Coggan v R [2013] ACTCA 49

Court of Appeal (ACT)|2013-10-30|Before: Murrell CJ, Penfold JJ, Burns J

1. Christopher John Coggan appealed against the sentence imposed on him on 21 December 2012, specifically against the non-parole period on the ground that it was too long.

2. The appellant was sentenced for seven offences, being three burglaries and three associated thefts or attempted thefts, and one offence of going equipped for theft. The burglaries were committed respectively in September 2010, July 2011 and March 2013. The appellant was linked to the first two burglaries by DNA evidence, and was caught in the act in relation to the third burglary. The going equipped offence was committed in conjunction with the last burglary. The first and second thefts involved property valued at $3,800 and $6,800 respectively. All the items sought to be taken in the third burglary were recovered.

(a) that the appellant was on conditional liberty (that is, he was subject to a suspended sentence) at the time of the first burglary;

(b) that the items stolen in the second burglary included five firearms and ammunition, which were given to an unknown male and had not been recovered; and

(c) that the third burglary was committed at 1.45 am on a weekday, a time at which the premises burgled were likely to be, and in fact were, occupied.

(a) at age 41, had a lengthy and significant criminal history, including convictions for 15 other burglaries as well as numerous other offences;

(b) entered early pleas of guilty, but in each case in the face of an overwhelming Crown case;

(c) had a significant history of illicit drug use since early adolescence; and

(d) had made some preliminary steps towards relevant rehabilitation, but had failed to take advantage of earlier opportunities to change his life and gave little cause for confidence in his ability to achieve rehabilitation this time.

5. The sentence imposed by Burns J was structured as follows:

(a) a good behaviour order associated with the previously suspended three-month sentence was cancelled and the three-month sentence was imposed;

(b) concurrent sentences of 21 months and eight months imprisonment (after plea of guilty reductions) were imposed for the first burglary and theft, fully accumulated on the three-month sentence imposed after the good behaviour order cancellation;

(c) concurrent sentences of 27 months and 16 months were imposed for the second burglary and theft, with the burglary sentence to be accumulated so as to add 12 months onto the first burglary sentence;

(d) concurrent sentences of 3 years, 10 months and 6 months were imposed for the last burglary, the attempted theft and the going equipped offence respectively, with the burglary sentence accumulated so as to add two years onto the sentence for the second burglary.

6. Guilty plea discounts of at least 10% were specified for each offence.

7. This gave a total sentence of five years imprisonment, which was backdated to 12 March 2012 to reflect time in presentence custody. Burns J set a nonparole period of three years starting on 12 March 2012 and therefore expiring on 11 March 2015.

Original appeal ground - responsibility for children

8. The appellant's original ground of appeal was that he was the sole parent of his two children, aged 10 and 12, and that the length of his sentence was having a detrimental effect on his son. The basic material about the appellant's children, although presumably not the claim about the effect of the sentence on the appellant's son, was in evidence before Burns J and was presumably considered in accordance with s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT), which refers to "the probable effect that any sentence or order under consideration would have on any of the offender's family or dependents", although it was not mentioned explicitly in his Honour's sentencing remarks.

9. However, it seems that the information was in any case of relatively little significance, given that an addendum to the Pre-Sentence Report indicated that the appellant had been an unsatisfactory carer in various respects, that his children were the subject of Care and Protection orders for the next two years, and that they were, at the time of the appellant's sentencing, safe and happy living with their grandparents. We can find no error in his Honour's approach to this matter.

10. Invited to identify other errors in his Honour's sentencing approach, the appellant pointed to the following matters:

(a) His Honour had failed to take account of the fact that although the appellant's criminal record until the end of the 1990s was very poor, after that he had cleaned up his act and there had been relatively little offending, and no burglaries or thefts, in the following 10 years or so. In particular, the appellant noted that during that period, he had formed a relationship, fathered two children, and in 2004 had been given custody of his children.

(b) He had remained abstinent from heroin for the early part of the period, and apparently resumed significant illicit drug use only after being badly injured in a car accident in 2004.

(c) The appellant mentioned other sentences that he was aware of for burglaries committed by offenders with similar backgrounds to his own, which seemed to have been lighter.

(d) The appellant mentioned his Honour's failure to take account of the burning down of his house while he was in custody before his sentencing.

(e) The appellant mentioned the fact that he had been given only a 10% discount for his pleas of guilty, despite them being recognised as very early (having come, in relation to the most recent burglary, in the Magistrates Court and, in the case of the earlier burglaries, as soon as proceedings were instituted in the Supreme Court by indictment).

11. His Honour's approach to the appellant's criminal record, and to the appellant's relatively crime-free period for the 10 or so years before the earliest of these offences could have been more articulated in more detail, but his Honour's conclusion that the appellant's record did not entitle him to any leniency was open to him, and we do not consider that any error in that approach has been identified.

12. Nor does the fact that other offenders in other jurisdictions have received different, and differently structured, sentences for other burglaries, of itself, establish any error on Burns J's part. Certainly it could not be said that the individual sentences imposed on the appellant were out of the range of sentences available in this jurisdiction for burglaries of the relevant kind. These comparisons do not establish errors on his Honour's part.

13. As to the burning down of the appellant's house, the appellant did not establish the relevance of this incident in his sentencing, and accordingly has not established any error on his Honour's part in relation to that matter.

14. However, we are concerned about the approach to plea of guilty discounts that has seen the appellant receive only 10% discounts for what were undoubtedly early pleas.

15. It is true that s 35(4) of the Crimes (Sentencing) Act provides that:

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.

16. However, there is also authority in this jurisdiction that in determining a plea of guilty discount, utilitarian value may be recognised, even in the face of a strong prosecution case. In Taylor v Bowden [2009] ACTSC 13, a 2009 decision which has been followed in various cases in this jurisdiction and has so far stood unchallenged, Gray J said:

[16] I add that the issue of the prosecution case being "overwhelmingly strong" to which section 35(4) of the Sentencing Act refers, should not, in principle, be an issue when considering the utilitarian value of the plea of guilty. I refer to the remarks of Spiegleman [sic] CJ in R v Thomson; R v Houlton (supra) at [136] and [137]:

136 Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission.

137 In R v Winchester, Hunt CJ at common law related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350):

"...The extent to which leniency will be afforded upon this ground would depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable."

In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.

...

[18] A plea on the utilitarian basis should be evaluated in accordance with the approach propounded by Spiegleman [sic] CJ in R v Thompson; R v Houlton set out above and without reference to the strength of the prosecution case. [citations omitted]

17. As the appellant submitted, he could have insisted on going to trial (indeed, possibly three trials in the circumstances), which would have involved a substantial amount of effort, inconvenience and expense for the investigating authorities, the prosecuting authorities, possibly the Legal Aid office, and certainly the Magistrates Court and this Court, as well as the victims of the offences and possibly three juries. The benefits are greatest for all these agencies when pleas of guilty come in the Magistrates Court. For sparing the criminal justice system that degree of inconvenience, the appellant suggested, a 10% discount seemed inadequate.

18. In sentencing remarks made last year in the matter of R v Howard (SCC 267 of 2010, 22 November 2012), Penfold J made the following comments in response to a submission that there should be only a very minor sentencing reduction where there had been a very late plea:

It is necessary to steer a careful path in dealing with sentencing discounts. It is undeniable that there is utilitarian value in a plea of guilty, at least in the ACT Supreme Court, even if the only saving is in the court time actually set aside for the trial. It is accordingly undesirable to create a situation where there is so little benefit in a late plea that a person who has not pleaded before the trial is about to commence might as well try his or her luck at trial rather than making a late plea.

19. In the more recent Court of Appeal case of Holliday v The Queen [2013] ACTCA 31, Penfold J referred to this at [76] and said:

Recent experiences in this court suggest that more active case management by trial judges can be effective in bringing forward pleas of guilty, often before a trial date is even set and usually well before a scheduled trial. This of course depends significantly on the availability of meaningful plea of guilty discounts. It would be unfortunate for the courts, and a tragedy for victims, if an excessively rigorous approach to pleas of guilty not actually entered at the earliest possible opportunity resulted in an overall reduction in the number of guilty pleas and an increase in the number of matters going to trial even in the face of a strong prosecution case.

20. These points are even more significant in relation to pleas of guilty that are genuinely early. Even an overwhelming prosecution case requires an enormous amount of work if it must be made out in a defended trial. As well, it is not unknown for an apparently overwhelming prosecution case to come unstuck in an unexpected way.

21. The benefits to the criminal justice system and the community more widely from offenders admitting their guilt at an early stage should not lightly be put at risk, acknowledging of course that, as s 35 of the Crimes (Sentencing) Act also requires, a reduced sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.

22. For these reasons, we are satisfied that his Honour's approach to the plea of guilty discounts was erroneous in this case, and that a higher discount should have been provided. Having found error, and that other sentences were warranted, we conclude that the appeal should be upheld and the appellant should be re-sentenced.

23. Those new sentences should be calculated by reference to his Honour's original sentences, as to which we have found no error, but on the basis of a 20% plea of guilty discount, which would give the following sentences on top of the three-month previously suspended sentence which we would impose in full:

(a) for the first burglary and associated theft, 19 months and seven months imprisonment respectively, to be served concurrently and fully accumulated on the three-month sentence;

(b) for the second burglary and associated theft, 24 months and 14 months imprisonment respectively, to be served concurrently with each other and accumulated so as to add 11 months to the total sentence; and

(c) for the third burglary, the attempted theft and the going equipped offence, 32 months, 10 months and 6 months imprisonment respectively, to be served concurrently with each other and accumulated so as to add 21 months to the total sentence.

24. That gives a total new sentence of 4 years and 6 months to run from the original starting date of 12 March 2012.

25. No express reasons were given for the particular non-parole period that was set. However, having regard to the doubts expressed by his Honour, when he noted the appellant's failure to take advantage of previous rehabilitation opportunities offered, about the appellant's claimed commitment to rehabilitating himself, and to the fact that at 60% of the total sentence the non-parole period actually set was a medium level rather than a severe non-parole period, there is no obvious basis for a claim that any further explanation by his Honour was necessary.

26. We would apply a similar approach to the non-parole period, giving a non-parole period of 32 months.

27. The orders we make are that the appeal is upheld and the appellant is resentenced as we have already identified.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: ACT Director of Public Prosecutions

(Sentencing) Act 2005

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