(1) Leave to file an appeal out of time granted; (2) Leave to appeal granted; (3) Appeal dismissed.
CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error in Court taking account strength Crown case in fixing discount for plea - standard non parole period - whether Court should intervene - whether more lenient sentence warranted.
1 WOOD CJ at CL: I have read in draft the reasons of Justice Kirby. I agree with those reasons and with the orders proposed.
2 In so far as it was argued that s54B of the Crimes (Sentencing Procedure) Act has no application to a case in which there was a plea and that the decision in Regina v Mouloudi[2004] NSWCCA 96 provides support for that proposition, then I wish to express my disagreement with it.
3 It may be noted that the manner in which s54B was to be applied was the subject of consideration in Regina v Way[2004] NSWCCA 131. Specifically in relation to sentences imposed after plea, the Court observed:
“68 Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial . This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor.
69 If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period . It would, in any event, be contrary to long-standing sentencing practice, save…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Davies [2004] NSWCCA 319
Case
[2004] NSWCCA 319
Decision Date
CaseChat Overview and Summary
The appeal against sentence involved a respondent, Davies, who had been found guilty of certain criminal charges. The primary issue before the court was whether the trial judge had erred in considering the strength of the prosecution's case when determining the discount for a plea of guilty. Additionally, the court was tasked with assessing whether the sentence imposed was appropriate, specifically in light of the standard non-parole period.
The court examined whether the trial judge had incorrectly taken into account the strength of the Crown's case when calculating the discount for a plea of guilty. The court considered whether this constituted an error of law that warranted intervention. Furthermore, the court was required to determine whether the sentence imposed was excessively lenient and whether it should be altered in light of the legal principles governing sentencing and the standard non-parole periods applicable to the offences committed.
In ruling, the court found that the trial judge had indeed erred by considering the strength of the prosecution's case in calculating the discount for the plea of guilty. This constituted an error of law, and the court held that it should intervene to correct this mistake. The court concluded that, after accounting for the appropriate discount, the sentence imposed was still within the correct parameters and did not warrant any alteration. The court ultimately affirmed the sentence handed down by the trial judge, finding no basis for a more lenient sentence.