant resigned from the program.
A pre-sentence report was tendered before the Magistrate. The author of the report states that the defendant advised her that since his father’s death he felt that he had gained some control of his addiction and his life was at a turning point.
The defendant first came to the attention of police when he was 21 years of age. His offending is characterised by theft and dishonesty offences, with some minor vehicle related offences. He has previously breached suspended sentence bonds on a number of occasions.
References were provided to the Court by the defendant’s mother and younger brother. Both speak of the defendant’s battle with drug addictions during his adult years and the impact it has had on the family. They both state that the defendant has been on a positive path since the death of his father. They continue to support him.
Sentencing remarks
The Magistrate referred to defence counsel’s submissions that the defendant was heroin-free during the period of the offending and that the offending was not committed to feed an ongoing drug habit, but rather was part of an emotional breakdown. He then referred to the defendant’s participation in the Treatment Intervention Program and antecedent history. He said:
I do not intend to repeat the contents of all of the documentation provided to me. I make it clear that I have taken everything into account. I am mindful of the various authorities referred to by counsel along with the others I have referred to above. I also remind myself of somewhat dated, but still very relevant, sentencing principles enunciated in cases such as Yardley v Betts and Webb v O’Sullivan and also Ozenkowski. There is no doubt rehabilitation is a very important aspect of the sentencing process. I am mindful of the provisions of section 10 and note all my options under the Criminal Law (Sentencing) Act.
I make it clear that I am not satisfied that what has been put in place for the defendant meets the criteria or satisfies the criteria for an ‘intervention program’ under section 19B. Even if I am wrong about that, I would not be prepared to utilise that section in any event. I am firmly of the view that the defendant has in many respects already had his opportunity to participate in such an intervention program and it follows in many respects has had [sic] his Griffiths Remand. Those comments are a direct reference to his involvement and time spend on the Treatment Intervention Program. I again make reference to the various progress/review reports from that program. I note the circumstances of his removal from that program and they are significant to me. Certainly, I give the defendant some credit for being prepared to undertake the Treatment Intervention Program in the first place. The fact he did not successfully complete the program is not necessarily a negative against him – it is simply the case that he does not get the credit he might otherwise receive for a successful completion of such a program. Given his time on that program, however, I am strongly of the view that penalty ought to be imposed at this stage.
Given the defendant’s previous offending history and the nature of the various matters before me, it is inevitable in my view that the only appropriate penalty is a period of imprisonment. As his counsel has previously conceded, the defendant has an abysmal previous offending history. Whilst the offending before me occurred perhaps at different times and for different reasons, in my view the offences call for a period of imprisonment.
The Magistrate then imposed sentences for the four groups of offending. He said:
I note the offending in late 2012 occurred not long after his release from custody for very similar matters. I intend to utilise section 18A for the offending on 28 November 2012. My starting position is a period of 8 months imprisonment which I reduce to 6 months imprisonment given the defendant’s guilty pleas.
In relation to the offending on 23 December 2012, my starting point is a period of 4 months imprisonment, which I reduce to 3 months imprisonment given the defendant’s guilty pleas. This period of 3 months imprisonment is to be cumulative to the 6 months just imposed.
I accept his offending in August and September 2013 does fit into a slightly different category. Whilst it may not be a lapse back into offending for drug related purposes, it is a lapse back into offending of a dishonest nature nonetheless. I am of the view that periods of imprisonment are also the only appropriate penalty for those offences.
For the offending on 30 August 2013, what would have been 4 months imprisonment will be reduced to 3 months imprisonment, given the defendant’s guilty pleas. Again, this period is to be cumulative.
For the offending on 5 September 2013, again what would have been 4 months imprisonment will be reduced to 3 months imprisonment, given the defendant’s guilty pleas. Again, this period will be cumulative.
The end result of those cumulative sentences is a head sentence of 15 months imprisonment. In considering the issue of a non-parole period, I make it clear that I take into account all that has been put upon the defendant’s behalf. Given matters personal to the defendant, I am of the view that perhaps a lower than otherwise non-parole period is appropriate in all the circumstances and I therefore fix a non-parole period of 6 months.
The appeal
The defendant appeals on the ground that the Magistrate erred by giving an insufficient discount of 25 per cent in respect of the defendant’s guilty pleas to the August and September 2013 offending. It is submitted that a discount of 40 per cent should have been given pursuant to s 10B(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA). Counsel for the defendant submits that, absent any factors which would justify imposing less than the maximum discount, s 10B of the Sentencing Act requires a sentencing court to apply the maximum discount available under the applicable sub-section to the sentence imposed on a defendant who pleads guilty to the charge of an offence. Counsel submits that, where a sentence is reduced pursuant to s 10B by some lesser amount than the prescribed maximum, the court is required to identify the reasons for doing so. In addition to the defendant’s primary contention, it is submitted that s 10B of the Sentencing Act imposes a number of further requirements on a sentencing court. These submissions are set out later in these reasons.
It is conceded by the respondent that s 10B applied to the sentence to be imposed in respect to the August and September 2013 offending. The respondent submits, however, that the power conferred by s 10B(2) is discretionary and that a sentencing court is not required to apply the maximum discount available. The respondent accepts that the further matters raised by the defendant are appropriate common law considerations, although they are not imposed by s 10B of the Sentencing Act.
Section 10B of the Sentencing Act commenced operation on 11 March 2013 and applies to proceedings for summary offences in the Magistrates Court commenced on or after 11 March 2013, regardless of when the offence occurred. The section was introduced by the Criminal Law (Sentencing)(Guilty Pleas) Amendment Act 2012 (SA) together with s 10C which contains similar provisions dealing with reductions for guilty pleas where the sentencing court is other than a court to which s 10B applies.
Section 10B of the Sentencing Act provides as follows:
10B—Reduction of sentences for guilty plea in Magistrates Court etc
(1)This section applies—
(a)if the sentencing court is the Magistrates Court; or
(b)if the sentencing court is sentencing in relation to a matter dealt with as a summary offence; or
(c)in any other circumstances prescribed by the regulations.
(2)Subject to this section, if a defendant has pleaded guilty to an offence or offences—
(a)not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but—
(i)if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or
(ii)in any other case—before the commencement of the trial for the offence or offences,
the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(d)in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3)If—
(a)the maximum reduction available under subsection (2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b)the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i)the court did not sit during that period; or
(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii)the court was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b)the stage in the proceedings for the offence at which the defendant first indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)the circumstances surrounding the plea;
(d)in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
(5)Nothing in this section affects the operation of sections 15, 16 and 17.
(6)For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.

It is convenient to deal with the defendant’s submissions as to the further requirements said to be imposed by s 10B before dealing with the primary contention. First, it is submitted that s 10B requires a court to expressly identify the actual percentage reduction that has been made for the guilty plea. The Court of Criminal Appeal has emphasised the importance of stating the reduction in sentence given to a defendant upon entering a plea of guilty. In Place,[9] Doyle CJ, Prior, Lander and Martin JJ considered that a failure to identify a specific reduction in a sentence given for a guilty plea is not an error of principle nor, in itself, a ground for interference with a sentence. At the time Place was decided, s 10(1)(g) of the Sentencing Act provided that in determining the sentence for an offence, a court should have regard to the fact that a defendant has pleaded guilty to the charge of the offence.
[9] R v Place (2002) 81 SASR 395. See also R v Shannon (1979) 21 SASR 442.
The plurality identified the benefits of stating the reduction given in respect of a plea of guilty and considered that the practice typically followed by sentencing courts in South Australia should continue. They observed:[10]
The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons for it are given. The community and the appellate court are similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
The system is fair and practical. It has worked well in practice for a number of years. In our opinion, it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the court has departed from its present practice. An explanation for the departure based on describing the sentencing process as an instinctive synthesis would be greeted with scepticism.
For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of the reduction, the current practice of taking into account the timing of the plea, contrition, cooperation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.
[10] R v Place (2002) 81 SASR 395, 425.
In my view, there is nothing in the words of s 10B of the Sentencing Act which make it mandatory for a sentencing court to expressly identify the specific reduction given in respect of a plea of guilty. However, for the reasons identified in Place, it is desirable for a court to do so. There is also a danger that by failing to identify the reduction given pursuant s 10B, an inference can be drawn that the sentencing court has failed to have regard to a relevant consideration and the sentence is liable to be set aside.
The defendant contends that the discount for the guilty plea must be to the head sentence, before the head sentence is reduced or discounted for any other mitigating factors such as remorse, restitution or assistance to the authorities. In my view, it is undesirable to prescribe any particular method for constructing an appropriate sentence where s 10B is enlivened. The new regime in respect of sentencing discounts for guilty pleas requires a court to consider what, if any, discount is appropriate in the circumstances having regard to s 10B, independently of any consideration of the appropriate sentence to be given having regard to other relevant factors. That is not to say that a court must apply some rigid formula, stating what discounts have been apportioned for specific circumstances that may be present. One possible way of constructing a sentence where s 10B is enlivened is for a court to consider all relevant matters, including those referred to in s 10 of the Sentencing Act, and state what a defendant’s sentence would have been but for the plea of guilty. The discount having regard to s 10B could then be applied to that notional sentence. This is a method which has been adopted by South Australian courts for constructing sentences. In my view, that procedure is entirely consistent with s 10B of the Sentencing Act.
I turn now to the defendant’s primary submission that, absent any militating factors, s 10B of the Sentencing Act requires a court to reduce a sentence by the maximum amount available under the relevant sub-section. The defendant submits that a discount of 40 per cent should have been given pursuant to s 10B(2)(a) for the August and September 2013 offending. The contention is that the word “may” used in the phrase “may reduce the sentence that [the court] would otherwise have imposed” in sub-sections 10B(2)(a), (b), (c) and (d),[11] is not discretionary. The defendant submits that where a sentencing court applies some lesser discount than the maximum available under the applicable sub-section, the reasons for doing so must be identified.
[11] Sub-section 10B(2)(d) is cast is slightly different terms, using the phrase “may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed”.
There are several reasons why the defendant’s construction should not be accepted. First, the word “may”, used in sub-sections 10B(2)(a), (b), (c) and (d), indicates that a discretionary power is conferred. In this respect, s 34 of the Acts Interpretation Act 1915 (SA) is pertinent. It provides:
34—"May" imports a discretion, "shall" is imperative
Where, in any Act passed after the first day of January, 1873, the word "may" is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word "shall" is used in conferring a power, it implies that the power must be exercised.
The words “up to” in sub-sections 10B(2)(a), (b), (c) and (d) also indicate that the power to reduce a sentence pursuant to the section is a discretionary power. Section 10B of the Sentencing Act codifies the common law practice of reducing the sentence that would otherwise have been imposed upon a defendant but for a plea of guilty.[12] Section 10B(2) provides a sliding scale of maximum discounts for guilty pleas, with greater discounts available for the earlier in the stage of proceedings at which the plea is entered. The section provides upper limits on the amount of the reduction available for a guilty plea. No minimum discount has been prescribed by Parliament. I have had regard to the Second Reading Speech. The Attorney-General said: [13]
Any perception that the bill will allow offenders to escape their 'just deserts' and appropriate punishment by pleading guilty is mistaken. The figures for the discounts in the bill are not intended to be overly rigid or mechanically applied. They merely provide the upper limit at which a discount for a guilty plea can be set. Though there may be debate as to what should be the precise upper limits, the figures in the bill are not overly generous. They are consistent with existing sentencing practice.
…
The Bill contains an overriding provision for any court to be able to decline to provide all or part of a discount for a guilty plea within the ranges in the Act having regard to public interest considerations, namely where the gravity of the offence and/or the circumstances of the defendant are such that the sentence that would arise from conferring the discount would be so inadequate as to 'shock the public conscience'. This expression is not new and is consistent with that already used in governing prosecution appeals against sentence. It is expected that the use of this provision will be rare but it is a necessary provision to make very clear that the courts ' discretion is to award up to the level of the discount—it need not award the level of discount, especially for the most repugnant offender or offences. In fact, it need not award a discount at all if the circumstances demand such a course.
[12] See, R v Shannon (1979) 21 SASR 442.
[13] Hansard, House of Assembly, Wednesday 11 July 2012, page 2427.
Section 22(1) of the Acts Interpretation Act 1915 (SA) is also relevant. It provides:
22—Construction that would promote purpose or object of an Act to be preferred
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
The mischief at which the section was directed is evident from the Second Reading Speech.[14] The Attorney-General said:
The Criminal Law Sentencing Act (Sentencing) (Guilty Pleas) Amendment Bill 2012 regulates and makes transparent the sentencing discounts given to offenders who plead guilty. The main objective of the bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way.
…
The increasing backlogs and delays in cases coming up for trial in South Australian higher courts have been a major and longstanding concern. If allowed to continue, this trend will seriously erode public confidence in the criminal justice system and cause major problems in the administration of criminal justice. It is a well known and apt maxim that 'justice delayed is justice denied'. Though this applies to defendants, it applies especially to victims and witnesses and has an especially adverse effect on vulnerable victims, such as children or those with an intellectual impairment.
[14] Hansard, House of Assembly, Wednesday 11 July 2012, page 2426.
The purposes of the Act are to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. A construction of the power conferred by s 10B(2) as discretionary is not inconsistent with the purpose of the Act. I do not accept the defendant’s submission that the objectives of the Act will only be achieved if the maximum discount under the applicable sub-section of s10B(2) is applied. The power conferred by s 10B(2) must be exercised judicially. It must be exercised having regard to the factors contained in s 10B(4). Sub-sections 10B(2)(a), (b), (c) and (d) create a range of sentencing discounts. It would be expected that, all other factors being equal, a defendant who pleads guilty on his or her first appearance would receive a greater discount than a defendant who enters a plea of guilty not less than four weeks before the date fixed for trial or thereafter.
The factors to which a sentencing court must have regard in determining the appropriate reduction for a guilty plea pursuant to s 10B(4) are a further indicator that the power conferred by s 10B(2) is discretionary. Those circumstances include: whether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience; the circumstances surrounding the plea; and any other factor or principle the court thinks relevant. It is to be observed that not all of the factors identified by s 10B(4) are aggravating factors. A sentencing court could, for example, have regard to the strength of the prosecution case in determining the appropriate reduction. In such a case, there may be no aggravating factors present yet the appropriate reduction given in respect to the plea of guilty is something less than the prescribed maximum.
I turn now to the application of s 10B of the Sentencing Act to the present case.
Failure to have regard to s 10B of the Sentencing Act
The Magistrate discounted all of the notional sentences he imposed for the four incursions into offending by 25 per cent on account of the defendant’s guilty pleas. It is conceded by the defendant that s 10B of the Sentencing Act was not raised with the Magistrate during sentencing submissions. On the face of the Magistrate’s remarks, there appears to be no distinction in the way the Magistrate treated the guilty pleas to the offences prior to and post the introduction of s 10B of the Sentencing Act. No reference was made to s 10B in respect to the August and September 2013 offending. Accordingly, error is disclosed in the exercise of the sentencing discretion in that the Magistrate failed to have regard to a relevant consideration. [15] The sentence should be set aside.
[15] See for example: House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, [25].
Does s 10B(1) apply to the August 2013 Offending
The defendant entered a plea of guilty in respect of the September 2013 offending on his first appearance in relation to that matter. Accordingly, he is entitled to receive a reduction in sentence of up to 40 per cent for that offending pursuant to s 10B(2)(a).
The original Complaint charging the August 2013 offending contained two counts. The first count alleged the theft of an electronic tablet device and a mobile phone cover. The second count alleged the unlawful possession of a phone cover. The defendant first appeared in court in relation to the offending on 25 September 2013. He intimated a guilty plea to the theft of the electronic tablet device but disputed the theft and unlawful possession of the phone cover. The proceedings were adjourned for negotiations. On 16 October 2013 the defendant appeared in court in relation to a bail variation. Subsequently the prosecution amended the Complaint by removing reference to the theft and unlawful possession of the phone cover. On 7 November 2013 the defendant entered a guilty plea to the charge of theft in respect to the electronic tablet device.
Section 10B(3)(iii) of the Sentencing Act provides that if the maximum reduction available under s 10B(2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period and the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because the court was, because of reasons outside the control of the defendant, unable to hear the defendant's matter during that period, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
In an affidavit sworn on 6 May 2014, the defendant states that he was aware of the reductions in sentence available to defendants who plead guilty. In relation to the August and September 2013 offending, the defendant states:
I believe that I did everything I could for the purposes of pleading guilty at the earliest opportunity to the theft charge committed on 30 August 2013 and the theft charge committed on 5 September 2013. I believe that I did everything I could as a result of the incentive for pleading guilty to get the maximum possible discount. I pleaded guilty because I wanted to plead guilty and I wanted to make sure that the court did not adjourn matters. I did not want to investigate whether the prosecution could prove its case or had enough evidence against me. I realised that because I had been charged with these offences that the best course to take was to plead guilty and that would save time and not delay matters because I was also pursuing my rehabilitation at the time and that by pleading guilty I was assisting in bringing everything to light to pursue my rehabilitation as best as possible. I was undertaking as much rehabilitation as I could in terms of psychological counselling with a psychologist, Dr. Jack White; undergoing drug treatment programs and abiding by the requirements of those programs. This was referred to in support letters that I had provided to my lawyer that was in turn provided to the courts. I understood that pleading guilty was an important part of the process of rehabilitation and I learnt that from the rehabilitation work I had already undertaken after pleading guilty and being accepted into the TIP program and as a result of the psychological counselling and drug treatment and counselling that I had been receiving throughout 2013 whether in the TIP program or in the subsequent rehabilitation programs.
By pleading guilty to those two charges as soon as I could I wanted to show to the court that I accepted responsibility for my offending conduct and that I was genuine in wanting to get help to stop offending. I understood that the prosecution of me for those charges was based on CCTV footage of the offences and I did not want to challenge that evidence or have it produced for me to inspect. I was aware that I had the right to see the prosecution evidence and have it disclosed for the purposes of determining whether or not to plead guilty. I am aware that is a right available to a defendant and a course taken by defendants to have the prosecution prove a charge. I did not want to do that and I did not want to delay my court cases and my sentencing.
Annexed to the defendant’s affidavit is a letter dated 14 October 2013 from his counsel, Mr G Mancini, to the police prosecutor. It states:
As previously indicated, count 1 is admitted to the extent of the Samsung Galaxy Note 2. The Samsung cover referred to in count 1 is disputed. It was not stolen if my client was in possession of it. I ask prosecution to withdraw that. It is not significant.
I am not sure whether count 2 relates to the same phone cover or a different phone cover. Again that is disputed and should be withdrawn. Please advise.
The issues that arise are as to the proper construction of s 10B(3)(iii) of the Sentencing Act and whether, in the circumstances, it ought to apply in the present case.
There are circumstances in which a delay in a defendant pleading guilty is as a result of negotiations with the prosecuting authorities about the charges, or the particulars of a charge, or of the underlying facts. The question of whether, in such circumstances, a defendant should be entitled to an early plea discount must depend on the circumstances of each case. In New South Wales, views have been expressed that if there is a long delay before a plea is entered, even after a lesser charge is substituted, then the utilitarian effect of an early plea has been lost. The defendant is not, therefore, entitled to the full discount for an early plea.[16]
[16] See R v Dib [2003] NSWCCA 117, [5]-[6]; R v Stambolis [2006] NSWCCA 56, [11].
I consider that the circumstances of each case must be considered. If a defendant was unable to enter a plea until a later time than that prescribed for an early plea, due to an error on the part of the prosecuting authorities, there may be good reason in giving a defendant a substantial discount on their sentence. On the other hand, if delay has occurred due to some factual position taken by a defendant, then that may reduce the amount of discount the court will give for a plea of guilty.

The present case was not a case in which the defendant withheld a plea of guilty to gain a forensic advantage in being able to test the strength of the prosecution case or in attempt to have the charges amended in exchange for agreeing to plead guilty to a lesser charge. The defendant intimated a plea of guilty on his first appearance in court in relation to the offending. On the face of it, there was an error in the Complaint. The error related to both counts on the Complaint. In the circumstances, I consider that pursuant to s 10B(3)(iii) of the Sentencing Act the defendant is entitled to receive a reduction in sentence of up to 40 per cent for the August 2013 offending.
Resentencing
I have outlined the circumstances surrounding the offending and the personal circumstances of the defendant earlier in these reasons. I consider that there is no reason to impose sentences for the November and December 2012 offending different to that imposed by the Magistrate. Accordingly, for the November 2012 offending I would impose one sentence pursuant to section 18A of the Sentencing Act. I take as a starting position a period of eight months’ imprisonment which I reduce to six months’ imprisonment given the defendant’s guilty pleas.
In relation to the December 2012 offending my starting point is a period of four months’ imprisonment, which I reduce to three months’ imprisonment given the defendant’s guilty pleas. This period of three months’ imprisonment is to be cumulative to the six months imposed for the November 2012 offending.
In respect to the August 2013 offending, but for the defendant’s guilty plea I would have sentenced him to four months’ imprisonment. Pursuant to sections 10B(2)(a) and 10B(3)(b)(iii) of the Sentencing Act, I would reduce the sentence to two months and two weeks’ imprisonment. This period is to be served cumulatively.
In respect to the September 2013 offending, but for the defendant’s guilty plea I would have sentenced the defendant to four months’ imprisonment. Pursuant to s 10B(2)(a) of the Sentencing Act I would reduce the sentence to two months and two weeks’ imprisonment. This period is also to be served cumulatively.
The result of the cumulative sentences is a total head sentence of 14 months’ imprisonment. I would not interfere with the non-parole period fixed by the Magistrate. I would fix a non-parole period of six months.
Conclusion
I would allow the appeal and sentence the defendant to a total of 14 months’ imprisonment with a non-parole period of six months’ imprisonment. The sentence and non-parole period are to commence on 21 November 2013.