19 The Crown accepted that his Honour did not make any explicit reference to the plea of guilty either when he indicated that a non-parole period of 18 months would be imposed at the end of the first day of proceedings or when he imposed sentence the following day. Although the Crown conceded that it would have been preferable for his Honour to have made it clear that he had applied a discount for the plea of guilty in accordance with the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, she submitted that the Court should not assume from his failure to do so that he failed to take into account the plea of guilty in the calculation of sentence, or that he failed to give it appropriate weight by discounting the sentence by 25 per cent. She placed particular emphasis on the fact that his Honour expressly acknowledged the Crown's concession that the pleas were entered at the first available opportunity, a clear acknowledgment that the utilitarian value of a plea of guilty had been assessed and that the sentence warranted a discount of 25 per cent.
20 The Crown relied upon the observations of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [13]-[15] in support of the submission that in this case, as in Lawrence, it should be inferred that his Honour in fact applied the appropriate discount when imposing sentence, but had simply overlooked saying so:
[13] The Applicant submits that the sentencing Judge fell into error in failing to give proper weight to the plea of guilty and in failing to make plain the fact that, and the extent to which, the Applicant's sentence was reduced for the plea. The Crown contends that his Honour did take into account the plea and it puts forward a plausible computation that the final head sentence of 27 months happens to constitute a 25% discount from the sentence of 36 months. Although this is a plausible, indeed likely, reconstruction, it would have been easy for his Honour to say so.
[14] Goldring DCJ is an experienced District Court Judge. He cannot be unaware of the line of authority on this matter, particularly Thomson and Houlton , as affirmed in R v Sharma (2002) 54 NSWLR 300 . The guideline established in Thomson at 160 encouraged, but did not require, the sentencing judge to quantify any discount. It did, however, indicate that judges should explicitly state that the plea of guilty has been taken into account and added "failure to do so will generally be taken to indicate that the plea was not given weight" (at 416 [160]).
[15] This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal.
21 The Crown submitted that it was open for this Court to adopt the approach of the Chief Justice in Lawrence and assume that his Honour commenced with an undiscounted sentence of 32 months such that, after applying a 25 per cent discount for the plea, the total term of imprisonment was reduced to 24 months and a non-parole period of 18 months fixed in accordance with the statutory ratio fixed by s 44 of the Crimes (Sentencing Procedure) Act.
22 In his oral submissions counsel for the applicant also relied upon Lawrence but as a restatement of the principled approach to valuing a plea of guilty in a sentencing exercise. He drew particular support from the passage extracted above where the Chief Justice noted that although the guideline judgment does not require sentencing judges to quantify a discount for the plea of guilty, judges should explicitly state the fact that a plea of guilty has been taken into account as a failure to do so will generally be taken to indicate that the plea was not given weight in the sentencing exercise. The applicant submitted that this Court would involve itself in an over-rationalisation of the approach of the sentencing judge in this case were we to assume that simply because it was open to conclude that his Honour applied a 25 per cent discount to an undiscounted sentence of 32 months to explain his appointment of 24 months (ie a notional starting point for sentence that was divisible by four) that was in fact what his Honour intended. He submitted that in circumstances where the sentencing judge assessed the objective criminality at the lower end of the range, and where the single feature of aggravation under the Crimes (Sentencing Procedure) Act was largely counterbalanced by a range of mitigating factors, this Court could not be confident a reconstruction of the sentencing exercise in the way the Crown proposed afforded the applicant the benefit of the plea of guilty to which he was entitled.