R v Toumo'ua
[2017] ACTCA 9
•22 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Toumo’ua |
Citation: | [2017] ACTCA 9 |
Hearing Date: | 24 February 2017 |
DecisionDate: | 22 March 2017 |
Before: | Murrell CJ, Rangiah J and Walmsley AJ |
Decision: | 1. Appeal allowed. 2. Sentences imposed by the primary judge set aside. 3. Respondent re-sentenced to a total of 6 years’ imprisonment (see [113]–[114]). 4. Nonparole period of 3 years’ imprisonment. |
Catchwords: | APPEAL – Criminal Law – Crown appeal against sentence – nature of Crown appeal – whether specific error in allowing a discount of 25 per cent for each guilty plea – approach to discount for guilty pleas – whether sentences were manifestly inadequate – whether specific error in setting a low nonparole period – re-sentence |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10(2)–(3), 33(1), 35, 65 Crimes Act 1900 (ACT) s 114B Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(g) Criminal Appeal Act 1912 (NSW) s 5D Criminal Code 2002 (ACT) ss 308, 311 Human Rights Act 2004 (ACT) ss 22(2)(i), 30 Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37)(1)(b), 37O(7) |
Cases Cited: | Afiouny v The Queen [2017] NSWCCA 23 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Barbieri v The Queen [2016] NSWCCA 295 Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638 CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308 Coggan v The Queen [2013] ACTCA 49 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; 298 FLR 397 Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Haines v The Queen [2016] NSWCCA 90 House v The King (1936) 55 CLR 499 Inge v The Queen [1999] HCA 55; 199 CLR 295 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Millard v The Queen [2016] ACTCA 14 Milat v The Queen [2014] NSWCCA 29 Monfries v The Queen [2014] ACTCA 46 Power v The Queen (1974) 131 CLR 623 R v Allred [2015] ACTSC 327 R v Baker [2000] NSWCCA 85 R v Burton [2008] NSWCCA 128 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Chatfield [2012] ACTCA 32 R vDuffy [2014] ACTCA 53; 297 FLR 359 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 R v Lachlan [2015] NSWCCA 178 R v Palu [2002] NSWCCA 381; 134 A Crim R174 R v Pantano (1990) 49 A Crim R 328 R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 R v Sutton [2004] NSWCCA 225 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 Shine v The Queen [2016] NSWCCA 149 Taylor v The Queen [2014] ACTCA 9 Thomson v R [2015] ACTCA 16 Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 |
Texts Cited: | NSW Sentencing Council, Reduction in Penalties at Sentence, report pursuant to s 100J(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (2009) Explanatory Memorandum, Crimes (Sentencing) Bill 2005 (ACT) |
Parties: | The Crown (Appellant) Salesi Toumo’ua (Respondent) |
Representation: | Counsel Mr J White SC (Crown) Mr J Lawton (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Respondent) | |
File Number: | ACTCA 25 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Justice Penfold Date of Decision: 21 June 2016 Case Title: R v Toumo’ua; R v Schaaf Citation: [2016] ACTSC 163 |
THE COURT
Introduction
The prosecution appealed against sentences imposed by Penfold J (the primary judge) on 21 June 2016 for four offences of burglary, one offence of theft and one offence of money laundering.
The primary judge imposed a total sentence of five years’ imprisonment and set a nonparole period of 20 months’ imprisonment, i.e. one third of the total sentence. In the case of each offence, the respondent received the benefit of a 25 per cent discount under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).
For the offences of burglary, the primary judge imposed one sentence of 18 months’ imprisonment and three sentences of two years and three months’ imprisonment. Before discount, the sentences were two years’ imprisonment (for the first burglary) and three years’ imprisonment (for each of the remaining three burglaries). Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) (Criminal Code) and carries a maximum penalty of 14 years’ imprisonment.
For the offence of theft, the primary judge imposed a sentence of three years’ imprisonment. Before discount, the sentence was four years’ imprisonment. Theft is an offence against s 308 of the Criminal Code and carries a maximum penalty of 10 years’ imprisonment.
For the offence of money laundering, the primary judge imposed a sentence of two years and three months’ imprisonment. Before discount, the sentence was three years’ imprisonment. Money laundering is an offence against s 114B of the Crimes Act 1900 (ACT) (Crimes Act) and carries a maximum penalty of 10 years’ imprisonment.
A reparation order for $30,000 was made.
The prosecution contended that the primary judge erred in:
(a)Allowing a sentencing discount of 25 per cent for each guilty plea;
(b)Imposing individual sentences and a total sentence that was manifestly inadequate; and
(c)Applying a “sentencing practice” of setting a low nonparole period because the offender did not represent a direct danger to the community.
Nature of prosecution appeal
The prosecution may appeal against a sentence pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA). Leave is not required. On such an appeal, the Court of Appeal is empowered to increase or decrease the sentence and substitute a different sentence: s 37O(7).
The SCA does not distinguish between a prosecution appeal against sentence and an offender appeal against sentence; it does not prescribe a different approach to the institution of the appeal, the establishment of error or re-sentencing.
However, on many occasions this Court has said that, whereas an offender appeal is concerned with the correction of error in a particular case, a Crown appeal against sentence should be a rarity, brought for the purpose of laying down principles for the general governance and guidance of courts: Thomson v R [2015] ACTCA 16 at [68] per Murrell CJ and Ross J, citing CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308; R vDuffy [2014] ACTCA 53; 297 FLR 359 at [54]–[60].
A number of NSW decisions deal with s 5D of the Criminal Appeal Act1912 (NSW) (Criminal Appeal Act), which provides that, on a Crown appeal, the appellate court “may in its discretion vary the sentence”. The decisions include: R v Baker [2000] NSWCCA 85 (Baker); R v Lachlan [2015] NSWCCA 178; and R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 (Hatzisavvas). In Hatzisavvas, Hoeben CJ at CL confirmed that, under s 5D Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with the sentence even if it is erroneously lenient: at [70], citing Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] (Green). In Green, the High Court considered the proper approach to a Crown appeal in NSW, where s 5D applies. At [1]–[2] and [42]–[43], the majority (French CJ, Crennan and Kiefel JJ) confirmed that, in the case of a Crown appeal where manifest inadequacy is established, the Court may nevertheless exercise its residual discretion to dismiss the appeal where injustice would flow if the appeal was allowed. Factors such as parity with an inadequately sentenced co-offender, imminent release to parole or the effect of re-sentencing on progress towards rehabilitation were identified as relevant to the exercise of the residual discretion.
However, as noted above, in this jurisdiction the SCA does not distinguish between re-sentencing in the case of a successful prosecution appeal and re-sentencing in the case of a successful offender appeal. In R v Chatfield [2012] ACTCA 32, this Court held that s 7(1)(a) of the Sentencing Act has an effect that is similar to s 16A(1) of the Crimes Act1914 (Cth). One consequence is that, as the High Court held in Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638, when the issue of re-sentencing arises following a successful prosecution appeal, the Court must disregard any “principle” of double jeopardy (presumed anxiety and distress associated with re-sentencing) and impose a sentence that constitutes adequate punishment. A related consequence is that, as explained in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell), the Court should re-sentence by exercising the sentencing discretion afresh, rather than merely confirming the original sentence on the basis that it fell within the available range: at [42] per French CJ, Hayne, Bell and Keane JJ.
Facts
In January 2012, the respondent began to work for the Tibbitts’ family security company in Canberra. The company was contracted by firms who provided security services to banks and other financial institutions. It serviced automatic teller machines (ATMs) in the ACT and regional NSW.
At the time of the offences, the respondent was second in charge to the principal, Mr Tibbitts. On 13 May 2013, pressing family concerns required Mr Tibbitts to travel interstate at short notice. He left the respondent in charge of the business.
That night, the respondent attended the business premises. With his head and face concealed so that he could not be identified via closed circuit television, he removed keys to bank ATMs from the safe. The respondent also took the keys for a Hyundai business vehicle that was kept at the premises.
The respondent drove the Hyundai vehicle to Charnwood, where he entered a St George Bank ATM bunker. Using the keys that he had taken and passwords that had been entrusted to his employer, he removed about $212,000. From there, he drove to a St George Bank bunker at Mitchell and removed about $246,000. Next, he went to Wanniassa, where he removed about $73,000 from another ATM. The total amount appropriated in the ACT was $531,330. That night, the respondent also removed $244,010 from a St George Bank ATM bunker in Queanbeyan, New South Wales. The respondent abandoned the Hyundai vehicle in the suburb of Holder.
On 19 May 2013, a co-offender hired a Holden vehicle at Canberra Airport and the respondent drove to Melbourne, taking the stolen cash with him. There, the respondent’s cousin leased a storage unit in her own name for 12 months, which the respondent used to store incriminating documents and cash. Between May and October 2013, he laundered much of the proceeds of the theft through betting. Most bets were placed with Tabcorp, a company that permits customers to operate telephone betting accounts.
It was several months before the respondent was identified as the culprit. During this period, other staff members suffered the adverse psychological effects of being under a cloud of suspicion. Mr Tibbitts and his family experienced severe psychological effects and their business was financially devastated. Clients were lost, and the business went into liquidation, with the consequence that about 15 staff lost employment, debts were incurred, Mr Tibbitts became depressed and family relationships were placed under pressure. Obligations under vehicle leases and legal fees caused direct losses of more than $30,000.
Ultimately, police recovered $193,782 in cash. They collected a further $152,249 from a successful bet (with a face value $52,758) that the respondent had placed on the 2013 AFL Grand Final.
Primary judge’s view of objective seriousness
The primary judge observed that the offences were all “serious offences”.
Her Honour noted that, although the burglaries related to commercial rather than domestic premises, the indirect effect of the burglaries (both psychological and financial) on the owners of the family business “was far more dramatic than the impact of most domestic burglaries”: at [26]. Her Honour referred to “a carefully planned course of offending for financial gain”; the offences were not committed on the spur of the moment: at [63]. On the other hand, most of the offences occurred over a relatively short period of a couple of hours and did not entail “the sustained and repeated acts of dishonesty involved in many cases in which employees have stolen large sums”: at [28].
The primary judge considered that the offences involved a “dramatic” abuse of trust, particularly because Mr Tibbitts had left the respondent in charge so that he could attend to a pressing personal problem: at [29]. The abuse of trust was twofold; there was an abuse of the trust of both the respondent’s employer and the employer’s clients, from whom the respondent stole a large sum of money, which was only partially recovered.
We accept the appellant’s submission that the primary judge’s characterisations of the burglaries as “around mid-range seriousness” and the theft as “slightly above mid-range seriousness” were, at least, conservative: at [46].
However, we consider it most unlikely that the sentences were influenced by the primary judge’s views in relation to “mid-range seriousness”. Rather, her Honour sentenced the respondent by reference to relevant specific matters bearing upon objective seriousness. Consequently, it is unnecessary to give this matter further consideration, other than to observe that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
We can identify no error in the primary judge’s approach to the assessment of the objective seriousness of the offences that is likely to have influenced the sentencing outcome and the appellant did not contend that there was such an error.
Primary judge’s consideration of subjective circumstances
The primary judge recorded that the offender was 30 years of age and that his prior criminal history consisted of two drink-driving offences. Her Honour noted the offender’s positive family circumstances and church connections, and referred to the evidence of referees who considered that the respondent’s actions were out of character and said that he was remorseful.
The respondent had submitted that his misconduct was the product of financial strain caused by a gambling addiction. The primary judge was sceptical about this claim, observing that there was no evidence of gambling other than that undertaken in an attempt to launder the proceeds of the burglaries.
The primary judge accepted that the respondent was at low risk of general re-offending.
We can identify no error in her Honour’s approach to the respondent’s subjective circumstances, and none was asserted.
Other matters to which the primary judge referred
The primary judge correctly identified that, for planned offences of the nature in question, general deterrence was an important sentencing purpose: [63]. Her Honour was also concerned to promote the respondent’s rehabilitation: [78]. In our view, that was entirely appropriate given the respondent’s limited criminal history and general good character, positive family and community connections and remorse.
The primary judge reviewed other cases to which her attention was drawn, observing that, although the offences committed by the respondent were burglaries and theft, they were, in substance, more like the deception offences that were the subject of cases to which she was referred: [68]–[71].
The appellant did not submit that the primary judge had failed to address a relevant sentencing consideration or had erred in her approach to the sentencing purposes that were important to the case. We can identify no error in her Honour’s approach to these matters.
Ground 1: extent of discount for pleas of guilty
The appellant submitted that the primary judge made a specific error in allowing a discount of 25 per cent for guilty pleas that were entered relatively late and were associated with “limited demonstrated remorse”. In addition, the appellant submitted that the primary judge failed to take into account that the pleas of guilty had been entered in the face of an “overwhelmingly strong” prosecution case, a necessary consideration under s 35(4) of the Sentencing Act.
At [65], the primary judge recorded the plea history. In November 2014, the respondent was charged with numerous offences and pleaded not guilty. In June 2015, he was committed to the Supreme Court for trial. In August 2015, the appellant filed an indictment containing 11 counts. Negotiations commenced. In December 2015, the respondent indicated the basis upon which he would plead guilty. In February 2016, the prosecution filed a fresh indictment containing six counts, and the respondent pleaded guilty.
The new indictment “rolled up” various theft counts into one theft count and abandoned what had been a separate burglary count relating to the Hyundai vehicle.
In submissions made to the primary judge on sentence, counsel for the respondent conceded that “the largest discount” may not be appropriate, but sought a “significant discount”.
Consideration of ground 1
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender the sentencing court is required to take into account “a plea of guilty by the offender (see s 35)”.
Section 35 of the Sentencing Act provides:
(1)This 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.
(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.
This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Sentencing Act), which provides:
(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
(c)the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
In both NSW and the ACT, the sentencing court must consider when a plea of guilty was entered or indicated (presumably, indicated to the court rather than to the prosecution, although this is not stated expressly). In both jurisdictions, the sentencing court is enjoined that it must not impose a lesser penalty that is “unreasonably disproportionate to the nature and circumstances of the offence”. However, there are significant legislative differences between the jurisdictions.
Approach to discount in New South Wales
Section 22 of the NSW Sentencing Act is firmly focused on rewarding offenders for the utilitarian value of pleas of guilty. In the guideline decision of R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 (Thomson) at [125] and [135], Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) acknowledged the significant public interests served by encouraging early pleas of guilty and the related need to inform participants in the criminal justice system about the benefits that will accrue for an early plea, and to guide judges towards consistency. These public interests are served if offenders know with reasonable certainty the level of discount that is likely to be given for a plea entered at a particular stage of the proceedings.
Section 22(1)(c) (requiring the sentencing court to consider the circumstances in which the offender indicated an intention to plead guilty) was introduced by the Crimes (Sentencing Procedure) Amendment Act2010 (NSW) after the decision in Thomson. It responded to a recommendation by the NSW Sentencing Council (Council) in its report Reduction in Penalties at Sentence of August 2009. It was not designed to change the law, but to reinforce it. The Council referred extensively to Thomson (at Ch 2). The Council found that existing laws and sentencing practices were appropriate, but wished to encourage judges to provide reasons that “indicate that account has been taken of the principles settled by the courts” (at Executive Summary).
As to the extent of the discount that should accrue under s 22 (as it then was), in Thomson at [160], Spigelman CJ concluded in part that:
(i) The utilitarian value of a plea to the criminal justice system should
generally be assessed in the range of 10-25 per cent discount on sentence. Theprimary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge
(ii) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
At [155]–[157], his Honour stated:
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...
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.
There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate (citations omitted).
In R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (Borkowski), Howie J (McClellan CJ at CL and Simpson J agreeing) restated the principles applicable to discounts in New South Wales.
The NSW Court of Criminal Appeal has held that, generally speaking, the reason for delay in indicating a plea is irrelevant because the mere fact that a plea of guilty is not forthcoming means that the utilitarian value is reduced: see, for example, R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 at [11]; Borkowski at [32]; and Shine v The Queen [2016] NSWCCA 149 (Shine) at [111].
However, more recently, the Court has emphasised that particular circumstances may mean that the degree of discount is not dictated just by the timing of a plea of guilty. In particular, it may be unreasonable to expect an offender to indicate a plea of guilty before their fitness to plead has been determined and before expert evidence has been obtained to determine whether they may have a defence of mental impairment: Haines v The Queen [2016] NSWCCA 90; Shine at [114]. In Barbieri v The Queen [2016] NSWCCA 295 (Barbieri) at [95], Simpson AJ said that s 22 was “susceptible of a less rigid interpretation than may appear to be derived from decisions such as Thomson and Houlton and Borkowski.”
In Milat v The Queen [2014] NSWCCA 29, the Court of Appeal found no error where the sentencing judge had allowed no discount for an early plea of guilty because the offender posed a substantial risk of violent re-offending and was a serious potential danger to the community. At [84], R A Hulme J (with whom Bathurst CJ and Hall J agreed) clarified that there are rare cases where the policy of transparency in allowing quantified discounts on sentence to encourage early pleas of guilty need not be applied because of exceptional circumstances. Such cases include those where protection of the public requires a long sentence and those which so offend the public that the maximum sentence without any discount is appropriate, notwithstanding the plea.
A different statutory scheme in the ACT
In Monfries v The Queen [2014] ACTCA 46 (Monfries) at [44], Murrell CJ (with whom Burns and Ross JJ agreed on this point) noted that the ACT courts have adopted an approach to s 35 discounts that is very similar to the NSW Thomson approach to discounts for utilitarian value and said at [47]:
A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
However, the ACT statutory scheme does differ from that in NSW. Where the NSW provision requires the sentencing court to consider the fact and timing of the plea and “the circumstances” in which the offender indicated an intention to plead guilty, the ACT provision is much more prescriptive. In addition to requiring the sentencing court to consider “the circumstances” in which a plea was entered or indicated, the ACT provision requires the sentencing court to consider particular circumstances, i.e. whether negotiations have occurred, the seriousness of the offence, the effect on victims and others entitled to make a victim impact statement, and whether the prosecution case “was overwhelmingly strong”.
It is necessary to consider whether and in what way those particular circumstances detract from a focus on rewarding a plea of guilty according to its timing and general circumstances, and the associated utilitarian value.
Where possible, ACT statutory provisions are to be interpreted consistently with the Human Rights Act 2004 (ACT) (HRA): s 30. Section 22(2)(i) of the HRA provides a “minimum guarantee” that a person charged with a criminal offence will “not be compelled to testify against himself or herself or to confess guilt”. As in Monfries (at [45]), in this case we have not been asked to consider the impact (if any) of s 22(2)(i) on the interpretation of s 35 of the Sentencing Act. Nor have we revisited what may be a related question: the proper approach to a sentencing discount in situations where s 16A(2)(g) of the Crimes Act1914 (Cth) applies. The interpretation of s 16A(2)(g) (which invites a discount for “the fact” of a plea of guilty to a Commonwealth offence, without elaboration) in the context of the principle of equal justice under the law is controversial. In Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; 298 FLR 397 (Gow), Basten JA departed from NSW Court of Criminal Appeal decisions such as Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 (Tyler) which suggested that, when sentencing for a Commonwealth offence, there should be no discount for utilitarian value. Notwithstanding Gow, in R v Saleh [2015] NSWCCA 299, Beech-Jones J opined that Tyler “represents the applicable law in this Court”: at [5]. This Court considered Basten JA’s reasoning in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (Harrington), and Refshauge ACJ and Gilmour J opined that, on this point, Basten JA’s decision was “clearly wrong”: at [131]. But in Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237, the Victorian Court of Appeal concluded that s 16A(2)(g) does permit a discount for the utilitarian value of a plea to a Commonwealth offence. Further, in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [31], the plurality (French CJ, Hayne, Kiefel and Bell JJ) suggested that the utilitarian value of a plea of guilty was relevant, although the comment was obiter dicta, and was made in a different context.
Section 35(2)(c) — negotiations
Section 35(2)(c) of the Sentencing Act requires a sentencing court to consider whether the guilty plea was related to negotiations about the charge to which the offender ultimately pleaded guilty.
The purpose of s 35(2)(c) is not immediately obvious. Should the fact that negotiations preceded the plea result in a larger discount because the offender entered the plea as soon as reasonably practicable after negotiations that resulted in a more appropriate charge? Or should the fact of negotiations mean that the offender receives a smaller discount when the negotiations have resulted in a lesser charge or fewer charges and the offender will benefit from the lower penalty that is likely to be associated with the new charge or charges?
The Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) assists to resolve this ambiguity. It provides the following explanation for the inclusion of s 35(2)(c):
Clause 35(2)(c) is included to enable the Court to discern whether or not a guilty plea associated with negotiations is intended to induce the prosecution not to proceed with a more serious charge. Diminishing credit for guilty pleas associated with negotiations or bargaining is consistent with... [cases that argued] that a lesser discount, or no discount, for a plea of guilty is appropriate in circumstances where the defendant enters a plea as a means of inducing the prosecution not proceed with a more serious charge.
Read in this way, s 35(2)(c) supports a focus on the utilitarian value that is associated with the timing of a plea of guilty. An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.
Section 35(2)(d) — seriousness of the offence
What is the purpose of s 35(2)(d) of the Sentencing Act (“the seriousness of the offence”)? The seriousness of a charge is indicated by the maximum penalty, a critical parameter for the sentencing court. The seriousness of the particular offence before the sentencing court is taken into account when assessing its objective seriousness as compared to other offences of its type. These matters are crucial to determining both the starting point for the head sentence and the actual head sentence after discount, both as a matter of general principle and pursuant to s 35(6) of the Sentencing Act. In those circumstances, what work is left for s 35(2)(d)?
The Explanatory Statement is silent about the purpose of s 35(2)(d) and how it is to be applied. Is an offender to receive a greater discount for the utilitarian value of pleading guilty to a serious offence which, because serious offences are often associated with longer and more complex trials, may have spared the community the cost of such a trial and spared the victim from being re-traumatised? Or is the offender to receive a lower discount for pleading guilty to a more serious offence because such offences often call for greater community protection? Both approaches are unsatisfactory; the first disadvantages less serious offenders and the second tends to disadvantage more serious offenders, and may be financially costly to the community and psychologically costly for victims.
In New South Wales, in Thomson, the Court said that the strength of the prosecution case had no bearing on the discount given for utilitarian considerations: at [136]. Spigelman CJ acknowledged that exceptional complexity and trial duration (often associated with more serious offences) may justify a higher discount, and that protection of the public from dangerous offenders (generally associated with more serious offences) may require a longer sentence and hence no discount: at [156]–[158] (see above [44]). However, the fact that an offence is a serious offence of its type is usually reflected in the starting point for the sentence and, of itself, is not a reason to refuse a discount for the utilitarian value of the plea: R v El- Andouri [2004] NSWCCA 178 at [35].
While the seriousness of an offence, trial length/complexity, and protection of the public from dangerous offenders tend to be associated, each consideration is different from, and not necessarily associated with, the others. In New South Wales, the seriousness of an offence does not affect the discount, but trial length/complexity and protection of the public from dangerous offenders may affect the discount.
In contrast, in this jurisdiction, the seriousness of the offence must be considered by the sentencing court under s 35(2)(d) of the Sentencing Act.
In this case, we are not required to decide the way in which s 35 (2)(d) may affect a s 35 discount. The appellant did not argue that, when assessing the discount, the primary judge erred in her approach to this consideration.
Section 35(2)(e) — victim impact
Recognition of the harm done to the victim of the crime is a sentencing purpose identified in s 7(1)(g) of the Sentencing Act. Injury, loss, and damage resulting from the offence are to be taken into account under s 33(1)(e). The effect of the offence on victims, and others who may make a victim impact statement, is to be taken into account under s 33(1)(f). All these matters will be reflected in the starting point for the head sentence (and therefore in the actual sentence, after s 35 discount).
Consequently, it is difficult to know what to make of s 35(2)(e). The Explanatory Statement does not assist. Is an offender to receive a lower discount where a victim has made a victim impact statement showing that they were greatly impacted, as compared to a hypothetical identical case where the victim has declined to make a victim impact statement and the extent of their injury may be greater, but is unknown?
Such an approach would be contrary to established sentencing principle; the attitude of a victim cannot be allowed to interfere with the proper exercise of the sentencing discretion, regardless of whether the attitude is one of vengeance or forgiveness. This is because sentencing is concerned with matters of general public importance and is not designed “to mollify the victim”: R v Palu [2002] NSWCCA 381; 134 A Crim R174 at [37]; R v Burton [2008] NSWCCA 128 at [102].
In this case, the appellant referred to this consideration only to emphasise that, as the offences had a severe impact on the victims, s 35(2)(e) could not be invoked to explain why the s 35 discount was as high as 25 per cent despite the relatively late plea.
Section 35(4) - prosecution case overwhelmingly strong
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 The Queen [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.
On this appeal, the appellant asserted that the prosecution case was “overwhelmingly strong” but did not argue that s 35(4) had precluded a “significant” discount.
We agree that the prosecution case was very strong, although largely circumstantial. However, we do not consider that it fell into the very small class of cases that satisfy the “overwhelmingly strong” requirement in s 35(4) of the Sentencing Act. On the other hand, we accept the appellant’s submission that there was no deficiency in the prosecution case that could explain the high discount that was given for the pleas of guilty.
Error in the primary judge’s approach in this case
At [65]–[67] of the primary judge’s decision, under the heading of “Pleas of guilty”, her Honour noted the history of negotiations between the parties, before stating:
66. I understand that the Crown accepts these pleas as having been entered as soon as possible after negotiations had been completed. I also note that they did come before any trial date had been set, and avoided what would undoubtedly have been a long and difficult trial. The original witness list identified 35 witnesses to be called in the Crown case, with another 150-odd whose evidence would be tendered through the informant unless the defence required them to appear, and the original estimated duration for the trial was up to 4 weeks.
67. Sentencing discounts will be provided in recognition of the utilitarian value of the pleas. I also accept the pleas as some indication of remorse.
It is apparent that at least three considerations informed the primary judge’s assessment of the appropriate discount for the pleas of guilty.
First, her Honour considered the relationship between the pleas of guilty and the negotiations. Her Honour considered that a plea of guilty entered as soon as possible after negotiations were completed was to be rewarded in the same way as a plea of guilty entered soon after the original charges were laid.
As noted above, in this case the negotiations secured an amended indictment that was more favourable to the respondent in that it contained fewer charges, but there was no substantial change in the subject matter covered by the charges. For the reasons explained in [55]–[56], the respondent was entitled to the benefit of being sentenced on the negotiated charges, but there was no additional entitlement to a s 35 discount on the basis that the pleas of guilty were entered at the earliest reasonable opportunity; the timing of the plea was to be assessed by reference to the charge date, not the date when the indictment was finalised after negotiation.
Second, her Honour took into account the utilitarian value of avoiding a lengthy and complex trial. Her Honour was right to take this consideration into account.
Third, her Honour factored the consideration of remorse into the discount for a plea of guilty. It was inappropriate to do so; remorse is a separate consideration to be taken into account when fixing the starting point for the head sentence and it may also be relevant to the nonparole period.
The result was that the respondent received a discount of 25 per cent. As explained in Monfries, in this jurisdiction a 25 per cent discount is generally reserved for cases in which a plea of guilty is entered at an early stage. In exceptional circumstances, it may apply in other cases. However, this was not such a case.
Appropriate approach to discount for pleas of guilty
Having regard to the matters referred to in s 35, particularly the stage at which the pleas were entered (in the Supreme Court but before a trial date had been fixed) and the significant utilitarian value of avoiding a lengthy and complex trial, the appropriate discount was at least 15 per cent.
In re-sentencing the respondent we would allow a discount of 17 per cent. Discounting the original sentences by 17 per cent would result in the following sentences:
(a)First burglary: Two years’ imprisonment less 17 per cent = 1 year and 8 months’ imprisonment.
(b)Other burglaries: Three years’ imprisonment less 17 per cent = 2 years and 6 months’ imprisonment.
(c)Theft: Four years imprisonment less 17 per cent = 3 years and 4 months’ imprisonment.
(d)Money-laundering: Three years imprisonment less 17 per cent = 2 years and 6 months’ imprisonment.
Ground 2: manifest inadequacy
We will consider this ground only briefly. As we have found specific error, it will be necessary to re-sentence the respondent in any event.
The appellant submitted that each individual head sentence was manifestly inadequate, and the result was a total sentence that was manifestly inadequate.
In support of this submission, the appellant drew attention to the maximum penalties applicable to each offence and asked this Court to infer that the primary judge had failed to pay sufficient attention to the maximum penalty in the manner explained in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372. The appellant observed that the offences of burglary and theft had involved planning, serious breaches of trust by an employee and the theft of a very large sum of money. The appellant submitted that, in the case of white collar offences such as those in question, sentencing purposes of general deterrence and denunciation should have been reflected in more severe sentences: R v Allred [2015] ACTSC 327 at [40]–[41]; R v Pantano (1990) 49 A Crim R 328 at 330.
Consideration of ground of manifest inadequacy
Like a complaint of manifest excess, a complaint of manifest inadequacy asks the appellate court to infer an error where there is no express error. It asks the appellate court to overturn a decision (a sentence) that is the quintessentially discretionary product of intuitive synthesis. It is very difficult to succeed on such an appeal. An appellate court will uphold a complaint of manifest excess or manifest inadequacy only where the sentence is manifestly unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504–505; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
In this case, the primary judge acknowledged that the offences differed from typical domestic offences of burglary and theft and implied that they were in the nature of white collar crimes. Her Honour observed that general deterrence was important to sentencing: at [63]. Her Honour referred to the maximum penalties and considered and compared the outcomes in comparable cases. Her Honour was alive to all the features that informed the objective seriousness of the offences and invoked sentencing purposes supporting a substantial sentence, such as punishment and general deterrence.
However, the offender’s subjective circumstances were strong; at 30 years of age he had no relevant prior criminal history and was a person of generally good character who was assessed as at low risk of general reoffending. Prior good character may be of less weight in the case of white collar offences, which are frequently committed by persons who have secured positions of trust because they are persons of prior good character. Nevertheless, it is a consideration of some significance.
There is nothing about the starting points for the sentences that suggests manifest inadequacy.
Ground concerning nonparole period
The appellant submitted that the primary judge imposed an inadequate nonparole period as a result of a specific error in approach; her Honour said that there was a “practice if not actually a principle ... that for offences such as these where an offender is not apparently a direct danger to the community, a relatively low period of full-time custody may be adequate”: at [76]. Her Honour stated that she would “recognis[e] the practice” by enabling the respondent to be released after serving a relatively low proportion of the head sentence: at [77].
The primary judge said that she was unable to predict how the appellant would cope or behave in custody. Consequently, her Honour decided to set a nonparole period rather than suspend part of the sentence. Her Honour was concerned to provide an incentive for the appellant to be of good behaviour while in custody and to make the most of his custodial time. Accordingly, her Honour imposed what she described as “a relatively short” nonparole period of 20 months’ imprisonment, one third of the total sentence: at [78].
Consideration of ground concerning nonparole period
A sentence of any type is to be imposed for one or more of the purposes set out in s 7 of the Sentencing Act (adequate punishment, general and personal deterrence, community protection, rehabilitation, accountability, denunciation and recognition of harm to the victim and the community).
A sentence of imprisonment is to be imposed only “if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate”: Sentencing Act s 10(2). A sentence of imprisonment “must be served by full-time detention at a correctional centre”, unless the sentencing court “orders otherwise”, e.g. by making an intensive correction order or a suspended sentence order: s 10(3).
Section 65 of the Sentencing Act requires a sentencing court to set a nonparole period when imposing a total term of imprisonment of one year or longer (disregarding any period for which the sentence is suspended). At the conclusion of the nonparole period, the offender is eligible to be released to parole and to serve the balance of the sentence in the community.
The Sentencing Act says nothing about the length of a nonparole period, its purpose or its relationship to the total head sentence, although s 65(4) provides:
However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents.
Section 65(4) may be invoked, for example, in an extreme case where an offender has committed a very serious personal violence offence and has a history of such behaviour. In that case, the sentencing court may conclude that the absence of rehabilitation prospects and the continuing risk of serious harm to the community warrant the withholding of a nonparole period.
In Power v The Queen [1974] HCA 26; 131 CLR 623 at 629 the plurality (Barwick CJ, Menzies, Stephen and Mason JJ) said that the purpose of providing for parole in the legislation thereunder consideration was:
... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
That approach was applied by this Court in Millard v The Queen [2016] ACTCA 14.
There must be an “appropriate relationship” between a head sentence and the associated nonparole period. In Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, Gibbs CJ (Wilson J agreeing) said:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
In Inge v The Queen [1999] HCA 55; 199 CLR 295 at [57], Kirby J said:
The Court’s approach in Deakin constituted a rejection of the view that all the judge was doing was to fix a minimum term after which it would be proper to transfer the evaluation of the prisoner’s prospects of rehabilitation to agencies of the Executive Government.
At [59] his Honour said:
... the non-parole period must necessarily bear a relationship to the sentence of imprisonment which is imposed ... It represents that portion of the sentence which, in the opinion of the court imposing the sentence, must actually be served in custody by the prisoner. In the ordinary case, where a head sentence comprises a determinate period in prison, the non-parole period will constitute a substantial part of that sentence ... The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. (citations omitted)
Recently, in Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47], Hoeben CJ at CL (Latham and Price JJ agreeing) emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Further, the need for rehabilitation had to be balanced against the overarching requirement (in that case, found in s 16A(1) of the Crimes Act 1914) that the sentence be of a severity appropriate in all the circumstances of the offence.
In Taylor v The Queen [2014] ACTCA 9 at [19], this Court summarised the proper approach to fixing a nonparole period as follows:
1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakinv The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmyv The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Ingev The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods.
In this jurisdiction, the considerations that are relevant to fixing a nonparole period are to be found in ss 7 and 33 of the Sentencing Act and understood in the context of the above cases.
In fixing a nonparole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low nonparole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
Ordinarily, a nonparole period should constitute a substantial part of the total sentence. In some cases, a nonparole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low nonparole period is set, the sentencing court should explain why, in the particular case, it considers that the low nonparole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.
In this case, the primary judge explained the unusually low nonparole period by reference to a “practice if not actually a principle” that offenders who represent no apparent “direct danger” to the community should receive a relatively short nonparole period. There is no such practice or principle. One of the sentencing purposes in s 7 of the Sentencing Act is protection of the community from the offender: s 7(1)(c). If that is the matter to which her Honour was referring, then she was entitled to consider it when fixing the nonparole period. However, the s 7(1)(c) purpose would usually be reflected in a higher nonparole period for an offender from whom the community needed to be protected, rather than a very low nonparole period in the case of an offender from whom the community needed little protection.
The manner in which the primary judge fixed the nonparole period involved error, with the result that the nonparole period lacks an “appropriate relationship” to the total sentence.
Re-sentencing
We acknowledge that, where sentencing error is identified, it is necessary to exercise the sentencing discretion independently and afresh, taking into account the purposes of sentencing and the other matters that the Sentencing Act requires to be taken into account: SCA ss 37O(1)(b) and 37O(7); Kentwell at [42] per French CJ, Hayne, Bell and Keane JJ.
We arrive at the same starting points for the head sentences as the primary judge. In reaching those starting points, we have taken into account the maximum penalties, relevant sentencing purposes (including the purposes of just and appropriate punishment and general deterrence), relevant matters under s 33 of the Sentencing Act and outcomes in the comparable cases to which we were taken. The primary judge referred to all relevant matters and we respectfully adopt her Honour’s reasons.
The application of a s 35 discount of 17 per cent results in individual sentences that we consider to be appropriate.
However, we would accumulate the sentences in a manner that differs slightly from the manner in which the primary judge accumulated them to achieve a total sentence that, in our view, reflects the total criminality.
The offender’s general good character and the low prospects of re-offending mean that it is important to promote his rehabilitation by fixing a nonparole period that is relatively low, but still bears an appropriate relationship to the total sentence and does not undermine the sentencing purposes of punishment, general deterrence and recognition of harm to the victims. We would fix the nonparole period at 50 per cent of the total sentence.
Orders
The appeal is allowed.
The sentences imposed by the primary judge are set aside.
The respondent is re-sentenced as follows:
(a)Count 1 1 year and 8 months’ imprisonment from 21.06.16 – 20.02.18
(b)Count 2 2 years and 6 months’ imprisonment from 21.09.16 – 20.03.19
(c)Count 3 2 years and 6 months’ imprisonment from 21.12.16 – 20.06.19
(d)Count 4 2 years and 6 months’ imprisonment from 21.03.17 – 20.09.19
(e)Count 5 3 years and 4 months’ imprisonment from 21.12.17 – 20.04.21
(f)Count 6 2 years and 6 months’ imprisonment from 21.12.19 – 20.06.22
The total sentence is 6 years’ imprisonment.
We set a nonparole period of 3 years’ imprisonment, from 21 June 2016 to 20 June 2019.
| I certify that the preceding [114] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 22 March 2017 |
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