Court of Criminal Appeal
New South Wales
Case Title: Morton v R Medium Neutral Citation: [2014] NSWCCA 8 Hearing Date(s): 13/02/2014 Decision Date: 20 February 2014 Before: Hoeben CJ at CL at [1]
Schmidt J at [55]
Barr AJ at [56]Decision: Leave to appeal against sentence granted but appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - offence of knowingly take part in the supply of a prohibited drug (cocaine) - whether error in the assessment of the discount for the plea of guilty - principles to be applied when assessing the utilitarian value of a plea of guilty - whether applicant bound by concessions made by counsel in sentence proceedings - parity - difference in roles of offenders - no basis for a justifiable sense of grievance - whether sentence manifestly excessive. Legislation Cited: Criminal Procedure Act 1986 - s166
Drug Misuse and Trafficking Act 1985 - s25(1)Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Loader v R; Dunn v R [2013] NSWCCA 215
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v AB [2011] NSWCCA 229
R v Cardoso [2003] NSWCCA 15
R v Robert Borkowski [2009] NSWCCA 102;195 A Crim R 1
R v Stambolis [2006] NSWCCA 56
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Tatana v R [2006] NSWCCA 398
Wong v R [2001] HCA 64; 207 CLR 584
Zreika v R [2012] NSWCCA 44Category: Principal judgment Parties: Ross Leslie Morton - Applicant
Regina - Respondent CrownRepresentation - Counsel: Counsel:
Mr H White - Applicant
Ms S Herbert - Respondent Crown- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent CrownFile Number(s): 2010/265321 Decision Under Appeal - Before: English DCJ - Date of Decision: 10 December 2012 - Court File Number(s): 2010/265321
JUDGMENT
HOEBEN CJ at CL:
Offence and sentence
On 4 June 2012 the applicant pleaded guilty to one count that between 20 - 26 June 2010 he did knowingly take part in the supply of a prohibited drug, namely cocaine, contrary to the provisions of s25(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for which is imprisonment for 15 years.A further charge of knowingly take part in the supply of a prohibited drug (cocaine) was taken into account on a Form 1 and a related driving offence was dealt with pursuant to a certificate under s166 Criminal Procedure Act 1986.
On 10 December 2012 the applicant was sentenced by English DCJ to imprisonment with a non-parole period of 2 years, commencing 6 December 2012 and expiring 5 December 2014, with a balance of term of 2 years expiring 5 December 2016.
By Notice of Appeal dated 29 October 2013 the applicant seeks leave to appeal against that sentence on the following grounds:
Ground 1 - The sentencing judge erred in the assessment of…
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CaseChat Overview and Summary
The Court of Criminal Appeal found that the appellant's submission was based on an incorrect understanding of the principles outlined in R v Thomson; R v Houlton. The Court held that the appellant was not entitled to a discount of 25% for his plea of guilty as there was no utilitarian value in his delay in pleading guilty. The Court found that the appellant withheld his plea of guilty in order to achieve a favourable outcome from the Crown in respect of some other charge, and that this circumstance did not provide a basis for asserting that the plea was made at the first reasonable opportunity. The Court also noted that the appellant was not prepared to plead guilty until the Crown determined that the escape could be dealt with on a Form 1.
The Court held that the principles for determining the discount for a plea of guilty were often overlooked, and that the rationale for a discount as high as 25% did not exist in this case. The Court found that the appellant was not entitled to any particular discount even if the plea of guilty was at the first reasonable opportunity. The Court held that the Crown's representative had conceded that which was not true, and that the appellant was not entitled to the benefit of a discount for his plea of guilty.
In conclusion, the Court of Criminal Appeal dismissed the appellant's appeal against sentence. The Court found that the sentence was not manifestly excessive and that there was no error in the assessment of the discount for the plea of guilty. The Court held that the appellant was not entitled to a discount for his plea of guilty as there was no utilitarian value in his delay in pleading guilty.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
The applicant submitted that the matter being listed for trial in the District Court was due solely to the conduct of the Crown.Consideration The applicant's submission should not be upheld. It is based on an incorrect understanding of R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. This is clear from the analysis of Howie J (with whom Hoeben J agreed) in R v Stambolis [2006] NSWCCA 56 where his Honour said:"8 The Judge imposed the sentences on the basis that the plea of guilty was made at the first reasonable opportunity and gave the applicant the benefit of a discount of 25 per cent although his Honour found that they were "a little late (understandably)". The Crown did not oppose this finding and on the hearing of the appeal the Crown conceded that it could not assert otherwise in this Court. However, on the available material it appears that the finding by the Judge was erroneous as a matter of principle. I should point out that full argument was not heard on this issue because the Crown did not rely upon this matter as a ground of appeal and counsel for the respondent was obviously not given the opportunity to argue it. However, it is a good example of a common misconception about the discount for a plea of guilty. Although the principles are well established, they are often overlooked.9 The applicant was arrested shortly after he committed each of the two sets of offences for which he was to be sentenced. In both cases he made full admissions to the police. Yet the applicant did not plead guilty in the Local Court but was committed for trial. He did not plead guilty until 24 May 2005, almost eight months after his arrest for the second offence.10 Apparently the explanation for this delay was that the Crown was considering its attitude to the offence of escape. The Crown had originally found a bill for that offence and the indictment presented against the applicant contained a count for an offence of escape lawful custody. It seems that the applicant was not prepared to plead guilty to any offence charged against him until the Crown determined that the escape could be dealt with on a Form 1. There was a letter from a Crown Prosecutor placed in evidence before the Judge indicating what facts would be alleged to support the charge and that the count of escape would be removed from the indictment and placed on a Form 1. This letter was dated 20 May 2005. The respondent pleaded guilty to the remaining offences on the indictment four days later.11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.12 I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused's plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. But in R v Harmouche [2005] NSWCCA 398 Hulme J, with whom Sully J and Latham J agreed, wrote:[38] Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody. [39] That said, the 25% discount for the Respondent's plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage. [40] That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:- "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability."[41] I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review - where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.13 In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. I cannot understand why the Crown's representative would concede that which was not true, a concession that is often made apparently as part of an agreement with the defence. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until May 2005."