Saad v R

[2007] NSWCCA 98

New South Wales
Court of Criminal Appeal

CITATION:	Saad v R [2007] NSWCCA 98 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	02/04/2007
JUDGMENT DATE:	18 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 2; Hoeben J at 6
DECISION:	Leave to appeal granted; appeal dismissed.
CATCHWORDS:	Sentence appeal - discount for plea of guilty - whether plea made at earliest opportunity - effect of finding of special circumstances.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Heron v Regina [2006] NSWCCA 215 Holloway v McFeeters (1956) 94 CLR 470 at 477 Markarian v The Queen (2005) HCA 25 R v Simpson (2001) 53 NSWLR 704 R v Stambolis [2006] NSWCCA 56 Stanford v Regina [2007] NSWCCA 73 Veen v The Queen (No 2) (1988) 164 CLR 465 at 477
PARTIES:	Ashley Saad - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2007/7
COUNSEL:	Mr J Doris - Applicant Mr W Dawe QC - Respondent Crown
SOLICITORS:	Gregory Meakin - Applicant S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0230
LOWER COURT JUDICIAL OFFICER:	Sides DCJ
LOWER COURT DATE OF DECISION:	13 July 2006

2007/7

McCLELLAN CJ at CL
HULME J
HOEBEN J

Wednesday 18 April 2007

Ashley SAAD v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HULME J: I agree with the orders proposed by Hoeben J and with his Honour’s reasons. I would add merely the following.

3 It is not clear from Sides DCJ’s observation “The offender is entitled to have his pleas of guilty taken into account to reflect both the utility of those pleas and contrition” whether his Honour intended to make any finding that there was contrition. There was in fact no evidence which would justify such a finding. In Holloway v McFeeters (1956) 94 CLR 470 at 477 Dixon CJ said:-

“(An) inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them”. (My emphasis)

4 The Applicant could reasonably have expected his sentence to be lower than it otherwise would have been if he pleaded guilty. Furthermore, the plea seems to have operated to induce the Crown to not press two of the counts on the indictment and it is reasonable to infer that that course was negotiated before the plea was entered.

5 These concrete benefits are far more probable reason for the Applicant’s plea than contrition, particularly in light of the Applicant’s criminal history and the absence of any evidence of contrition apart from the plea. However, it is unnecessary to go that far. His Honour was not entitled to draw an inference of contrition unless it was more probably the inspiration for the plea then either or both of the factors mentioned in the immediately preceding paragraph. There was no basis for so concluding.

6 HOEBEN J:

Offences and sentence
On 12 July 2006 the applicant was to stand trial on an indictment containing four counts. Counts 2 and 4 were expressed to be in the alternative to counts 1 and 3 respectively. Before the trial commenced the applicant entered pleas of guilty to the alternative counts, 2 and 4 on the indictment as follows:

(a) That on 14 November 2005 at Redfern in the State of New South Wales (the applicant) possessed a loaded firearm in a public place, namely, the foyer area and entrance of a residential unit block in Moorehead Street.

(b) That on 14 November 2005 at Redfern in the State of New South Wales (the applicant) assaulted Stephen Buttel.

7 The offence in count 2 was contrary to s93G(1)(a)(i) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years.

The offence in count 4 was contrary to s61 Crimes Act 1900 for which the maximum penalty is imprisonment for 2 years.
The pleas of guilty were accepted by the Crown in full discharge of the indictment.

8 The sentence proceedings were heard by Judge Sides QC on 13 July 2006. His Honour passed the following sentences.

(a) Count 2 – imprisonment with a non-parole period of 3 years commencing on 14 November 2005 and expiring on 13 November 2008 with a balance of term of 1 year to expire on 13 November 2009.

(b) Count 2 – imprisonment for a fixed term of 8 months to commence on 14 November 2005 and to expire on 13 July 2006.

Factual background

9 A Statement of Agreed Facts, pursuant to s191 of the Evidence Act 1995 was placed before his Honour. The offences occurred in the foyer of a Housing Commission block of units. There were two lifts in the foyer, the block was sixteen storeys high and comprised a total of 192 units.

10 Constable Buttel from Redfern Police Station was aware that the applicant was wanted by Bankstown Police for a matter. He was familiar with the applicant, having spoken to him on several occasions. At 6.20pm on 14 November 2005 he and another police officer, Sergeant Peebles, were parked in Young Street about 100 metres from the rear car-park of the block of units when he saw a male whom he recognised as the applicant alight from a car. As Constable Buttel and Sergeant Peebles drove towards the applicant, he ran into the foyer of the block of units.

11 Constable Buttel yelled “Police, stop there!”. The applicant kept running towards a lift with a female who was accompanying him. Constable Buttel entered the lift and approached the applicant who pushed his shoulder with both hands causing Constable Buttel fall backwards to the door of the lift. The applicant began swinging his arms towards Constable Buttel and the female began screaming. Constable Buttel took hold of the applicant and said “You’re under arrest”. At this stage the applicant began screaming and became hysterical. Constable Buttel tried to remove the applicant but he resisted. The scuffle continued with the female trying to get between the applicant and Constable Buttel.

12 Sergeant Peebles then entered the lift and assisted in getting the applicant out of the lift and into the foyer. The applicant continued to thrash around with his arms and legs. The female screamed and again tried to place herself between the police officers and the applicant. As Constable Buttel wrestled with the offender, attempting to get him on to the ground so that he could be handcuffed, he heard Sergeant Peebles say “Gun, gun”. Constable Buttel looked down and saw a black and silver pistol just behind the applicant. He took hold of the applicant, pulled him towards himself, lifted him up and forced him to the ground face first. He then handcuffed the applicant and told him he was under arrest.

13 Other police thereafter became involved. They looked after the pistol. The pistol was examined for fingerprints but none were found. Samples from the pistol were sent for DNA testing, but no DNA could be identified from the samples tested. A ballistics expert examined the pistol. The pistol he examined was a 7.6 mm calibre, Browning self-loading pistol. The pistol was tested and found to be in working order. The ballistics expert found that the pistol was capable of propelling a projectile that could inflict a lethal wound. The bullets found in the magazine were suitable for use in a pistol. The applicant was not the holder of a firearms licence or permit and the pistol was not a registered firearm.

Remarks on sentence

14 In relation to the applicant’s pleas of guilty, his Honour said:

“The offender is entitled to have his pleas of guilty taken into account to reflect both the utility of those pleas and contrition. Discount given on this basis must be discernible.
The plea of guilty was entered on the day the matter was fixed for trial, following an adjournment from earlier in the week. Counsel had come into the matter late which led to the matter not proceeding on the Monday. Whilst there is utility in the plea of guilty, that utility is not as great as when an offender pleads guilty in the Local court or upon arraignment in this Court.
The evidence the Crown had available to it for the purposes of the trial, in the court’s assessment, amounted to a strong Crown case, however, that is not the only matter to be considered on the issue of contrition. Little evidence has been given in relation to the issue of contrition and it is difficult for the court to conclude that anything other than the plea of guilty has indicated that contrition. To the extent that there is contrition, it has been reflected by way of reduction of penalty.” (ROS 1-2)

15 Having reviewed the facts his Honour concluded that although the weapon was easily concealable and the applicant had no lawful purpose for being in possession of it, at no stage did the applicant use or attempt to use the weapon during the course of his struggle with the police officers.

16 In relation to subjective matters, his Honour noted that the applicant was twenty four years of age, having been born on 3 September 1981. He had a good work history and had a job to go to when released from custody. His father suffered from serious health problems having undergone a double heart bypass operation in December 2005. His mother also had health problems, suffering from hypertension and early heart failure. She had difficulty in walking.

17 His Honour had before him a short report from the applicant’s general practitioner, Dr Fitzroy-Mendis. She had been treating the applicant for five years and diagnosed him as suffering from chronic depression, anxiety disorder, social phobia, easy agitation and panic attacks. She went on to say in that report:

“Last year I was told by him that he was trying various drugs and was in the process of arranging a rehabilitation program when he was arrested. I intend helping him when he is out of prison.”

18 His Honour interpreted that somewhat enigmatic observation as a reference to the applicant experimenting with illegal drugs and that he was intending to enter a program to deal with that problem.

19 His Honour noted that the applicant had a record of previous offences which included three offences of intimidating a police officer and one of possession of a prohibited weapon. There were also a number of offences for possession of prohibited drugs. In March 2003 he was sentenced to imprisonment with a non-parole period of 12 months for possessing an unauthorised firearm (a pistol).

20 His Honour was unable to make any reliable assessment of his prospects of rehabilitation. On the positive side there was the availability of a job and his intention to undertake rehabilitation for his drug problem. On the negative side there were prior offences, including one serious offence of a similar kind, ie the possession of an unauthorised firearm. His Honour thought that the evidence as to the applicant’s mental health was so scant as to not permit the court to make an assessment of what part, if any, it played in the commission of the offences and what impact it might have in connection with his rehabilitation.

21 In relation to the objective seriousness of the offence his Honour noted the maximum penalty as being indicative of the seriousness with which the community regarded the offence. General deterrence was an important consideration with offences of this kind. His Honour also took into account personal deterrence in that the applicant had already been convicted of a similar offence in 2003. His Honour was unable to make a reliable assessment of whether or not the applicant was likely to re-offend.

22 Although the offences were quite separate in nature, his Honour ordered that the sentences be served concurrently. He said that he did so in order to have regard to the principle of totality. His Honour then said:

“The court has concluded, with some reservation, that it is a matter where the court can find special circumstances being his mental health and his desire to address his drug use.”


His Honour then passed the sentences to which reference has already been made. The applicant did not give evidence in the sentence proceedings.

Appeal
Ground of Appeal 1: The learned judge erred in his approach to the question of discounting the sentence for possession of a loaded firearm.

23 It was submitted that because a fresh indictment was not filed until 12 July 2005 it was not possible for the applicant to enter a plea of guilty to the alternative offences (counts 2 and 4) until the fresh indictment had been filed. That being the case, the applicant’s pleas of guilty should have been regarded by the sentencing judge as having been entered at the earliest time.

24 Reliance was placed on the decision of this Court in Stanford v Regina [2007] NSWCCA 73 at [84] where Rothman J said:

“84 The only other matter to which I will make reference that is agitated under these grounds is the issue associated with the plea of guilty. The sentencing judge referred to the plea of guilty and the timing of it. The applicant pleaded not guilty on 13 September 2005 to an indictment containing six counts, one of which was an offence under s93GA of the Crimes Act 1900 (NSW). On 7 November 2005, the date otherwise set down for trial, the applicant pleaded guilty to the four charges, one of which was the offence under s93G, in lieu of the offence under s93GA. The applicant could have pleaded guilty to the offences, which were being pressed on 7 November 2005, except the s93G offence. However, given the alteration to the charge, the earliest time in which he could have pleaded guilty to all of the offences (and only those offences) for which he was sentenced was 7 November 2005, the date on which he pleaded.”

25 In order to test this submission it is necessary to compare the original indictment with the fresh indictment filed on 12 July 2006. The original indictment was in identical terms to the fresh indictment except that count 2 was not expressed as an alternative to count 1 but as an additional charge. That of itself, it seems to me, distinguishes this case from that referred to by Rothman J in Stanford where the offence contrary to s93GA was changed to an offence contrary to s93G Crimes Act 1900.

26 In view of that circumstance I do not see how the applicant’s pleas of guilty to the alternative counts on the day fixed for the commencement of the trial could be regarded as having been made at the earliest time. As his Honour said, there was nothing to stop the applicant entering a plea of guilty in the Local Court or on arraignment to counts 2 and 4 thereby putting the Crown to its election as to whether it wished to proceed with count 1 in those circumstances. The utility of a plea of guilty being entered on the first day of trial when all Crown witnesses have been arranged, a jury panel assembled and all other steps completed for the conduct of the trial is significantly reduced.

27 The comments of Howie J in R v Stambolis [2006] NSWCCA 56 are apposite:

“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 provide a basis for asserting that the plea was made at the first reasonable opportunity.”

28 In oral submissions it was submitted that although his Honour referred to a discount for the applicant’s plea of guilty and for his contrition his Honour did not identify the amount of the discount and it was not discernible from his Honour’s reasoning or from the sentence itself that his Honour had given the applicant the benefit of a discount.

29 In support of that proposition reliance was placed upon Stanford v Regina where Rothman J said:

“87 His Honour, although referring to the judgment of this court in Ponfield , supra , concerning the necessity for the discount for a plea of guilty to be discernible, nevertheless imposed a sentence which does not quantify, either expressly or by implication, the discount that has been applied for the plea of guilty. Nor does his Honour discuss where in the range of 10 to 25 percent the discount should fall, either by reference to a percentage or by reference to the relative utilitarian value of the plea. The applicant is left to guess as to the level, if any, of the discount granted. Such an approach is not consistent with the kind of transparency required by s22 and referred to in the authorities.”

30 That criticism is not appropriate to his Honour’s approach in this case. It is true that his Honour did not specify a percentage. He did, however, make it clear how he regarded the relative utilitarian value of the plea. His Honour found it to be towards the bottom of the range. I agree. In percentage terms the highest at which the discount for the utilitarian value of the plea could be assessed would be 10 percent and even that would be generous in favour of the applicant. Insofar as any discount for contrition was concerned there was, as his Honour pointed out, no evidence of any contrition other than the plea of guilty which of itself was of limited value. Any discount for contrition would be well and truly included in a discount of up to 10 percent for the utilitarian value of the plea of guilty.

31 While this Court has said on a number of occasions that in the interests of transparency it is desirable that sentencing judges should specify the extent of any discount for the utilitarian value of a plea of guilty it is not error for a judge to fail to mathematically quantify such a discount provided it is taken into account. (Markarian v The Queen (2005) HCA 25). Given the circumstances of this case and his Honour’s express reference to the discount and its limited utilitarian value, I am satisfied that his Honour did take it into account in formulating his sentence and that the applicant did obtain an appropriate discount for his plea of guilty.

32 This ground of appeal has not been made out.

Ground of Appeal 2: The learned judge, having found “special circumstances” failed to reflect that finding in the actual sentence imposed.

33 It was submitted that because his Honour had found special circumstances, it was necessary for his Honour to reflect that finding by altering the statutory ratio provided by s44 of the Crimes (Sentencing Procedure) Act 1999. This could be effected by the provision of a longer balance of term than was actually imposed or alternatively, a reduction in the non-parole period. By failing to do either, it was submitted, his Honour had fallen into error.

34 The basis for his Honour’s finding of special circumstances is somewhat tenuous. The fact of mental health problems was referred to in a five line report of the applicant’s general practitioner but no nexus between it and the offence and any rehabilitation of the applicant was established. The fact of his drug use and his desire to rehabilitate himself was again referred to in rather enigmatic terms in that same short report. It is not without significance that the applicant did not give evidence so that there was no other basis upon which his Honour could make a finding of special circumstances.

35 A similar situation was considered by the Court in Heron v Regina [2006] NSWCCA 215 where I said:

“31 Just because a finding of special circumstances is made, does not mean that a judge must vary the statutory ratio. Where a finding of special circumstances is made, however, it seems to me that the sentencing judge ought give some reasons why the statutory ratio is not being varied despite such a finding. The variation here was so small as to not amount to an allowance for special circumstances and no reasons were given by his Honour for adopting that approach.
32 It seems to me that the sentence as ultimately fashioned, did not adequately reflect the finding of special circumstances made by his Honour and which was certainly warranted. There does seem to have been some error in his Honour’s mathematics in his final formulation of the sentence.”

36 Given the rather problematic basis for the finding of special circumstances, I can well understand why his Honour would decline to make any adjustment to the s44 statutory ratio between the non-parole period and the balance of term. Nevertheless, as explained in Heron, if his Honour proposed to follow that course, he should have given reasons why the statutory ratio was not being varied. I am of the opinion that error has been established in that regard.

Conclusion

37 For this Court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that “some other sentence … is warranted in law and should have been passed” – subsection 6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100].

38 I am not satisfied that some other sentence is warranted in law and should have been passed. As his Honour pointed out, the carrying of a concealed weapon such as a pistol is a very serious offence and is so regarded by the community. There was also the complicating factor that this is the second time within a comparatively brief period that the applicant has been convicted of a similar serious offence. As was made clear in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477:

“ The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

39 Those last strictures apply to the applicant. His criminal record shows a continuing attitude of disobedience of the law in matters of this kind. This required that the sentence ultimately imposed be of such severity as to ensure retribution and deterrence, both personal and general, and the protection of society. It follows that to reduce the sentence below that passed by his Honour would, in my opinion, be contrary to s6(3) in that the sentence so adjusted would be so lenient as to fall below the applicable discretionary range.

40 The orders which I propose are:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

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27/04/2007 - wrong date on judgment - Paragraph(s) not applicable