R v Denney - [2001] NSWCCA 281

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Denney [2001] NSWCCA 281

FILE NUMBER(S):
60701/00

HEARING DATE(S): 6 July 2001

JUDGMENT DATE: 24/07/2001

PARTIES:
Regina v William George Denny

JUDGMENT OF: Studdert J McClellan J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0301

LOWER COURT JUDICIAL OFFICER: McGuire DCJ

COUNSEL:
D.M. Woodburne (Crown)
C.B. Craigie (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)
G. Sten & Co. (Applicant)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60701/00

STUDDERT J
McCLELLAN J
Tuesday 24 July 2001

REGINA v WILLIAM GEORGE DENNEY

JUDGMENT

STUDDERT J: William George Denney seeks leave to appeal against sentences imposed upon him by his Honour Judge McGuire in the District Court at Gosford on 26 October 2000. On that date the applicant maintained pleas of guilty first entered in the Local Court in respect of a number of offences:
(i)an offence of break enter and steal committed between 3 and 5 March 2000;
(ii) an offence of receiving committed on 16 March 2000;
(iii) an offence of break enter and steal committed on 2 April 2000.
When sentencing the applicant for the first of the above offences, his Honour was asked to take into account three scheduled matters:
(a)     larceny committed on 1 March 2000;
(b)     goods in custody committed on 27 February 2000;
(c)     goods in custody committed on 20 March 2000.
In respect of the first count, and taking into account the scheduled offences, his Honour sentenced the applicant to a term of imprisonment of four years eight months. His Honour set a non parole period of three years six months. In respect of the second break enter and steal offence charged as a principle offence (count 3), his Honour sentenced the applicant to a fixed term of three years imprisonment. In respect of the receiving offence (count 2), his Honour sentenced the applicant to a fixed term of two years imprisonment. All three sentences imposed were directed to be served concurrently and to commence on 2 April 2000 which was the date upon which the applicant was arrested and subsequent to which he remained in custody until sentenced.
Before addressing the various grounds upon which Mr Craigie has submitted this Court should intervene, it is necessary to consider the objective features of the offences.
Count 1:The offence of break enter and steal committed between 3 and 5 March 2000
At a time between 5.30 pm on 3 March and 11.00 am on 5 March the applicant entered what were then unattended premises, being a residence at Gosford. Entry was gained through a side window that was smashed. Property stolen included ladies’ jewellery, watches, a ghetto blaster and other electronic equipment. The estimated value of the property stolen was $5000. Fingerprint officers who attended the scene found the applicant’s fingerprints on broken glass from a downstairs storeroom window.
The scheduled offences
(i) Larceny: On 1 March 2000 the applicant stole number plates from a…

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.

Continue reading R v Denney

Details

AGLC: R v Denney [2001] NSWCCA 281
Case: [2001] NSWCCA 281
Decision Date: 24 July 2001

CaseChat Overview and Summary

In the matter of R v Denney, the defendant faced sentencing for charges related to break and enter and stealing. The case was heard and determined in the New South Wales Court of Criminal Appeal. The defendant had entered pleas of guilty, but the issue at hand was whether the sentencing judge had appropriately taken into account the utilitarian aspects of these pleas, which traditionally warrant a discount in sentencing.

The central legal issue was whether the sentencing judge had failed to provide an appropriate discount for the defendant's early guilty plea, despite the strength of the evidence against him. The Crown argued that the sentencing judge had indeed considered the utilitarian value of the plea, referencing specific remarks in the sentencing remarks. The defence, however, contended that the discount given was insufficient and did not adequately reflect the benefits of the early plea.

The Court of Appeal held that the sentencing judge's approach was flawed. The judge should have allowed a discount for the utilitarian aspects of the plea, regardless of the strength of the evidence. The Court emphasized that the timing of the plea and the complexity of the evidence were key factors in determining the appropriate level of discount. The Court referred to previous cases, R v Carter and R v Parkinson, which highlighted the importance of considering these factors when assessing the discount for a guilty plea. The Court of Appeal found that the sentencing judge had not adequately accounted for these aspects, and thus, the sentence needed to be reconsidered.

The Court ordered a re-sentencing of the defendant, with appropriate consideration given to the utilitarian aspects of his guilty plea.

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

STUDDERT J

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Ratio Decidendi

Legal Principle Established

Established by: STUDDERT J

His Honour did say early in the sentencing remarks:“The prisoner will receive minimal consideration for the fact that he has entered pleas of guilty, having regard to the fact that he was virtually apprehended in the act in relation to the break and enter on 2 April. In relation to the break and enter on 3 March, his fingerprints were found on the premises the subject of the break and enter. As to the receiving, he pawned a Rolex watch which was engraved ‘To Stephen, Happy 21st, Love Mum and Dad’.”(Emphasis added) It is correct, as his Honour remarked, that the Crown case was powerful, having regard to the fact that the applicant was virtually caught in the act for the later of the break enter and steal offences and having regard to the fingerprints found at the premises the subject of the earlier of the break enter and steal matters. Nevertheless, the applicant was entitled to appropriate consideration for the utilitarian aspects of the plea. Mr Craigie has submitted that the judge erred in not giving the applicant such consideration. There was a need for the sentencing judge to allow an appropriate discount for the guilty plea, whether the Crown case was a strong one or not. The utility value of the plea required this, and in assessing the discount it was relevant to have regard to: (a) the timing of the plea;(b)the complexity of the evidence, the need to gather which was avoided by the plea. Two recent decisions of this court emphasise this: see R v Carter [2001] NSWCCA 245 and R v Parkinson [2001] NSWCCA 244. In Carter, Howie J said in point:“It is perfectly clear from the reasons of the Chief Justice in the guideline judgment [referring to R v Thomson & Houlton (2000) NSWLR 383], with whom all other members of the Court agree, that, although the evaluation of the discount is a matter for the discretion of the sentencing judge, that (sic) are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may, according to the Chief Justice, exceed the normal upper range of 25 per cent.” Did the sentencing judge fail to give an appropriate discount for the utilitarian aspect of the plea? The Crown has submitted that when one looks at the remarks on sentence, the judge expressly referred to the utilitarian aspects in the paragraph of his remarks immediately following those which I have cited in para 25 above:“I appreciate that he has saved the community the cost of a trial and the victims the ordeal of having to attend court and relive their experience.”