R v Newman - [2004] NSWCCA 113

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Newman [2004] NSWCCA 113

FILE NUMBER(S):
60537/03

HEARING DATE(S): 19/4/04

JUDGMENT DATE: 23/04/2004

PARTIES:
Regina
Craig John Newman

JUDGMENT OF: Wood CJ at CL Simpson J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0471

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
E Wilkins
T Golding

SOLICITORS:
S Kavanagh (Crown)
S E O'Connor

CATCHWORDS:
CRIMINAL LAW - appeal against severity of sentence - break enter and steal - whether sufficient weight given to utilitarian value of pleas of guilty.

LEGISLATION CITED:
Crimes Act 1900 - s 112(1)
Crimes (Sentencing Procedure) Act 1999 - s 22

DECISION:
Leave to appeal granted. Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60537/03
WOOD CJ at CL
SIMPSON J
BELL J
Friday 23 April 2004

Regina v Craig John Newman

Judgment

WOOD CJ at CL: The applicant pleaded guilty, in the Local Court to three offences of break, enter and steal (s 112(1) Crimes Act 1900), and was committed to the District Court for sentence. On 8 August 2003, Judge Urquhuart QC sentenced him to an aggregate total term of imprisonment of 4 years and 11 months, with a non-parole period of 3 years and 5 months. The sentence was made up of concurrent sentences, each of 3 years and 6 months, with a nonparole period of 2 years and 4 months in relation to the first two counts, and a sentence of 3 years and 11 months with a nonparole period of 2 years and 5 months, in relation to the third count (taking into account two offences of goods in custody). That last sentence was directed to commence 12 months after the commencement date for the sentences for the remaining counts.

Facts

In relation to each of the three break enter and steal offences, the applicant broke into dwelling houses, during daylight hours, and stole computer equipment, electrical and jewellery items, and a carton of cigarettes having a total value in the order of $15,500.

On each of the occasions that the offences were committed, the applicant managed to cut himself, leaving blood at the scene, the DNA profile of which was consistent with his own profile. When interviewed in relation to these matters the applicant claimed to have had no memory of them. At various points he indicated that if DNA found at the scene matched his DNA, then he was not disputing that fact, although he indicated additionally (eg Q &A 46-49) that “I can’t, I’m not saying nothing till I know.” After being asked some questions about the last of the offences, he made it clear that he did not intend to answer any further questions, indicating (A63) “it’s over and done with”; (A64) “youse just charge me” and (A65) “why would I pled (sic) not guilty.”

The two Form 1 offences, which were committed while the applicant was on bail for the three offences, were discovered when he was found on 7 March 2003 sitting, in a semiconscious state, on a mountain bike, which was the subject of one such offence. The other offence related to a Nokia brand mobile telephone which he had in his pocket.

In sentencing the applicant, his Honour allowed a discount of 12.5% for the pleas, in relation to the first two counts, and 12.96% for the third count. The ratio which the effective nonparole period bore to the overall sentence was 69.5%.

The applicant submits that his Honour failed to give sufficient weight to the utilitarian value of the pleas, when allowing a discount under s 22 of the Crimes (Sentencing Procedure) Act. In this regard reference was made to the following passages in his Honour’s remarks on sentence:
"I pause at this stage to note that the offender had no independent memory of the three break, enter and steal offences and, although his admission was not in immediate response to the presentation of the DNA conclusions, it was, in my view, sufficiently a response to enable a benefit to flow to him from his plea of guilty.
…
As to the terms of the sentences, the plea of guilty will be taken into account. The DNA evidence was strong and although, as I have already said, when confronted with it, the admission of guilt was not immediately forthcoming, I accept that the offender did not remember the particular locations. Beyond that which flows from a plea of guilty itself, there is little that can be added to it.”
S 22 of the Crimes (Sentencing Procedure) Act provides:
22 Guilty plea to be taken into account
(1)In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b)when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2)When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3)Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4)The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
The range of the discount available for this factor was held, in Regina v Thomson & Houlton (2000) 49 NSWLR 383, to fall between 10 and 25%, the principle considerations for determining the value of the plea being firstly the timing of the plea, and secondly the extent to which it has saved time and expense in assembling the evidence, and in court time.
As Spigelman CJ observed, the extent of the discount is a matter for the discretion of the sentencing judge, adding (at paras 154-155):
“There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options.”
Spigelman CJ also underlined the important separation of the elements of contrition and the utilitarian value attaching to the plea, observing (at paras 137 –138):
“Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564.
In R v Winchester Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan supra at 12). As his Honour put it at 350:
‘The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.’ In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A ‘recognition of the inevitable’ may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.”
Some attention was given, in the course of the submissions, to whether, as a matter of principle, any plea offered in the Local Court should be regarded as one offered at the earliest possible moment, and as one attracting the maximum discount which was referred to in the guideline judgment, irrespective of any antecedent delays in that court.
In my view, it is proper for the utilitarian value of a plea to be assessed in the continuum of the justice system, from the time of charging to disposition, and in the light of the fact that the amount of the discount is a discretionary matter, there being no entitlement, or presumption, that an offender should receive any particular amount by way of a discount in any particular factual situation: R v Scott [2003] NSWCCA 286 per Howie J at para 28.
Any other approach would involve an unduly rigid approach to the discretion which is involved, and would fail to pay regard to the fact that considerable savings in time, expense and inconvenience to investigators, the DPP, witnesses and the Court, will occur if pleas are offered, for example, at the first mention. Where that does not occur, considerable time, expense and inconvenience can be occasioned at the Local Court stage, in the assembly of evidence, in mentions, in conducting a committal, in applications for stays, appeals and the like, before the matter reaches the District Court or Supreme Court. It would be unrealistic to ignore those circumstances when assessing the utilitarian value of a plea, and it would be artificial to assume, without more, that a plea entered in the Local Court should inevitably attract the maximum discount.
That is not to say that a plea entered in the Local Court would not normally attract greater weight than one offered after arraignment in the District Court, but even that may depend upon the particular circumstances of the case, and of the individual offender, as there may well be good reasons for some delay. As appears from Regina v Dib [2003] NSWCCA 117 what is of relevance is the practical extent of the advantage, which the plea provides, for the administration of justice.
This has some relevance for the present case in that the applicant failed to appear in the Balmain Local Court when the charges were first listed on 2 October 2002, leading to the issue of a warrant for his arrest. Having regard to the nature of the answers given in the ERISP, which would have provided some assistance to the Crown, but would not have supported a contested case, DNA testing was carried out, and became the subject of three separate reports, which were dated 14 January 2003, and provided to the defence.
On 29 April 2003, it appears, the prosecution was advised informally that the applicant intended to plead guilty, and then on 27 May 2003 the pleas were entered in the Local Court, after which the applicant was committed for sentence.
Had the matter proceeded to trial, it would not have occupied any great time, or caused much inconvenience either to police or forensic witnesses, or to the victims. Nor was there any saving in investigative effort or costs since the prosecution brief was complete by the end of March 2003, by which time the statements of the victims had been obtained.
These were matters properly to be taken into account by his Honour when assessing, in a practical way, the extent of the utilitarian value of the pleas in the context of the administration of the justice system. They were such as might properly be regarded as lessening their value.
It was submitted however that the Crown had accepted, in the course of the sentencing proceedings, that the plea had been entered at the “earliest possible moment", and that it should be held to such concession. It is obvious from a reading of the transcript, which transposed the names of those representing the defence and the Crown, that it was in fact the applicant's legal representative who attributed that concession to the Crown, by an aside during a somewhat lengthy address.

The Crown representative did not address on sentence, and it is by no means clear that silence in relation to such an aside should be taken to have indicated acquiescence. It was not a submission, in my view, that was born out on the facts, and even if there was a concession by silence, it is not one that is binding upon the Crown, since the assessment of whether or not the plea had a utilitarian value, and the extent of the value attaching thereto, were matters purely for the sentencing judge to determine.

It was next submitted that the passages cited indicate that his Honour made the error referred to in Regina v Carter [2001] NSWCCA 245, and in Regina v Parkinson [2001] NSWCCA 244 in reducing the utilitarian value of the plea by reason of his assessment of the strength of the Crown case. I am not persuaded that his Honour made any such error. As was made clear in Regina v Ebsworth [2002] NSWCCA 465, references by sentencing Judges to the strength of the Crown case do need to be read in context, and a determination made as to whether that factor was treated as a matter going to the utilitarian value of the plea, or to its timing, or as to a display of remorse or contrition.
In the present instance there was no reference to the presence of DNA evidence having lessened the utilitarian value of the plea, and the context in which the remark was made suggests that his Honour was concentrating on the circumstances which led to the pleas, that is, as to the timing of them.
I am accordingly not persuaded that his Honour erred in the approach which was taken in relation to the discounts which, given the particular background of this case, were low, but within range.
This brings me to a consideration of whether, otherwise, there was error in relation to the sentences.
His Honour made extensive and appropriate reference to the applicant’s deprived background and to his appalling criminal record, which had seen him appearing in the court system and/or being in custody for almost every one of the 21 years which had passed since reaching the age of 12 years. He noted his prolonged history of substance abuse, and of his attempts, albeit failed attempts, to rehabilitate himself, as well as his history of having overdosed on several occasions.

His Honour also made reference to his express desire to abandon drug abuse and a life of crime, as well as the somewhat sanguine, although qualified, observation by the author of the pre sentencing report that
"perhaps for first time [the applicant] is really wanting to change his lifestyle and this could make all the difference to him successfully completing a long-term residential rehabilitation program." (Emphasis added)
The case was not one that was either advanced, or that could properly have been said to be one in which the applicant had reached the “crossroads”, and as such was entitled to any particular degree of leniency. As the court made clear in Regina v Govinden [1999] NSWCCA 118, claims to the effect that an appellant has reached “a turning point” in his or her life, or has strong prospects of rehabilitation, are not to be accepted uncritically or at face value: see also Regina v Salameh, NSWCCA 9 June 1994.

The offences were serious, and the applicant's drug addiction did not operate in mitigation of that seriousness.

The reference to the sentencing statistics does indicate that the sentences were towards the upper end of the range, but that of itself is not enough to attract intervention.
Reference was also made to the decision of this Court (Barr and Howie JJ) in Regina v Andreassen [2001] NSWCCA 246 which, it was suggested, bore some similarity to the present case. This was a severity appeal in which, while leave was granted, the appeal was itself dismissed. As such, it did no more than affirm the decision of a sentencing judge in the District Court, and was itself but one case forming part of the relevant sentencing pattern. This Court has regularly pointed out that that the practice of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, which do not attract parity questions, is not to be encouraged: Regina v Morgan (1993) 70 A Crim R 368 and Regina v Trevenna [2004] NSWCCA 43.
Sentencing remains an individual exercise, in which the sentence passed must be commensurate with the offender’s objective criminality, and his subjective circumstances.

The ultimate question is whether some other sentence than that passed was warranted and should have been passed. I am not persuaded that this test has been met. I would grant leave to appeal but would dismiss the appeal.
SIMPSON J: I agree with Wood CJ at CL.
BELL J: I agree with Wood CJ at CL.

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LAST UPDATED: 27/04/2004