Woodland v The King

[2023] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Woodland v R [2023] NSWCCA 216

Hearing dates:

21 August 2023

Date of orders:

30 August 2023

Decision date:

30 August 2023

Before:

Beech Jones CJ at CL at [1];
Dhanji J at [5]; and
Chen J at [77].

Decision:

(1)    Appeal allowed.

(2)    The sentence imposed in the Drug Court on 5 May 2023 is quashed.

(3)    The appellant is sentenced to a term of imprisonment of 14 months with a non-parole period of 9 months to date from 11 December 2022. The non-parole period will expire on 10 September 2023. The total term is due to expire on 10 February 2024.

Catchwords:

CRIME – appeals – appeal against sentence imposed in the Drug Court – whether early pleas of guilty taken into account – whether irrelevant consideration taken into account when assessing objective seriousness – appeal allowed – appellant resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Drug Court Act 1998 (NSW)

Crimes Act 1900 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Borri v R [2023] NSWCCA 166

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086

Edwards v R [2017] NSWCCA 160

Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lee, Matthew v R [2016] NSWCCA 146

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Towney v R [2022] NSWCCA 289

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Zeiser v R [2020] NSWCCA 154

Category:

Principal judgment

Parties:

Mary Lee Woodland (Appellant)
Rex (Respondent)

Representation:

Counsel:
S Howell (Appellant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2023/149570

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Drug Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 January 2023

Before:

Senior Judge Mottley; Judge Guy

File Number(s):

2022/00000251

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mary Lee Woodland, pleaded guilty and was sentenced in the Drug Court for an offence of take and drive a conveyance without consent and two offences of drive motor vehicle while disqualified. The appellant received an initial aggregate sentence of 1 year and 9 months imprisonment, which was suspended to enable her to participate in the Drug Court program. The appellant’s program was terminated as a result of repeated non-compliance, and the appellant appeared for her final sentence, where the initial sentence was confirmed, and a non-parole period of 1 year was imposed.

The appellant advanced three grounds: first, that the sentencing judge/s failed to take into account the appellant’s early pleas of guilty, or alternatively failed to explain in the remarks on sentence how the guilty pleas were accounted for; second, that the sentencing judge/s took into account an irrelevant consideration when assessing the objective seriousness of the take and drive conveyance without consent offence; and third, that the aggregate sentence imposed was manifestly excessive.

The Court (Dhanji J with Beech Jones CJ at CL and Chen J agreeing) held, granting the appeal, quashing the appellant’s sentence, and resentencing the appellant:

As to ground 1:

Per Dhanji J (Chen J agreeing; Beech-Jones CJ at CL agreeing as to the principles but disagreeing as to the conclusion):

1. The question is whether the Court is “affirmatively satisfied that the [appellant’s] plea was taken into account and an appropriate discount allowed”: at [43]; (Beech-Jones CJ at CL agreeing at [2]).

Lee, Matthew v R [2016] NSWCCA 146 at [37], applied, Borri v R [2023] NSWCCA 166 at [36]-[45]; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14], considered.

2. Subjective assessments about the degree of experience of the sentencing judge are irrelevant: at [49]; (Beech-Jones CJ at CL, agreeing at [2]).

Per Dhanji J (Chen J agreeing, Beech-Jones CJ at CL contra):

3. Given the significance of the discounting of a sentence for the utilitarian value of a plea of guilty as a distinct second step in the process of sentencing, and in the absence of any reference to the fact of the plea of guilty, its timing, or its significance, the Court cannot exclude the possibility that, even if it was taken into account in some way, it was not properly taken into account: at [51].

Per Beech-Jones CJ at CL:

4. Given that the entry of a plea of guilty is a condition of entry into the Drug Court program, and the indicative sentences that were proposed, it was a common assumption of the sentencing proceedings and judgment that the appellant would be receiving a 25% discount on account of her plea of guilty: at [2].

As to ground 2:

Per Dhanji J (Beech-Jones CJ at CL and Chen J agreeing):

5. Error was established by the sentencing judge sentencing the appellant on the basis that the vehicle had not been recovered, in circumstances where her Honour had earlier accepted that there was no evidence as to whether the vehicle had been recovered or not: at [54].

As to ground 3:

Per Dhanji J (Beech-Jones CJ at CL and Chen J agreeing):

6. As error was established, it was not necessary to address whether the aggregate sentence was manifestly excessive: at [55].

As to the admission of further evidence on resentence:

Per Dhanji J (Chen J agreeing; Beech-Jones CJ at CL contra):

7. In the present context, the power to admit evidence on resentence for an appeal under s 5AA of the Criminal Appeal Act 1912 (NSW) should operate in a manner similar to that which occurs in an appeal pursuant to s 5(1) of the Criminal Appeal Act 1912: at [63].

Per Beech-Jones CJ at CL:

8. It is not necessary to decide whether further evidence can be admitted on an appeal such as this if error in the sentencing process at first instance is established: at [3].

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Dhanji J.

2. In relation to ground 1, for the reasons explained by his Honour, whether or not the ground is upheld turns on whether, even though there is no reference to the appellant’s plea in the sentencing judgment, this Court is “affirmatively satisfied that the [appellant’s] plea was taken into account and an appropriate discount allowed” (Lee, Matthew v R [2016] NSWCCA 146 at [37] per Basten JA and McCallum J). I agree with Dhanji J that subjective assessments of the degree of experience of the sentencing judge are irrelevant to answering that question (although there is no doubt that the sentencing judge in this case is very experienced). However, I respectively disagree with Dhanji J about the fate of this ground. Given that the entry of a plea of guilty is a condition of entry into the Drug Court program (Drug Court Act 1998 (NSW), s 5(1)(c)) and the indicative sentences that were proposed, I am satisfied that it was a common assumption of the sentencing proceedings and judgment that the appellant would be receiving a 25% discount on her account of her plea of guilty.

3. Nevertheless, I agree with Dhanji J in relation to ground 2 of the application for the reasons his Honour gives. As a consequence, it is not necessary to address ground 3. In relation to re-sentence, I agree with the sentence proposed by his Honour and the reasons for that sentence, save that I do not consider it necessary to decide whether further evidence can be admitted on such an appeal as this if error in the sentencing process at first instance is established. I would impose the sentence suggested by Dhanji J based on the material available at first instance.

4. I agree with the orders proposed by his Honour.

5. DHANJI J: The appellant, Mary Lee Woodland, appeals, pursuant to ss 5AF(3)(b) and 5AA of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on her by Judge Guy in the Drug Court at Parramatta on 5 May 2023.

6. The appellant pleaded guilty and was sentenced for the following three offences, dealt with by the Drug Court exercising Local Court jurisdiction under s 24(1)(b) of the Drug Court Act 1998 (NSW):

Seq 1: take and drive conveyance without consent of owner contrary to s 154(1)(a) of the Crimes Act 1900 (NSW) (maximum penalty of 5 years imprisonment);

Seq 2: drive motor vehicle during disqualification periods (second or subsequent offence) contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) (maximum penalty of 12 months imprisonment or a fine of $5,500 or both); and

Seq 3:    drive motor vehicle during disqualification period (second or subsequent offence).

7. Sequence 1, an offence against s 154A of the Crimes Act, while commonly charged in the terms used above is, according to the section, an offence of deemed larceny of a motor vehicle. I will use this expression rather than the somewhat quaint expression “take and drive conveyance”. I will maintain the use of “deemed” which distinguishes the offence from the more serious offence against s 154F of the Crimes Act.

8. The appellant pleaded guilty before the Local Court and was referred to the Drug Court pursuant to s 6 of the Drug Court Act. She was accepted by the Drug Court. This required the Drug Court to impose what is commonly described as an “initial sentence” pursuant to s 7A of the Drug Court Act. Accordingly, on 17 January 2023, Senior Judge Mottley imposed, as an initial sentence, an aggregate term of 1 year and 9 months imprisonment. Her Honour did not set a non-parole period: Drug Court Act, s 7A(4). The indicative sentences were as follows:

Seq 1:   18 months imprisonment;

Seq 2:   6 months imprisonment; and

Seq 3:   6 months imprisonment.

9. Senior Judge Mottley also disqualified the appellant from driving for 6 months, effective from the date of the initial sentence.

10. The initial sentence was suspended on 17 January 2023, in accordance with s 7A(5) of the Drug Court Act, and the appellant commenced the Drug Court program. However, as a result of repeated non-compliance, the appellant’s program was terminated on 7 March 2023. This required the Drug Court to reconsider the appellant’s initial sentence and impose a final sentence: Drug Court Act, ss 12(1) and 12(3). This was to be done having considered the matters in s 12(2), which include an offender’s participation in the program, any sanctions imposed during the course of the program, and time spent in custody during the program in connection with an offence to which the offender’s program related. The appellant appeared for final sentence before Judge Guy on 5 May 2023. On that date, his Honour confirmed the aggregate sentence of 1 year and 9 months imprisonment initially imposed by Senior Judge Mottley, pursuant to s 12(3) of the Drug Court Act, and set a non-parole period of 12 months. To allow for pre-sentence custody and time in custody imposed as sanctions while on the program, the sentence was ordered to commence on 11 December 2022. The non-parole period is therefore due to expire on 10 December 2023 and the total sentence is due to expire on 10 September 2024.

11. The appellant appeals on the following grounds:

“(1)    The sentencing judge/s;

(a)    failed to take into account the [appellant’s] early pleas of guilty: or, in the alternative,

(b)    failed to explain in the sentencing remarks how the [appellant’s] early pleas of guilty were accounted for.

(2)    The sentencing judge/s took into account an irrelevant consideration in assessing the objective seriousness of the [appellant’s] offence of take and drive conveyance without consent of owner.

(3)    The aggregate sentence imposed on the [appellant] is manifestly excessive.”

12. While the appellant’s appeal is from the final sentence imposed by Judge Guy, both of the appellant’s complaints of specific error focused on the reasons for the initial sentence imposed by Senior Judge Mottley. This was because the final sentencing effectively adopted the reasons for initial sentencing. Thus, any errors made in the imposition of the initial sentence were effectively incorporated into the final sentence.

The nature of the appeal

13. Section 5AF(1) of the Criminal Appeal Act provides that s 5AA of the Criminal Appeal Act applies to, inter alia, a final sentence imposed by the Drug Court pursuant to s 12 of the Drug Court Act. Section 5AA of the Criminal Appeal Act provides for an appeal as of right. The appeal is an appeal in the strict sense: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96].

14. Section 5AF(3) provides that an appeal against a sentence for an indictable offence is to be heard “by such [two] or [three] judges of the Supreme Court as the Chief Justice may direct”. An appeal against a sentence for a summary offence is to be heard “by such single judge of the Supreme Court as the Chief Justice may direct unless the judge … considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice … in which case the appeal is to be heard and determined by such [three] or more judges of the Supreme Court as the Chief Justice may direct”.

15. In the present case, the offence of deemed larceny of a motor vehicle is an indictable offence, albeit it was dealt with summarily. The offences of driving whilst disqualified are summary offences. The result is that while the Drug Court was exercising summary jurisdiction with respect to all offences, an appeal against a sentence imposed for the deemed larceny of a motor vehicle offence would ordinarily be to two or three judges of this Court, while an appeal against sentence for offences of driving whilst disqualified would be to a single judge. The appeal in the present case, is, however, not against a sentence imposed, at least exclusively, for any of the offences, as it is an aggregate sentence. Alternatively, it is a sentence for both indictable and summary offences. Clearly, s 5AF(3) of the Criminal Appeal Act would make more sense if it were directed not to the nature of the offence (indictable or summary) but to the nature of the jurisdiction being exercised. In the present matter, the necessary notifications and directions were given to constitute the Court as a full-court comprising Beech-Jones CJ at CL, Chen J and myself in relation to both the indictable and summary “sentences”. No issue was taken with the jurisdiction of the Court as constituted. It would be a most surprising result if the Court were to be denied jurisdiction as a result of the somewhat arbitrary decision to impose an aggregate sentence rather than individual terms. I am satisfied that the Court, constituted as a full-court, and the necessary notifications and directions having been given, has jurisdiction to deal with the aggregate sentence.

Factual background

16. The following summary is derived from the police facts and the remarks on initial sentence of Senior Judge Mottley.

Sequence 1 – deemed larceny of a motor vehicle

17. On 20 April 2022, the appellant met the victim through mutual friends. At around 12:02 am on 21 April 2022, the appellant and the victim drove to Meriton Suites at North Ryde in the victim’s Jeep, where they went to a room and met some mutual friends. At around 2:49 am, while the victim was asleep, the appellant took possession of the victim’s keys to the Jeep and drove the car away from the Meriton Suites, without the victim’s permission.

18. The victim woke at around 4:00 am and realised his car keys were missing and was told that the appellant had taken his Jeep. The victim contacted the appellant and asked for the Jeep to be returned. The appellant told the victim she would return the vehicle, however, this did not occur. The appellant then sent text messages to the victim stating, “impossible … stop being unreasonable or I’ll burn the fkn thing” and “[u]r lucky I’m agreeing to give it back I never give cars back EVER”.

19. The victim reported the matter to police on 23 April 2022, and on 13 June 2022, the appellant was arrested. Upon her arrest, the appellant told the police that she took the victim’s vehicle because she was in a state of panic due to advances made by the victim. She stated that she drove the vehicle to an address in Parramatta to her friend “Sarah” but was unable to give police the details of that address. The appellant told police that she told “Sarah” to return the Jeep. The agreed facts stated, “it was established that ‘Sarah’ did not know the victim and could not return the [Jeep] based on the information provided by the [appellant]”.

Sequence 2 – drive while disqualified

20. At the time the appellant drove the victim’s Jeep, she was disqualified from driving for 12 months effective from 2 September 2021.

Sequence 3 – drive while disqualified

21. On 26 August 2022, the police, while conducting patrols in the Guildford area, noticed a Toyota Camry with a man sitting in the front passenger seat start its engine and speed off. The police attempted to catch up to the vehicle and upon finding it parked, found the appellant sitting in the driver’s seat as the sole occupant. At the time she was located by police, the appellant was disqualified from driving for 12 months effective from 2 September 2021.

Proceedings in the Drug Court

22. The appellant initially failed to appear at the Local Court as required on 14 October 2022. A warrant was executed, and the appellant was refused bail. The appellant was then referred to the Drug Court and was accepted into the program.

Initial sentence

Proceedings on initial sentence

23. The appellant appeared before Senior Judge Mottley for an initial sentence hearing on 17 January 2023. The Crown material comprised the police facts, the appellant’s criminal history, custodial history, and traffic offence history.

24. No material was tendered on behalf of the appellant and the appellant did not give evidence. However, the appellant’s counsel, in submissions, indicated that the appellant was an Indigenous woman with a background of profound disadvantage, including that her father spent time in custody and her mother struggled with a heroin addiction, and that she, as a result, spent time in the foster care system from the age of 3 to 21, where she experienced abuse from the age of 3 to 10 (although I note the evidence on the appeal suggests she went to a safe foster home at age 6). Counsel also told the Court about the appellant’s work history, her history of substance abuse including cannabis from the age of 15 and ice for around 4 years, her loss of contact with her children, and her desire to reconnect with them. Counsel also explained that the appellant had good family support, including the support of her father, sister, and partner.

Remarks on initial sentence

25. In ex-tempore reasons, Senior Judge Mottley found the objective seriousness of the deemed larceny of a motor vehicle offence to be “about the mid-range”. In making that assessment, her Honour noted the “wilful course of conduct” on the part of the appellant, the fact the “vehicle has never been recovered”, and the consequences for the victim, discussed in more detail below. In respect of the offences of drive whilst disqualified, her Honour noted that no explanation had been provided by the appellant regarding the reason for driving or the distance travelled, however, her Honour noted that there was nothing about the manner in which the appellant was driving that created any immediate risk to community safety.

26. The initial sentencing judge considered the appellant’s criminal history spanning 11 years. Her Honour had regard to the fact that the appellant had “no less than four” convictions for driving whilst disqualified on her record and noted that the appellant was on parole when these offences occurred. As a result, Her Honour found that greater weight should be given to personal deterrence.

25. In respect of the appellant’s subjective case, her Honour noted the history provided by the appellant’s counsel, in particular in so far as it raised the principles identified in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. However, her Honour found that, as a result of no evidence being tendered, little weight could be placed on those factors. Nevertheless, her Honour noted the appellant’s age and that the appellant had experienced abuse in foster care and considered her strong family support and her desire to reconnect with her children. Her Honour also noted the appellant’s drug use, and that she was a victim of domestic abuse and had “emotional scars from that abuse”.

26. Her Honour also considered the appellant’s education to year 8, that she was literate, and that she had an employment history, and regarded these as good foundations for success in the Drug Court program. Her Honour also noted that counselling would be important for the appellant to deal with the abuse and trauma she had experienced. Her Honour then imposed the initial sentence as set out above.

Termination of Drug Court program

29. The appellant commenced the Drug Court program, however, her program was terminated on 7 March 2023, pursuant to ss 11(c) and 10(1)(b) of the Drug Court Act. The termination occurred following the failure of the appellant to attend the Drug Court on 21 February 2023. She was arrested pursuant to a warrant issued by the Drug Court on 24 March 2023.

Final sentence

Proceedings on sentence

30. The appellant appeared before Judge Guy on 5 May 2023 for a final sentence hearing. The Crown material comprised the remarks on sentence of the initial sentence, the appellant’s Drug Court program chronology, drug test results, sanctions history, criminal history, custodial history, traffic offence history, and a document setting out the appellant’s time served in custody referable to the offences.

31. The appellant did not tender any material but read a letter in Court. In reading the letter, she explained to the Court that upon her release to complete the Drug Court program, she found herself back with an abusive domestic partner. She told the Court that her ex-partner was “violent and nasty” when it came to her trying to make better life decisions and move away from the lifestyle they were living. She told the Court that she was “remorseful” and accepted “full responsibility for [her] actions” and asked for a “chance in the outside world to do the right thing” so that she still had the opportunity to care for her father, who was ill.

Remarks on sentence

32. Judge Guy noted that the material before him included the initial remarks on sentence and did not summarise the facts or make additional or alternate findings regarding the objective seriousness of the offending.

33. In respect of the appellant’s time during the Drug Court program, Judge Guy noted that the appellant failed to contact services, received a number of sanctions for drug and alcohol use, missed a curfew, and failed to appear before the Drug Court. His Honour noted that the appellant was remorseful for her unsuccessful participation in the program and noted that the appellant described a bad relationship with a former partner as a contributing factor, although she took full responsibility for her failure to complete the program.

34. Judge Guy had regard to what was said by the initial sentencing judge regarding the appellant’s subjective case, including her age, her history of abuse in care, her experience of domestic violence, her poly-drug use, and her strong family support. His Honour agreed that the appellant had good prospects of employment and the necessary skills and capacity to return to normal life. However, having regard to her failure to complete the program, his Honour viewed the appellant’s prospects of rehabilitation as “guarded”.

35. Ultimately, his Honour found that there was “no meaningful engagement” by the appellant in the Drug Court program and found that no discretionary allowance could be made pursuant to s 12(2) of the Drug Court Act, beyond backdating and credit for time served.

36. His Honour made a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) as a result of the appellant’s ongoing drug and emotional issues and varied the ratio of the non-parole period to 60% of the total sentence. His Honour then confirmed the initial sentence, and imposed the non-parole as set out above. As noted above, his Honour backdated the sentence to 11 December 2022, to account for the time already served by the appellant.

Ground 1 – the sentencing judge/s (a) failed to take into account the [appellant’s] early pleas of guilty or, in the alternative, (b) failed to explain in the sentencing remarks how the [appellant’s] early pleas of guilty were accounted for.

The failure to refer to a plea of guilty

37. It was accepted by the Crown in the proceedings on the initial sentence, that the appellant had pleaded guilty to each of the offences and had done so at a time such that she was “entitled to the full utilitarian value of that plea”. No doubt this would have been understood by all concerned to be a reference to a discount to be applied pursuant to s 22 of the Crimes (Sentencing Procedure) Act, in accordance with this Court’s guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. (I note that Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act had no application as the offences were not being dealt with on indictment: Crimes (Sentencing Procedure) Act, s 25A.)

38. No reference was made in her Honour’s reasons for initial sentence to the fact that the appellant had pleaded guilty to the offences, the timing of that plea of guilty, or to any discount allowed on account of that plea of guilty.

39. Section 22(1) of the Crimes (Sentencing Procedure) Act provides:

22    Guilty plea to be taken into account for offences not dealt with on indictment

(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.

40. In R v Thomson; R v Houlton, the following guideline was adopted (at [160]):

“…(i)    A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii)    Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii)    The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary 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.

(iv)    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.”

41. Spigelman CJ’s statement in R v Thomson; R v Houlton that a failure to explicitly state that a plea of guilty has been taken into account will “generally be taken to indicate that the plea was not given weight”, is of significance, but clearly, in its terms, does not mandate the conclusion that the plea was not given weight. It is difficult to see how it could, the conclusion being one of fact to be determined in the circumstances of the particular matter. One of those circumstances is, however, the assumed familiarity of sentencing judges with the guideline and the conclusion likely to be drawn in the absence of reference to a discount being allowed for a plea of guilty.

42. Many years have passed since the decision in R v Thomson; R v Houlton, and, as was pointed out by Hamill J in Borri v R [2023] NSWCCA 166 at [36]-[45], with reference to a number of cases, different conclusions have been reached in cases where a judge sentencing at first instance has failed to make express reference to the discount to be allowed for the plea of guilty. His Honour noted the detailed consideration given to the issue in Lee, Matthew v R [2016] NSWCCA 146 (“Lee v R”).

43. In Lee v R, Basten JA and McCallum J, after analysis of the proper approach to the issue, concluded (at [37]):

“Because the plea is a mandatory consideration (s 22 says the court ‘must take [it] into account’), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error.”

44. See also Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14], where the High Court concluded that the “absence of reasons sufficient to exclude” the possibility of legal error having occurred constituted legal error.

45. At the risk that any further observations are de trop having regard to the analysis in Lee v R and Borri v R, there is, to my mind, some significance in the fact that the particular matter that is asserted not to have been properly taken into account in the sentence, is a plea of guilty. The utilitarian value of the plea of guilty is not considered as part of the instinctive synthesis (or intuitive synthesis: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [132]). Rather, it is considered as a discrete step in the sentencing exercise after the undiscounted sentence has been determined. By way of contrast, an inference that a matter integral to the instinctive synthesis, such as a relevant aspect of the offending conduct, was not taken into account based on a failure to refer to that matter, might be more difficult to draw, particularly where the facts before the sentencing judge and the submissions made clearly exposed to the relevant matter: see Lee v R at [33]-[34]. Where, as here, having undertaken the instinctive synthesis, a separate and discrete step is required, it is, to my mind, significantly easier to draw the inference, potentially in the context of a busy list, that the step was overlooked.

46. In Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816, Hayne J observed (at [130]) that “because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”. Understanding the reasons in this way would suggest that in a case such as the present, the conclusion should be drawn that the plea was not taken into account. However, as the various authorities discussed by Hamill J in Borri v R demonstrate, this is not the uniform approach in the particular context of pleas of guilty.

The present case

47. The ground of appeal has been drawn in accordance with the observations of Basten JA and McCallum J in Lee v R at [20]. The response to the argument was also framed with an eye to what was said by their Honours in Lee v R. The respondent submitted that in the circumstances of this case, an inference can positively be drawn that the pleas of guilty were taken into account and that there was, therefore, on the approach in Lee v R, no material error adverse to the appellant.

48. Indicative sentences of 18 months for the offence of deemed larceny of a motor vehicle, and 6 months for each offence of driving whilst disqualified suggest that if a discount had been applied, the starting points were 2 years and 8 months respectively. A round figure of 2 years as a starting point is unsurprising. Starting points of 8 months, or two thirds of a year, strike me as perhaps unusual, although I would not readily conclude such starting points to be improbable.

49. It was pointed out by the respondent that Senior Judge Mottley, the initial sentencing judge, is a very experienced sentencing judge and would thus not have been likely to have overlooked the significance of the pleas of guilty. I do not regard the experience of the sentencing judge to be a relevant consideration. Whilst there was no challenge to the factual basis of the submission, and it is indeed a matter of which I am aware, making assessments of how experienced the particular judge is, does not strike me as a satisfactory way of resolving issues on appeal. One might ask where the enquiry might stop. That is, would it be permissible to examine a judge’s actual experience or consider areas of expertise? Should a survey be done of the judge’s performance across that experience? Would it be relevant to consider particular matters impacting on the judge’s well-being at the time of sentence? Further, in the present context, the sentencing judge’s experience may equally underscore the judge’s awareness that their failure to make explicit reference to the discount allowed for a plea of guilty will, according to the guideline, generally be taken to indicate that the plea was not given weight: see Edwards v R [2017] NSWCCA 160, referred to in Borri v R at [38].

50. The respondent relied on the absence of complaint at the final hearing that the plea of guilty had not been taken into account on the initial sentence. The short answer to that is that the imposition of a final sentence requires regard to be had to events following the imposition of the initial sentence but is not an opportunity for appellate review of the initial sentence. In any event, this Court could hardly avoid the task now being undertaken by reference to any view formed by the appellant’s advocate on the final sentence, or to the view of the judge determining the final sentence.

51. It is of some significance that the sentencing took place in the Drug Court, where pleas of guilty are a precondition to jurisdiction. That does not, however, mean that the Drug Court is uniformly dealing with early pleas of guilty and uniformly applying a discount of 25%. Indeed, while an early plea of guilty will generally attract such a discount, it is not mandatory. Here, of course, the application of a discount of 25% was not in contest. This, together with the fact that her Honour proceeded to sentence immediately after submissions were made, provide perhaps the strongest basis for an inference that the plea was taken into account. Despite this, however, given the significance of the discounting of a sentence for the utilitarian value of a plea of guilty as a distinct second step in the process of sentencing the appellant, and in the absence of any reference to the fact of the plea of guilty, its timing, or its significance, I cannot exclude the possibility that, even if it was taken into account in some way, it was not properly taken into account.

52. I would uphold ground 1.

Ground 2 – the sentencing judge/s took into account an irrelevant consideration in assessing the objective seriousness of the [appellant’s] offence of [deemed larceny of a motor vehicle].

53. The appellant drew attention to the following aspect of Senior Judge Mottley’s reasons for the initial sentence:

“In relation to the offence of take and drive the conveyance, looking at the circumstances of the offence, it certainly would not be regarded as trivial. You took the keys consciously and drove the vehicle away, consciously knowing you had no permission to do so. When requested to return it, you gave menacing responses. There is no evidence, as I say, as to when or if the vehicle was recovered.

Obviously Mr Scampino has been inconvenienced by not having access to his motor vehicle, which is not for merely days but beyond. When vehicles are taken there can be unforeseen financial circumstances such as finance that might have been secured over the purchase, or lease of the vehicle may be compromised. There could be penalties that are incurred as a result of the unlawful taking of a vehicle. There could be insurance implications.

For many people, owning a motor vehicle represents the most valuable asset they own or will ever own, so the impact on the victim can be quite significant, and recognising the harm done to a victim of such a crime is an important consideration to be taken into account. The Crown are of the view that this offence would fall at about the mid-range and I agree with that assessment, given the fact that there was a wilful course of conduct, the vehicle has never been recovered, and there are those consequences for the victim.”

54. There is no doubt that her Honour was entitled to have regard to potential consequences for victims in assessing the seriousness of the offence charged. There was some debate on the hearing of this appeal as to whether her Honour, in the passage set out above, went further than this and imputed potential adverse impacts to the victims of such offences generally to the victim of the appellant’s offence, in the absence of evidence. Whilst I consider it likely her Honour viewed the matters beyond inconvenience to the victim (which was established) as no more than potentially adverse consequences, it is not necessary to resolve this question. Irrespective of the view taken with respect to those matters, her Honour sentenced the appellant on the basis that the vehicle had not been recovered. While the respondent submitted there was evidence from which an inference could be drawn to support such a finding, it is not possible to reconcile this conclusion with her Honour’s earlier acceptance that there was no evidence as to whether the vehicle had been recovered or not. I am, on this basis, of the view that ground 2 has been established.

Ground 3 – the aggregate sentence imposed on the [appellant] is manifestly excessive

55. Having regard to the view I have taken with respect to grounds 1 and 2, it is unnecessary to resolve this ground.

Resentence

56. Error having been established, it is necessary to resentence the appellant. Whilst it may have been arguable that the failure to take into account the plea of guilty was a discrete error not requiring the re-exercising of the sentencing discretion (Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, and see, for example, in this context, Zeiser v R [2020] NSWCCA 154; Towney v R [2022] NSWCCA 289), no such argument may be made in respect of ground 2. It is therefore necessary to re-exercise the discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Evidence on resentence

57. The appellant relied, for the purposes of resentence, on her affidavit of 1 August 2023, with the exception of three paragraphs which were not pressed. She also relied on an affidavit of her solicitor, subject to one paragraph which was not pressed.

58. The respondent sought to rely on an affidavit from the solicitor with carriage of the matter on behalf of the Director, attaching an email from the police officer in charge of the appellant’s prosecution indicating that, as at 11 August 2023, the victim’s vehicle had not been recovered. The appellant objected to the evidence.

57. As noted above, the appeal is governed by s 5AA of the Criminal Appeal Act and is an appeal in the strict sense. Prior to the amendments made in response to this Court’s decision in Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661, an appeal pursuant to s 5AA was by way of rehearing. Subsections 5AA(3), (3A) and (4) provided:

(3)    Any such appeal is to be by way of re-hearing on the evidence (‘the original evidence’), if any, given in the proceedings before the Supreme Court in its summary jurisdiction.

(3A)    The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of re-hearing on the original evidence and on any fresh, additional or substituted evidence so adduced.

(4)    The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

60. Subsections (3) and (3A) were repealed in 2000, while subs (4) was left intact. Section 5AA(4) was subsequently amended in 2017 and now provides:

(4)   The Court of Criminal Appeal in proceedings before it on an appeal under this section may:

(a)   confirm the determination made by the Supreme Court in its summary jurisdiction, or

(b)   order that the determination made by the Supreme Court in its summary jurisdiction be vacated and:

(i)   make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or

(ii)   order a new trial in such manner as the Court of Criminal Appeal thinks fit.

61. Section 5AA(4) in its current form essentially reflects its original form, subject to the addition of s 5AA(4)(b)(ii), which provides a power to order a new trial. It can be seen that the reference in s 5AA(4) to the “evidence heard on the appeal” was, prior to the 2000 amendments, a reference to the evidence admitted pursuant to s 5AA(3A), which was necessarily “fresh, additional or substituted evidence” admitted pursuant to leave granted on satisfaction of the existence of “special grounds for doing so”.

62. As a result of the amendments in 2000, s 5AA no longer contains an express power to admit evidence on an appeal brought pursuant to the section. However, such a power is implicit in the reference in s 5AA(4)(b)(i) to the “evidence heard on appeal”. In the absence of s 5AA(3A), there are, however, no explicit criteria as to how the power to receive additional evidence is to be exercised.

63. The present context is a sentence appeal, in which s 5AA is applied via s 5AF(1). As this is an appeal in the strict sense against sentence, it is not, at least for present purposes, materially different to an appeal brought pursuant to s 5(1) and determined pursuant to s 6(3). It is noteworthy that s 6(3) similarly provides no guidance as to the criteria for the admission of additional evidence on resentence, beyond perhaps the somewhat difficult mixture of tenses used in that subsection. In my view, at least in the present context, there is no reason to approach the sections differently and the power to admit evidence on resentence should thus operate in a manner similar to that which occurs in an appeal pursuant to s 5(1).

64. As was observed in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, at [14], in the context of s 6(3), the establishment of error in the imposition of sentence “does not, without more, provide a reason for not holding [an] offender” to the forensic choices made at first instance. There is no reason this observation should not equally apply to the respondent. In the present case, had the respondent wished to establish that the vehicle had not been recovered, this was a matter to be established before the sentencing judge. I would not admit the affidavit of the respondent’s solicitor.

65. Before leaving this issue, I note, as an aside, the evidence could, in any event, have only gone so far. While a failure to recover the vehicle would be relevant to the objective seriousness of the offence (and indeed was the basis for the finding of error in ground 2), it would not be permissible to take into account an inference that the appellant intended to permanently deprive the victim of his vehicle. This would be to have regard to a matter which would render the appellant guilty of the more serious offence against s 154F of the Crimes Act.

66. For completeness, I note that the affidavits relied on by the appellant were admitted without objection. The absence of objection was appropriate having regard to the nature of that evidence.

Determination

67. There is little in the facts that could be regarded as mitigating the objective circumstances of the offending. The appellant took and drove the vehicle. Her use of the vehicle appears to have been over at least some days. The situation might be contrasted to a case in which an offender is, for a brief period of time, a passenger in a vehicle taken by another. It was also not suggested there was anything to mitigate the charges of driving whilst disqualified. Against that, there is no suggestion of anything in the appellant’s driving putting the public at risk, although I note that this is not a mitigating factor as had that been the case, additional charges would likely have been preferred. I regard each offence as a reasonably serious example of the offences charged.

68. The appellant is 30 years old. She was 29 years old at the time of the offences. She has a record of some length. That record is no doubt related to the drug problem which led to the appellant’s referral to the Drug Court. The appellant has been dealt with for offences of stealing, property damage, possession of drugs, assault, and breaching apprehended violence orders. All of these matters were dealt with by way of either fines or Community Corrections Orders. The appellant has additionally, prior to the present matters, been convicted of driving whilst disqualified on five occasions. With respect to the first four offences, in addition to licence disqualification, fines were imposed. With respect to the most recent of those offences, on 2 September 2021, she received an Intensive Corrections Order of 8 months, commencing that day and expiring on 1 May 2022. It follows that she was subject to that order when she committed the deemed larceny of a motor vehicle and the first of the driving whilst disqualified offences in April 2022.

69. The appellant has been subject to one prior sentence of imprisonment. On 28 January 2022, the appellant was sentenced to an aggregate term of 12 months imprisonment with a non-parole period of 6 months for offences of supply of a prohibited drug, being carried in a conveyance (which is also a deemed larceny of a motor vehicle), goods in custody, and failing to appear. The sentence was ordered to date from 28 January 2022. The appellant appealed the sentence to the District Court. It appears she was granted bail pending the appeal, with the result that she was released on 7 April 2022. The current offences of deemed larceny of a motor vehicle and the first offence of driving whilst disqualified, were committed on 21 April 2022, a relatively short time after that release to bail. The appellant was arrested in relation to those offences on 13 June 2022, but was not immediately returned to custody. On 5 September 2022, the appellant’s appeal to the District Court was dismissed, and the original sentence confirmed. It appears there was no change to the commencement date, with the result that the non-parole period had already expired on 27 July 2022. The result appears to be that the appellant never served the portion of her non-parole period between 7 April 2022 and 27 July 2022.

70. Significant in the above history is that the appellant was on bail at the time of the offences committed in April 2022, and on parole at the time of the offence of drive whilst disqualified committed in August 2022. Each is an aggravating factor. (I note that, at the time of the second drive whilst disqualified offence in August 2022, the appellant had been arrested in relation to the first of the present offences committed in April 2022, however those matters appear to have been charged by future Court Attendance Notices and the appellant was not on bail.)

71. With respect to the appellant’s prospects of rehabilitation, her failure in the Drug Court program does not engender confidence. The appellant addressed the judge on final sentence directly, seeking to explain that failure. As noted above, she explained that when released to the Drug Court program in 2023, she returned to a dysfunctional relationship in which her attempts to make positive decisions were sabotaged.

72. The material tendered before this Court tends to suggest the appellant has made positive progress in custody. She has been working and has progressed to a CAT2 minimum security classification. The appellant has engaged in an Aboriginal cultural program, which focuses on identity and steps towards positive engagement in the community. The appellant speaks eloquently of a desire to address past wrongs, reconnect with her children, and provide a better life for both herself and her children. The appellant’s foster mother, with whom the appellant lived from the age of six, confirms the appellant’s stated motivations.

73. I accept that the appellant is highly motivated to make changes in her life and, in that vein, to avoid further criminal conduct and return to gaol. The extent to which these motivations will translate into positive action remains to be tested. Looking at the appellant’s record, it is at least hoped that the downturn in her life marked by the recent periods of incarcerations, which commenced in August 2021 when the appellant was 28 years old, have marked the turning point.

74. I propose imposing an aggregate sentence. Periods of presentence custody and time in custody in the form of sanctions whilst on the Drug Court program were taken into account by backdating the final sentence. I propose the same approach. Consequently, the indicative sentences, and the aggregate sentence will be determined without regard to those matters. Balancing the objective gravity of the offences against the subjective circumstances of the appellant, I would have imposed, but for the pleas of guilty, a sentence of 18 months for the deemed larceny of a motor vehicle offence. In relation to the offences of driving whilst disqualified, I would have imposed sentences of 3 months and 4 months respectively. Applying a discount of 25% for the utilitarian value of the pleas, and with some generous rounding, the indicative sentence are as follows:

Seq 1:   12 months imprisonment;

Seq 2:    2 months imprisonment; and

Seq 3:    3 months imprisonment.

75. I propose an aggregate sentence of 14 months. Consistent with the sentence at first instance, I find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act, although the ratio will be less favourable than at first instance. I propose a non-parole period of 9 months. As noted above, I do not propose any adjustment to the commencement date of 11 December 2022.

76. I propose the following orders:

1. Appeal allowed.

2. The sentence imposed in the Drug Court on 5 May 2023 is quashed.

3. The appellant is sentenced to a term of imprisonment of 14 months with a non-parole period of 9 months to date from 11 December 2022. The non-parole period will expire on 10 September 2023. The total term is due to expire on 10 February 2024.

77. CHEN J: I agree with Dhanji J.

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Amendments

11 September 2023 - Headnote - typographical error - 'a' changed to 'at'

Decision last updated: 11 September 2023