Miller v The Queen
[2018] ACTCA 21
•1 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Miller v The Queen |
Citation: | [2018] ACTCA 21 |
Hearing Date: | 14 February 2018 |
DecisionDate: | 1 June 2018 |
Before: | Murrell CJ, Elkaim and Wigney JJ |
Decision: | See [22] |
Catchwords: | APPEAL – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in his assessment of the appropriate discount for the offender’s pleas of guilty and assistance to authorities – where the Crown made submissions on the appropriate range of discounts |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 35 and 36 Criminal Code 2002 (ACT) ss 338, 603 and 717 Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Zhang v R [2011] NSWCCA 233 |
Parties: | Erin Miller (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr P Bevan (Appellant) Mr J White SC (Respondent) |
| Solicitors Bevan & Co Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 31 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Robinson AJ Date of Decision: 26 June 2017 Case Title: R v Miller Citation: [2017] ACTSC 150 |
MURRELL CJ AND ELKAIM J:
We have had the benefit of reading the decision of Wigney J in draft form.
We agree with and adopt his Honour’s description and summary of the background to the appeal, the procedural history, the relevant legislation, the Crown’s submissions and the sentencing judge’s remarks.
We agree almost entirely with the consideration of the appeal by Wigney J but, regrettably, we do not agree with his ultimate conclusion. In our view, the sentencing judge fell into error in two respects:
(a)The discount for assistance in relation to the Series 1 offence (10%) was too low.
(b)The discount for the plea of guilty for the first of the Series 3 offences (20%) was also too low.
Wigney J has referred to the discount of 10% as being at “the very bottom of the ‘customary’ range of discounts”. This conclusion followed a concise review of the authorities which, in our view, indicates that while there is no fixed discount, the normal range will be significantly more than 10%, in particular where the assistance has been of considerable value.
Wigney J said that he doubted:
…that it would be correct to characterise the appellant’s assistance as assistance that was at a “very high level”, even accepting that the decision by the appellant to give evidence against Mr Stott was instrumental in securing a plea of guilty from Mr Stott.
This is the conclusion that we specifically disagree with.
In our view, assistance that leads not only to a conviction but to a person changing from a plea of ‘Not Guilty’ to a plea of ‘Guilty’ is assistance at a high level. Not only has a conviction been secured but the necessity of going through a potentially lengthy trial has been overcome.
In addition, while we agree with Wigney J’s comments regarding the inappropriateness of the Crown’s submissions on the level of the discount (as a result of the decision of the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (‘Barbaro’)), a sentencing judge, faced with such submissions, should be extremely reluctant to take an approach which is more severe than that suggested by the Crown.
Criminal proceedings are adversarial. They are defined by the Crown putting a case to a judge or jury and the defence putting an opposing case. The task of the judge or jury is to decide between the two sides. A position taken by the Crown sets a limit beyond which a sentencing judge should not travel other than in exceptional circumstances.
In simple terms, as an example, if but for Barbaro, a Crown prosecutor submitted that an appropriate sentence was five years’ imprisonment, a sentencing judge ought not sentence an offender to more than five years’ imprisonment. As explicitly stated in Barbaro at [33]:
…if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.
The same reasoning should apply to a suggested discount for assistance. In this case the Crown prosecutor submitted that the discount, including the discount for the plea of guilty, should be in the order of 30 to 40%. The sentencing judge effectively halved the suggested discount.
Although there is no specific complaint that the discount of 10% for the plea of guilty was too low, the combined discount of 20% is the subject of the appeal. In our view the Crown’s submission to the sentencing judge, whether or not it should have been made at all, was a correct analysis of the appropriate discount to be applied.
The plea of guilty was entered almost three months before the trial was due to commence. This was not a last-minute plea where the utilitarian value might be regarded as low. It was also not a plea at the earliest opportunity. We think a discount of up to 20% for the plea would have been appropriate and that this should have been combined with a discount of about 20% for the assistance provided. A combined discount is not necessarily a simple addition of the two discounts but rather an evaluative process guided by the two discounts in the overall circumstances of the case. Thus an overall discount of 35% would have reflected a correct conclusion.
The sentencing judge’s result of a discount of close to half of what it ought to have been is enough to identify error of the type described in House v The King (1936) 55 CLR 499. Further, the sentencing judge did not make any specific assessment of the level of assistance.
It is difficult therefore to know if his Honour reached his conclusion of 10% on the basis of any specific finding about the assistance. If, as is our view of the assistance, his Honour felt there had been significant assistance, then there is error in the level of the discount. If, on the other hand, his Honour was of the view that the assistance was not at a high level, then that view of itself would constitute an error.
We now turn to the complaint made by the appellant about the Series 3 offences. The appellant says the discount should have been 25%. The appellant apparently received a discount of 20% for the plea of guilty. However, Series 3 was made up of three separate sentences. On close inspection of these sentences it can be seen that the 20% discount was only applied to the first of these sentences. The other two were reduced by 25%. There can therefore be no complaint about the two sentences which were reduced from eight months to six months.
For the first of the Series 3 offences the reduction was from two years down to one year and seven months. This is an approximately 20% reduction. There is no dispute but that the plea was made at the earliest opportunity. The Court in recent judgments has stressed the importance of discounts especially where there has been a guilty plea (see R v Cranfield [2018] ACTCA 3 and Williams v The Queen [2018] ACTCA 4).
In our view, the discount in respect of the first of the Series 3 offences should have been 25%. This is not only based on the early plea but also to achieve consistency with the other Series 3 offences. Had we reached a similar conclusion to Wigney J about the Series 1 offence we may have been reluctant to suggest the exercise of any discretion restricted to the single Series 3 offence. However as we are of the view that the appellant should be resentenced in any event then, on resentencing, we will apply a 25% discount for all of the Series 3 offences.
As noted by Wigney J, there is no appeal against the length of any sentence imposed. The only complaint relates to the discounts. Applying what we think are the appropriate discounts to the sentences for the Series 1 and the first Series 3 offence, the result is as follows:
Series 1: Accessory after the fact - 18 months less 35% is 11 months and 21 days.
Series 3: Supply of a drug of dependence - 24 months less 25% is 18 months.
The next consideration to arise is how the above reductions in sentence affect the overall sentencing of the appellant. The sentence for the Series 2 offence, trafficking in a controlled drug other than cannabis, produced the longest individual sentence. This was two years and five months dating from 22 June 2017 to 21 November 2019. This sentence is not under appeal. In addition, the head sentence of three years and seven months, commencing on 22 June 2016 and ending on 21 January 2020 was suspended from 21 March 2018. This date has now passed and the appellant has been released subject to the terms of the suspension.
We consider the appropriate way to proceed is to reduce the individual sentences in accordance with the above findings and to, as far as possible, apply the same degrees of concurrency and accumulation as were applied by the sentencing Judge. Taking this approach means that it will be necessary to resentence the appellant in respect of the Series 2 offence, although its length will not be altered.
Theoretically the period before the sentence was suspended should also be reduced. However, as the period has in any event lapsed there is no practical purpose in taking that course. Accordingly, the period before suspension will not be altered although the length of the Good Behaviour Order will necessarily be reduced because it was for the balance of the period of imprisonment.
We are therefore of the view that the appeal should be allowed and the following orders made:
(a)The appeal is allowed.
(b)The orders made by Robinson AJ on 26 June 2017 are set aside and in lieu the following sentences are imposed:
(i)In respect of the offence of accessory after the fact (CC 16/3888) (‘Series 1’), the appellant is sentenced to 11 months and 21 days’ imprisonment commencing on 22 June 2016 and ending on 11 June 2017.
(ii)In respect of the offence of trafficking in a controlled drug other than cannabis (XO 17/31048) (‘Series 2’), the appellant is sentenced to 2 years and 5 months’ imprisonment commencing on 28 March 2017 and ending on 27 August 2019.
(iii)In respect of the offence of participation in the supply of a drug of dependence (CC 16/6803) (‘Series 3’), the appellant is sentenced to 1 year and 6 months’ imprisonment commencing on 28 March 2018 and ending on 27 September 2019.
(iv)In respect of the offence of take a prohibited item into a correctional facility (CC 16/6804) (‘Series 3’), the appellant is sentenced to 6 months’ imprisonment commencing on 28 March 2018 and ending on 27 September 2018.
(v)In respect of the offence of give false or misleading information to a Territory Official (CC 16/6805) (‘Series 3’), the appellant is sentenced to 6 months’ imprisonment commencing on 28 March 2018 and ending on 27 September 2018.
(vi)The head sentence is 3 years 3 months and 6 days commencing on 22 June 2016 and ending on 27 September 2019.
(vii)The sentence is suspended on 21 March 2018 conditional upon the offender signing an undertaking to comply with the obligations imposed under the core conditions of a good behaviour order as provided by s 86 of the Crimes (Sentence Administration) Act2005 (ACT). The order will expire on 27 September 2019.
| I certify that the preceding twenty-two ([1]–[22]) numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Elkaim. Associate: Date: 1 June 2018 |
WIGNEY J:
The appeal
23. This is an appeal by Ms Erin Maree Miller (the appellant) from sentences imposed on her by Robinson AJ on 26 June 2017 (the sentencing judge).
24. The sentencing judge imposed the following sentences in respect of what his Honour characterised as three discrete series of offences:
Series 1
(a)Accessory after the fact to what was colloquially called a “drive-by shooting”, contrary to s 717 of the Criminal Code 2002 (ACT) (Criminal Code): 14 months and 15 days’ imprisonment (reduced from 18 months’ imprisonment on account of the appellant’s plea of guilty and assistance to authorities) from 22 June 2016 to 6 September 2017 (maximum penalty of five years’ imprisonment and/or 500 penalty units).
Series 2
(b)Trafficking in a controlled drug other than cannabis, namely methamphetamine, contrary to s 603(7) of the Criminal Code: two years and five months’ imprisonment (reduced from three years’ imprisonment on account of the appellant’s plea of guilty) from 22 June 2017 to 21 November 2019 (maximum penalty of 10 years’ imprisonment and/or 1000 penalty units).
Series 3
(c)Participation in supply of a drug of dependence, namely methamphetamine, contrary to s 164(2)(b) of the Drugs of Dependence Act 1989 (ACT) (Drug Dependence Act): one year and seven months’ imprisonment (reduced from two years’ imprisonment on account of the appellant’s plea of guilty) from 22 June 2018 to 21 January 2020 (maximum penalty of five years’ imprisonment and/or 500 penalty units).
(d)Take prohibited item into correctional facility contrary to s 145(1) of the Corrections Management Act 2007 (ACT) (Corrections Management Act): six months’ imprisonment (reduced from eight months’ imprisonment) from 22 June 2018 to 21 December 2018 (maximum penalty of one year’s imprisonment and/or 100 penalty units)
(e)Give false or misleading information to a Territory official: contrary to s 338 of the Criminal Code: six months’ imprisonment (reduced from eight months’ imprisonment) from 22 June 2018 to 21 December 2018 (maximum penalty of one year’s imprisonment and/or 100 penalty units).
The total head sentence imposed by the sentencing judge was three years and seven months’ imprisonment from 22 June 2016 to 21 January 2020.
The sentencing judge ordered that the sentence of imprisonment be suspended from 21 March 2018 upon the offender signing an undertaking to comply with the “Offenders Good Behaviour Obligations” under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) on certain conditions, including that the appellant be of good behaviour for a period of one year and nine months to commence on 21 March 2018.
As can be seen, the combined discount given for the appellant’s plea of guilty and assistance to authorities in relation to the Series 1 offence was 20%. In his remarks on sentence, the sentencing judge noted that he had given a 10% discount for the guilty plea and a 10% discount for assistance. The discount given for the guilty plea in respect of the Series 2 offence was 20%. The sentencing judge noted that he had also imposed a 20% discount on each of the sentences for the Series 3 offences. However, it appears that the sentencing judge only applied a 20% discount to the first of the three sentences imposed in respect of the Series 3 offences. The sentences imposed for the second and third of the Series 3 offences were in fact reduced by 25% (from eight months to six months).
Pursuant to a Notice of Appeal dated 20 July 2017, the appellant appealed the sentences imposed in respect of the Series 1 and Series 3 offences. The appellant’s grounds of appeal, in summary, were as follows:
(a)In relation to the Series 1 offence, the discount of 10% for assistance and the combined discount of 20% applied by the sentencing judge in relation to the Series 1 offence was inadequate; and
(b)In relation to the Series 3 offences, the discount of 20% for the plea of guilty was insufficient as the pleas were entered at the earliest opportunity.
The appellant did not challenge the length of the terms of imprisonment before discount.
Factual background to the offences
Series 1
The appellant enlisted a close friend, Mr Stott, to assist her in relation to a dispute about a drug debt. At about 2:30am on 2 February 2017, five rounds from a .22 calibre sawn-off rifle were discharged from a car occupied by Mr Stott and other unidentified males. The shots were directed at residential premises where a woman, her two young children and two other adults were present. One of the bullets went through the lounge room window and hit one of the adults in the stomach, breaking the surface layer of the skin. The shooting was reported to police.
At 3:32am, the appellant sent Mr Stott two SMS messages warning him that police had become involved. Later that same day, the appellant arranged for the destruction of a hard drive of containing CCTV footage from her house, which had recorded evidence that would incriminate Mr Stott.
Series 2
The appellant engaged in multiple drug transactions between 31 January 2015 and 30 May 2015. In the circumstances described later, the Crown ultimately presented an indictment containing a single “rolled-up” count of trafficking in a controlled drug during that period.
During the period 31 January 2015 and 2 February 2015, police intercepted SMS messages between the appellant and a supplier, in which the supplier offered to sell ‘balls’ of methamphetamine to the appellant. After obtaining search warrants for the appellant’s residence, police located a clip seal bag containing 0.822 grams of methamphetamine in the appellant’s pocket.
The appellant continued using her existing mobile phone number, albeit with a new mobile telephone handset, to sell drugs. On 13 February 2015, a warrant issued allowing police to access stored communications between the appellant and her apparent supplier. Another search warrant was executed on 25 February 2015 for the appellant’s residence. Police located a clip seal bag with a ‘Peace and Love’ motif on it containing 1.452 grams of methamphetamine, multiple empty clip seal bags containing the same ‘Peace and Love’ motif, multiple sets of scales and a green purse containing $3,824.55 in Australian currency. Later that day, police located a Nike brand ‘bum bag’ in the lounge room of the appellant’s residence containing two clip seal bags with the ‘Peace and Love’ motif with 1.799 grams of methamphetamine inside.
At the end of May 2015, the appellant entered into an agreement with Mr Stott, who was, at the time, remanded in the Alexander Maconochie Centre (AMC), to smuggle methamphetamine, heroin and cannabis into the AMC for further sale. After organising for an ‘eight-ball’ of methamphetamine to be made available so that it could be smuggled into the AMC, the appellant arranged for an associate of hers to attend Corrections ACT and pass the drugs to a prisoner at the AMC, who would then take them into the prison. The associate attended Corrections ACT, but did not get an opportunity to pass them to the prisoner.
Series 3
At approximately 2:30pm on 25 June 2016, the appellant attended the AMC and was observed by corrections officers on CCTV passing a package containing 10.4 grams of methamphetamine to a detainee. While corrections officers were removing that detainee from the visitor’s room to search him, the appellant attempted to pass a mobile telephone to a different detainee, but the mobile telephone was seized.
Procedural history
On 7 April 2016, the appellant was arrested for the Series 1 offence, but was released on bail the same day. On 13 April 2016, the appellant was arrested for breaching bail. The appellant was again released on bail the following day.
On 25 June 2016, the appellant was arrested for the Series 3 offences. Bail was refused and the appellant was remanded in custody. On 23 August 2016, the appellant entered a plea of guilty in the Magistrates Court for the Series 3 offences. The Series 3 offences were committed for sentence to the Supreme Court.
On 28 October 2016, the appellant was committed to trial for the Series 1 offence. A trial date was set for 29 May 2017.
On 1 March 2017, an indictment dated 28 February 2017 containing the Series 1 and Series 2 offence was filed in the Supreme Court. In his remarks on sentence, the sentencing judge described the Series 2 count as an “ex-officio count which ‘rolled-up’ a number of charges pending before the ACT Magistrates Court”. On the same day, the appellant was arraigned in the Supreme Court and pleaded guilty to the Series 1 and Series 2 offence. It is readily apparent that there had been some sort of plea or charge bargain between the Crown and the appellant. It is common ground that, in the context of the appellant’s guilty plea in respect of the Series 1 offence, she indicated that she would give evidence for the Crown against her co-accused, Mr Stott.
The sentence proceedings were heard by the sentencing judge on 3 May 2017. On 26 June 2017, the sentences were handed down. As outlined earlier, the sentencing judge sentenced the appellant to a total sentence of three years and seven months’ imprisonment, commencing on 22 June 2018 and ending on 21 January 2020, but suspended from 21 March 2018.
The appellant filed her Notice of Appeal on 20 July 2017.
Relevant legislation
The Sentencing Act contains detailed provisions concerning the discounting of sentences for guilty pleas and the provision of assistance to authorities.
Section 35 of the Sentencing Act relevantly provides:
1.The section applies if –
(a) an offender pleads guilty to an offence; and
(b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
2.In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a) the fact that the offender pleaded guilty;
(b) when the offender pleaded guilty, or indicated an intention to plead guilty;
(c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d) the seriousness of the offence;
(e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
Note For who may make a victim impact statement, see s 49
3.The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
4.However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
5.For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
6.A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
Section 36 of the Sentencing Act provides:
1.This section applies if –
(a) an offender is convicted or found guilty of an offence; and
(b) the offender assisted, or undertook to assist, law enforcement authorities in –
i. preventing, detecting or investigating the offence or any other offence; or
ii. a proceeding in relation to the offence or any other offence.
2.A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.
Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137).
3.In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:
(a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
Note For who may make a victim impact statement, see s 49
(b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender
(d) the nature and extent of the offender’s assistance or promised assistance;
(e) the timeliness of the assistance or undertaking to assist;
(f) any benefits the offender has gained or may gain because of the assistance or undertaking to assist;
(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;
(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;
(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;
(j) if the offender is to serve a sentence of imprisonment – the likelihood that the offender will commit further offences after release from imprisonment.
4.A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
The Crown’s submissions concerning the appropriate discounts
The Crown made very specific submissions to the sentencing judge in respect of the appropriate discounts for the appellant’s pleas of guilty and assistance. For reasons that will become apparent, it is necessary to set those submissions out in full.
In relation to the appropriate discount for the plea and assistance to authorities in respect of the Series 1 offence, the Crown addressed the usefulness and timeliness of the appellant’s assistance and made a number of concessions, in the following terms:
So subsection (3) of section 36 is really the gravamen of the provision and what your Honour has to consider. With respect to 33(3)(b) where it talks about the usefulness, I would certainly have to concede that it has been quite useful in that it’s certainly my position based on discussions with Mr Stott’s representatives that but for the offender’s offer of assistance, which was promptly conveyed to Mr Stott’s defence, he would not have agreed to plead guilty. So certainly her undertaking to assist was instrumental in securing his plea. That will have to be accepted.
With respect to paragraph (e) – the timeliness of the assistance, it certainly was useful at the time it came but it wasn’t given at the earliest opportunity. In my submission, in order to attract maximum discount available for assistance, the offender would have had to have made the offer or provide the assistance at an early opportunity. She didn’t here – and that assistance would have had to have been as wholesome as possible. Now, whilst her undertaking was useful, she never gave an account or a version to police – which ultimately is the most useful productive thing she could have done.
So for example, in Mr [name redacted] matter he provided police with a full interview where he laid out there the conduct of all his co-offenders and he did that at an earlier stage in the proceedings. So whilst I certainly accept that it was very useful what she did, it was relatively late in the piece and it wasn’t the most comprehensive type of assistance that could be proffered.
It would be my submission to your Honour that when your Honour has regard to the timing of the pleas with this, your Honour would be looking at a discount somewhere in the vicinity of 30 to 40 per cent. To get that 50 per cent you would have been all pleas in the Magistrates Court and timely assistance from earlier in the piece than did happen here. But nonetheless it was quite valuable. So I’d submit 30-40 per cent in that respect.
It would appear that the submission that the discount should be 30 to 40% related to the combined discount for the guilty plea and assistance in respect of the Series 1 offence.
In relation to the appropriate discount for the pleas of guilty on the Series 3 offences, the Crown submitted as follows:
With respect to series 3, that should be 25% because that was a plea at a very early opportunity in the Magistrates Court.
More will be said about the Crown’s submissions to the sentencing judge in the context of the arguments advanced by the appellant. Suffice it to say, at this stage, that they were not appropriate.
The sentencing judge’s remarks on sentence
Given the very narrow nature of the appellant’s appeal grounds, it is unnecessary to rehearse much of what the sentencing judge said concerning the objective seriousness of the offences or the appellant’s subjective circumstances. Nor is it necessary to repeat what was said concerning the Series 2 offence.
In relation to the Series 1 offence, the sentencing judge noted that the appellant pleaded guilty in the Supreme Court on 1 March 2017. The appellant’s trial had been listed to commence on 29 May 2017. His Honour fixed a discount of 10% for that plea of guilty.
In relation to the Series 3 offences, the sentencing judge noted that the appellant pleaded guilty in the Magistrates Court on 23 August 2016 and that the offences were then committed for sentence to the Supreme Court. As already noted, although his Honour indicated that a discount of 20% had been fixed for the pleas of guilty in respect of all three Series 3 offences, it was only the first of the three sentences imposed that was reduced by 20%. The sentences imposed for the second and third of the Series 3 offences were reduced by 25%.
His Honour said, in respect of all the pleas of guilty, that:
[a]lthough the Crown case was very strong, there was utility in all pleas and the second and third Series pleas were made in a timely manner.
In respect of assistance, the sentencing judge noted that, when the appellant was arraigned on 1 March 2017, her legal representative conveyed to the Crown that the appellant would give evidence for the Crown against her co-accused, Mr Stott, at his trial. That was communicated to Mr Stott’s legal representative and “as a result, Mr Stott … indicated his intention to plead guilty to the offences charged against him”. The sentencing judge also observed that the Crown accepted that the appellant’s “agreement to co-operate [had] been instrumental in encouraging Mr Stott to plead guilty and [had] utility”.
The sentencing judge stated that he had taken into account the matters in s 36(3) of the Sentencing Act and, in particular, s 36(3)(b), (d) and (e). Those matters are, respectively: the “significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided”; the “nature and extent of the offender’s assistance or promised assistance”; and “the timeliness of the assistance or undertaking to assist”. His Honour allowed an “additional discount to the sentence otherwise to be imposed upon the Series 1 offence of approximately 10%”.
It should perhaps be noted that the sentencing judge did not directly explain, in his remarks on sentence, why he apparently did not accept the Crown’s submissions in relation to the appropriate discounts, or at least why he fixed discounts lower than those proposed by the Crown.
Consideration
There are essentially three issues to be determined having regard to the appellant’s grounds of appeal: first, whether the sentencing judge erred in fixing the discount for assistance, or the combined discount for assistance and the guilty plea in relation to the Series 1 offence; second, whether the sentencing judge erred in fixing the discount for the guilty plea in relation to the Series 3 offences; and third, if it is found that the sentencing judge did err in respect of fixing one or both of the discounts, whether the Court can nevertheless decline to intervene if it is not satisfied that a different sentence should be imposed.
The discount for assistance and the guilty plea in respect of the Series 1 offence
The applicable principles in relation to fixing a discount on a sentence for assistance to authorities have been considered in numerous decisions of the Court of Criminal Appeal of the Supreme Court of New South Wales. While many of the principles and relevant considerations are now effectively codified in s 36 of the Sentencing Act, it is worthwhile referring to what the authorities have said about the fixing of the discount. That is particularly so because the cases that refer to the “general range” of the discount must be considered in light of the principles established in those authorities.
Matters which may be relevant to an assessment of the degree to which an offender has provided cooperation to law enforcement agencies include: the effectiveness of the cooperation and its practical value to law enforcement agencies (Ma v R [2010] NSWCCA 320 at [28]; Zhang v R [2011] NSWCCA 233 at [33]; R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at [53] (‘Sukkar’); R v El Hani [2004] NSWCCA 162 (‘El Hani’) at [73]; R v Barrientos [1999] NSWCCA 1 at [47]; R v Gallagher (1991) 23 NSWLR 220 (‘Gallagher’) at 232-233); the extent to which the offender has disclosed everything of relevance and not tailored the disclosure to material already known (Wang v R [2010] NSWCCA 319 at [36]; R v Cartwright (1989) 17 NSWLR 243 at 252-255); the extent to which the cooperation relates to offences which are otherwise difficult to detect and investigate (Hartman v Director of Public Prosecutions (Cth) [2011] NSWCCA 261 at [96]); the extent to which the cooperation disclosed the offender’s guilt in respect of other offences (R v Ellis (1986) 6 NSWLR 603 at 604; Ryan v The Queen [2001] HCA 21; 206 CLR 267); and whether the offender’s cooperation caused others to cooperate (Lin v The Queen; Ng v The Queen [2016] NSWCCA 200 at [10]).
While the authorities concerning cooperation in the sentencing context routinely refer to a “discount” for cooperation, there is no obligation for the sentencing court to separately quantify a discount for cooperation. Indeed, it may be impossible or inappropriate to specify a separate discount where cooperation forms part of a complex of interrelated considerations relating to the plea of guilty, contrition and rehabilitation: Gallagher at 227-228; El-Hani at [68].
The authorities are also replete with statements about the usual or “customary” range, which is typically said to be between 20 and 50%: see, for example, R v M [2005] NSWCCA 224 at [21]-[22]; Sukkar at [3], [5], [50], [54], [56]; Pang v The Queen [1999] NSWCCA 4; 105 A Crim R 474 (‘Pang’) at [13]. It has been said that a discount exceeding 50% should be reserved for an exceptional case: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3], [53].
In this jurisdiction, in R v Ngata [2015] ACTSC 356 Refshauge J said (at [58]):
The discount given is often combined with a discount for a plea of guilty. In New South Wales, discounts of between 25 per cent and 50 per cent have been given. A discount in excess of 50 per cent is a truly exceptional discount, as pointed out by Bell J, with whom Sully and Hoeben JJ agreed, in T v R [2007] NSWCCA 62 at [23]. Where there is no risk in a prison environment, it has been suggested that a discount in excess of 40 per cent is not appropriate. See R v Sukkar [2006] NSWCCA 92 at [4]. In this Court, Murrell CJ in R v Hodge [2015] ACTSC 214 gave a discount of 40 per cent.
The critical point to note, however, is that while the authorities refer to a customary range of potential discounts, there is no fixed tariff or range for a discount for cooperation: Pang at [13].
Nor should a sentencing judge necessarily take a mathematical or multi-tiered approach to the fixing of a sentence where the offender has cooperated with the authorities: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 373-375; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37]. The determination of whether a lesser sentence should be imposed because the offender cooperated with the authorities and, if so, the amount of any discount, is ultimately a discretionary decision which forms part of a complex of interrelated considerations.
Because the determination of the level of any discount for cooperation is discretionary, an appellant who challenges a sentence on the basis of the level of the discount must establish that the sentencing judge acted upon a wrong principle, or took into account irrelevant considerations, or failed to take into account irrelevant considerations, or that the reduction or discount was “unreasonable or plainly unjust”: House v The King (1936) 55 CLR 499 (‘House’) at 505.
The appellant did not articulate exactly how it was contended that the sentencing judge erred in fixing the discount. There was no suggestion that the sentencing judge failed to take into account a relevant consideration, or took into account an irrelevant consideration, or acted on any wrong principle. The appellant’s submission was simply that “[p]roper quantification of the value of the assistance would have resulted in a discount of 30%, and a combined discount of 40%, on the sentence imposed”. That submission was apparently premised on the contention that the value of the assistance provided was “at a very high level”. The basis of that contention, and why it necessarily compelled a discount of 30%, was not explained or developed at all in the appellant’s submissions. The appellant did not complain about the discount of 10% that the primary judge fixed in relation to the plea of guilty.
The difficulty for the appellant is that the evidence that was before the sentencing judge in relation to the appellant’s assistance was almost non-existent. The only thing that was put to the sentencing judge in relation to the “level” of assistance was a submission or concession by the Crown that the appellant had agreed to give evidence for the Crown against Mr Stott and that that was “instrumental in securing [Mr Stott’s] plea”. It does not necessarily follow from that submission or concession that the appellant’s assistance was “at a very high level”, whatever that may mean, particularly when the nature and degree of assistance offered by the appellant is compared with the sort of assistance considered by the authorities referred to earlier. It is clear, for example, that the assistance was not provided at an early stage. The appellant did not provide a statement to the police, or agree to participate in an interview for the purpose of outlining what her evidence would be. The agreement to provide assistance appears also to have been given at a stage and in circumstances where it was unlikely that the appellant would ever have to in fact give evidence against Mr Stott. There was also no suggestion that, in agreeing to assist, the appellant was putting her life in danger, or would have to serve any sentence of imprisonment in protection or in conditions that were harsher or more onerous than would otherwise be the case.
Nor, it might be added, was the sentencing judge obliged to accept the Crown’s submission concerning the appropriate discount for the assistance. Indeed, for the reasons given by the High Court in Barbaro, it is generally inappropriate for the Crown to quantify or express an opinion about the appropriate discount range. The Crown’s submissions, rather, should have been directed to the relevant principles.
There could be little doubt that the discount of 10% fixed by the sentencing judge in respect of the appellant’s cooperation was low, and was at the very bottom of the “customary” range of discounts. The same can be said concerning the “combined” discount of 20%. There is, however, nothing to suggest that the sentencing judge was not aware of the customary range, nor is there anything to suggest that the sentencing judge did not consider that the assistance provided by the appellant, in all the circumstances, did not warrant any greater discount.
While the discount of 10% for assistance and the combined discount of 20% were relatively low, and the sentencing judge’s reasons for imposing the discount are very sparse indeed, I am nevertheless not persuaded that the discount that was given was unreasonable or unjust, or manifests some error of principle on the part of the sentencing judge. I doubt that it would be correct to characterise the appellant’s assistance as assistance that was at a “very high level”, even accepting that the decision by the appellant to give evidence against Mr Stott was instrumental in securing a plea of guilty from Mr Stott. There is nothing to suggest that the discount of 10% given for the plea of guilty was unreasonable or unjust.
I am also not persuaded that the sentence imposed by the sentencing judge in respect of the Series 1 offence was manifestly excessive by reason of the discount, or for any other reason. For the reasons expanded on later, even if there was some error on the part of the sentencing judge in fixing the discount for assistance in respect of the Series 1 offence, I am not persuaded that a different sentence should be imposed.
The discount for the plea of guilty in respect of the Series 3 offences
This Court has generally adopted the approach taken in New South Wales, as reflected in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, in respect of the appropriate discount for a plea of guilty: Monfries v The Queen [2014] ACTCA 46; R v Toumo’ua [2017] ACTCA 9 (‘Toumo’ua’). That approach recognises that the appropriate range for a discount is 10 to 25%, and that there are two considerations or circumstances which will generally affect the utilitarian benefit of the plea and, therefore, the appropriate level of discount: first, the time at which a plea is entered; and second, the complexity of issues about which evidence would otherwise have to be gathered. The primary consideration is the timing of the plea, though what is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination of the sentencing judge.
It was, however, recognised in Toumo’ua that there are specific differences between the sentencing regimes in the Australian Capital Territory and New South Wales. Section 35 of the Sentencing Act is far more prescriptive than its New South Wales counterpart. Whereas the relevant New South Wales provision requires the court to have regard to the fact and timing of the plea, and the circumstances in which it occurred, s 35 of the Sentencing Act requires the Court to also have regard to considerations such as the seriousness of the offence, whether the guilty plea was related to negotiations between the prosecution and defence about the charges, and the effect of the offence on the victims and their families. Importantly, s 35(4) of the Sentencing Act also requires the Court to have regard to the strength of the prosecution case, at least where the Court considers that the prosecution case is “overwhelmingly strong”. The Court in Toumo’ua said the following about s 35(4) of the Sentencing Act (at [67]-[71]):
In NSW, the strength of the prosecution case is not taken into account when determining the sentencing discount, and is only relevant to contrition and remorse: R v Sutton [2004] NSWCCA 225 at [12]. In Thomson, the Court decided that, while the strength of the prosecution case had no bearing on the utilitarian value of the plea of guilty and the associated discount, where a plea of guilty amounted to a “recognition of the inevitable” because it was entered in the face of an overwhelming prosecution case, then this consideration strongly informed whether contrition was genuine: at [137]–[139].
In this jurisdiction, demonstrated remorse is a relevant and discrete sentencing consideration to be taken into account under s 33(1)(w) of the Sentencing Act. Presumably, the strength of the prosecution case may inform the issue of remorse.
But in contradistinction to the position in New South Wales, in this jurisdiction the sentencing court is precluded, pursuant to s 35(4) of the Sentencing Act, from allowing a “significant reduction” for a plea of guilty if the prosecution case is “overwhelmingly strong”.
The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4). In Coggan v R [2013] ACTCA 49 at [20], the Court explained that even an overwhelming prosecution case required an enormous amount of work and it was not unknown for an apparently overwhelming prosecution case to fail.
In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said:
Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.
The effect of the appellant’s submissions in support of this ground of appeal was that, because the plea of guilty in respect of the Series 3 offences was entered in the Magistrates Court, the sentencing judge was bound to give a discount of 25%, as opposed to 20%. While the appellant accepted that there was no tariff in respect of the discount for a plea of guilty, the effect of her submission was that there was such a tariff. It should also be reiterated that the sentencing judge did, in fact, give a discount of 25% on the sentences imposed in respect of the second and third of the three Series 3 offences. The appellant’s complaint can be taken, therefore, to relate only to the sentence for the first of those three offences, where a discount of approximately 20% was imposed. The appellant also submitted that there was a “clear error” because the sentencing judge allowed the same discount of 20% for the Series 2 offence, in respect of which a plea was entered in the Supreme Court after a not guilty plea had been entered in the Magistrates Court. That submission, however, ignored the fact that the sentencing judge treated the plea in respect of the Series 2 offence as if it had been entered in the Magistrates Court. That was no doubt because it was the product of negotiations that led the Crown to present an indictment with a single “rolled-up” count.
It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding.
Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations.
Although the sentencing judge’s reasons for fixing a discount of 20% for the Series 3 offences were sparse, it is readily apparent that he accepted that there was “utility” in the pleas and that they were made in a “timely manner”. Equally, however, his Honour had regard to the fact that the Crown case was “very strong”. There is nothing to suggest that the sentencing judge had regard to any irrelevant considerations, or failed to have regard to any relevant considerations, or acted on any incorrect principle. The appellant did not submit otherwise. It could scarcely be submitted that the discount given was “unreasonable or plainly unjust” (see House at 505) given that it was implicitly accepted by the appellant that a discount of just 5% more would have been reasonable.
In all the circumstances, I am not persuaded that the appellant has demonstrated error on the part of the sentencing judge in fixing a discount for the guilty plea in respect of the first of the Series 3 offences of 20%, rather than 25%. In all the circumstances, the discount that was fixed was within the range of discounts open to the sentencing judge to fix in respect of the appellant’s guilty plea.
It should also be noted, as it was in respect of the alleged error in respect of the Series 1 offence, that it was quite inappropriate for the Crown to have submitted that a specific discount should have been fixed by the sentencing judge. In any event, it is clear that the sentencing judge was not bound by that submission, a point that would (or at least should) undoubtedly have been recognised by the appellant, or at least her counsel. There was accordingly no unfairness to the appellant arising from the fact that the sentencing judge plainly did not accept the Crown’s submission in relation to the discount.
Resentencing
For the reasons that have already been given, I am not persuaded that the appellant has demonstrated any specific error on the part of the sentencing judge.
If, however, the sentencing judge did make a specific error or errors in fixing the discounts, it does not, in any event, follow that the Court must intervene and resentence the appellant.
The appellant proceeded on the basis that if the Court found error in the fixing of the discounts, it would necessarily resentence her. Indeed, the appellant appeared to effectively proceed on the basis that the Court would simply adjust the sentences by applying a combined discount of 40% in respect of the Series 1 offence and a discount of 25% for the plea of guilty in respect of the Series 3 offences. The appellant did not advance any other meaningful submissions about how the Court would go about exercising the sentencing discretion afresh.
Section 37O(7) of the Supreme Court Act 1933 (ACT) provides that in an appeal against sentence, the Court has the power to increase or decrease the sentence, or to substitute a different sentence. It does not, however, provide that the Court is bound to exercise that power if the sentencing judge made a specific error.
The position at general law is that, in cases that do not involve manifest excess, if an appellate court identifies a specific error, the sentence imposed below must be set aside and the appellant court is then required to exercise the sentencing discretion afresh unless “in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed”: AB v The Queen [1999] HCA 46; 198 CLR 111 at [130]; see also Kentwell v The Queen [2012] HCA 37; 252 CLR 601 at [35]; Gillard v The Queen [2016] ACTCA 50 at [43].
Had the sentencing judge made a specific error in fixing the discounts, I would not in any event have proceeded to resentence the appellant. That is because I have concluded that, even if such a specific error or errors had been made, no different sentence should be passed. I should also make it abundantly clear that, had I been persuaded that the sentencing judge had made an error in fixing the discounts, and had I been persuaded that a different sentence should be passed, I would not have simply applied the discounts put forward by the appellant. That would not only have been contrary to principle, but would have been contrary to the “strong resistance that exists against appellate ‘tinkering’ with sentences”. Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] (per Kirby J).
In my view, having regard to all the objective and subjective circumstances referred to by the sentencing judge, the sentences imposed by the sentencing judge were appropriate. Indeed, in my view the sentences that were imposed were, if anything, quite lenient, particularly having regard to the order made by the sentencing judge to suspend the sentence of imprisonment from 21 March 2018.
The appellant made no, or no meaningful, submissions in support of the proposition that some lesser sentence should be imposed. The extent of the submissions advanced by the appellant was that there were “powerful subjective circumstances”, which were identified as being that the appellant had a drug dependency which had led her into a “life of crime”, but that she had seen the “path of redemption” and intended to “put the life of crime behind her”.
It is clear from the sentencing judge’s remarks on sentence that his Honour was impressed by aspects of the appellant’s evidence concerning her acknowledgment of her wrongdoing and her desire to “make amends”. His Honour no doubt took that into account in arriving at the sentences he imposed. In my opinion, the subjective features identified by the appellant, and apparently accepted by the sentencing judge, do not compel a conclusion that some different or lesser sentence should be passed.
Conclusion and disposition
The appeal should be dismissed.
| I certify that the preceding sixty-eight ([23]–[90]) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney. Associate: Date: 1 June 2018 |
13
28
5