Gordon v R

Judgment

1. SIMPSON JA: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court in Lismore on 13 December 2016 following his pleas of guilty to:

• one count of reckless wounding, an offence against s 35(4) of the Crimes Act 1900 (NSW), committed on 16 October 2014; and
• one count of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act, committed between 3 August 2015 and 17 August 2015. The maximum sentence applicable to the reckless wounding offence is imprisonment for 7 years; pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 3 years is specified. The offence of doing an act with intent to pervert the course of justice carries a maximum penalty of imprisonment for 14 years. No standard non-parole period is prescribed.

1. Wells DCJ sentenced the applicant under the provisions of s 53A of the Sentencing Procedure Act to an aggregate term of imprisonment of 4 years and 11 months, with a non-parole period of 3 years and 7 months, commencing on 18 June 2015. In doing so, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, she took into account, in relation to the reckless wounding offence, an offence of assault occasioning actual bodily harm, committed on the same day, the details of which were set out in the form prescribed for the purpose (Form 1). If charged separately, by s 59(1) of the Crimes Act, such an offence carries a maximum penalty of imprisonment for 5 years. In relation to the offence of acting with intent to pervert the course of justice, she took into account three further offences on a second Form 1, one of detaining a person with intent to obtain an advantage (an offence for which s 86(1) of the Crimes Act prescribes a maximum penalty of imprisonment for 14 years), one of assault occasioning actual bodily harm, and one of contravening an Apprehended Domestic Violence Order ("ADVO"), an offence which (by s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) carries a maximum penalty of imprisonment for 2 years. These offences were committed on 29 May 2015.
2. Put shortly, Pt 3 Div 3 of the Sentencing Procedure Act enables an offender charged with an offence ("the principal offence"), who admits guilt of an additional offence ("the Form 1 offences"), to have that additional offence (or offences) taken into account in sentencing for the principal offence. There are some advantages to the offender in taking this course: it avoids conviction on the additional offence (although the record will ordinarily disclose that the additional offence was taken into account); and there is a restriction on the sentence that may be imposed, in that the sentence may not exceed the maximum sentence applicable to the principal offence (see s 33). Moreover, although the sentence imposed for the principal offence may be increased by reason of the Form 1 offence or offences as a matter of practice, adoption of the procedure will generally result in a lower sentence than would have resulted from the imposition of discrete sentences for the offences: see the discussion in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [31]-[34]; Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115.
3. In compliance with s 53A(2)(b) of the Sentencing Procedure Act, the sentencing judge specified the sentences she would have imposed in relation to the two offences to which the applicant pleaded guilty. For the reckless wounding offence, and taking into account the offence of assault, she indicated a sentence of 3 years and 7 months, with a non-parole period of 2 years and 8 months; for the offence of acting with intent to pervert the course of justice, and taking into account the three additional offences, she indicated a sentence of 2 years and 9 months with a non-parole period of 2 years.
4. The applicant relies on one ground of appeal only; he asserts error in the manner in which the sentencing judge allowed credit under s 22 in respect of his pleas of guilty. He makes no complaint otherwise about the length of the sentence, about the indicative sentences specified or about the reasoning that led to the selection of the sentences. That being so, the facts of the offences may be stated with relative brevity, but it will be necessary in due course to examine with some care the course of events following the offences and the laying of charges.

The offences

1. The facts of the offences were put before the sentencing judge in an agreed statement. It will be observed that the offences were committed in three "clusters" (to borrow the terminology of Ms Cook, counsel for the applicant). The first "cluster" of offences were committed on 16 October 2014. At that time the applicant was living in a domestic relationship in Goonellabah with Ms Mleeka Hart (the complainant). An argument broke out between the two. The applicant punched the complainant three times in the face, left the room, returned and hit her again to the eyes with a closed fist. She fell to the floor; he threw a small television set at her, striking her in the genital area causing a small cut and bleeding. Arising out of this incident, the appellant was charged with assault occasioning actual bodily harm.
2. The applicant then picked up a golf club with which he struck the complainant in the left arm, causing very significant injury. The complainant was admitted to hospital and discharged on 18 October 2014. This constituted the reckless wounding offence.
3. On 17 October 2014 the applicant was interviewed by police and denied any offending. He was charged and released on bail. On the same day police applied for and were granted an ADVO for the protection of the complainant. A term of the ADVO was that the applicant not have any contact with the complainant.
4. The second "cluster" of offences were committed on 29 May 2015. The complainant was again living with the applicant in the premises at Goonellabah. The applicant applied for and was granted a variation of the ADVO, with the deletion of the non-contact condition. Later that day, another argument erupted between the applicant and the complainant, over the ownership of a motor vehicle. The complainant attempted to leave, in the motor vehicle, but was prevented from doing so by the applicant. The applicant seized the complainant by the left arm, which had been injured in the commission of the previous offence. He then forced her to remain in the living room of the premises, which he barricaded with a heavy mattress, preventing her exit. He gave her a plastic bucket in which to urinate. At about 5:00am the following day while the applicant was asleep, the complainant escaped, in the disputed motor vehicle. In order to make her escape, it was necessary that she break a screen on one of the windows, and use lattice on the outer wall, and jump part of the way into a bush. The applicant then made three calls to the emergency number, reporting the vehicle stolen.
5. The applicant was arrested on 18 June 2015 and charged with detaining for advantage, assault occasioning actual bodily harm and contravention of the ADVO. On 19 June bail was refused in the Local Court. He has remained in custody since that date. While in custody, he telephoned the complainant on at least 10 occasions, on each of which he importuned her to "drop the charges". He was initially charged with one count of attempting to procure a benefit for himself by intending to influence a witness (Ms Hart) in a judicial proceeding (Crimes Act, s 321(1)(a)), and one count of doing an act with intent to persuade a person to be called as a witness in a judicial proceeding (Ms Hart) to withhold true evidence (Crimes Act, s 323(a)), in respect of each of which a maximum penalty of imprisonment for 10 years is prescribed. Each related to a telephone call made on 17 August 2015. On 19 April , these charges were withdrawn, and the applicant was charged with a single count of doing an act with intent to prevent the course of justice, committed between 3 August and 17 August 2015. This constituted the third "cluster" of offending.
6. Therefore, after being charged with the last offence, the applicant faced six separate charges, committed in three separate episodes. It was not until some time later (which I cannot determine on the evidence) that agreement was reached, to the effect that he would be charged with, and plead guilty to, two counts, with the remaining offences to be taken into account by the procedure provided by Pt 3 Div 3 of the Sentencing Procedure Act.

The course of events leading to the pleas of guilty

1. Having regard to the arguments advanced on behalf of the applicant, it is necessary to set out the course of events from the time the applicant was charged to the time he entered his pleas of guilty. That has some complexity. The Crown has helpfully examined the records of the Local Court at Lismore, and provided a chronology of those events which is undisputed.
2. The first cluster (16 October 2014) offences were first before the Local Court on 17 October of that year. The applicant was granted bail. On or shortly after 11 November, the matters were referred (presumably from Police) to the Director of Public Prosecutions. There is a brief note, on 17 February 2015, that the parties were "negotiating". A note of 7 April 2015 recorded that a timetable was set for provision of submissions pursuant to ss 91 and 93 of the Criminal Procedure Act 1986 (NSW). (Sections 91 and 93 permit, in limited circumstances, that proposed witnesses be required to attend for the purpose of cross-examination at a committal proceeding.) This indicates an intention on the part of the applicant to defend these charges, or, at least, to make no admissions until he was in possession of more information. The time originally fixed for the applicant's submissions was extended because his legal representatives were unable to complete them in time.
3. That was the state of play when the applicant committed the second set of offences, on 29 May 2015, with which he was charged on 18 June 2015.
4. On 7 July 2015 a committal proceeding, estimated to occupy one hour of hearing time, was fixed for 2 October. It was noted that one witness (the complainant) would be called.
5. The committal hearing, which went ahead on 2 October, was in respect of both the 16 October 2014 and 29 May 2015 charges. The complainant was cross-examined in relation to each. The committal hearing was part-heard and fixed to resume on 13 October 2015.
6. It seems that the negotiations that were taking place between the parties bore fruit, because, on 13 October 2015 in the Local Court, the applicant entered a plea of guilty to the charge of reckless wounding; the charge of assault occasioning actual bodily harm, which he admitted, was placed on a Form 1 to be taken into account under the Pt 3 Div 3 procedure (these were the 16 October 2014 offences). This plea was entered one year after the offences, and the date on which the applicant was first charged, but, it seems, shortly after agreement was reached as to the manner in which the charges were to be prosecuted.
7. On the same day, on the count of detaining for advantage, the applicant was committed for trial to the Lismore District Court, for arraignment on 18 November. The charges of assault occasioning actual bodily harm and contravening the ADVO were then placed on a certificate under s 166 of the Criminal Procedure Act, as "related offences". These were the 29 May 2015 offences. The effect of s 167 of the Criminal Procedure Act is that, if the applicant were convicted of the detain for advantage offence, the court would deal with these offences "as the interests of justice require[d]". There are statements in the submissions that indicate (and the transcript of the sentencing proceedings records that counsel representing the appellant stated that, on an earlier date fixed for trial, the matter was not reached. There does not appear to be any further evidence to confirm that in the papers before this Court, and it is not supported by JusticeLink entries. A trial was then fixed to commence on 14 June 2016.
8. On 18 November 2015 the applicant was charged with two counts of acting with intent to influence a witness, arising out of the telephone calls he made to the complainant from prison. By s 315A of the Crimes Act, each of those offences carried a maximum penalty of imprisonment for 7 years. On a date not specified these charges were withdrawn, and a single count of doing an act with intent to pervert the course of justice (carrying a maximum penalty of imprisonment for 14 years) was substituted. Entries on the court records of 2 February and 16 February 2016 indicate that the Crown was directed to serve "transcripts" - which I take to be transcripts of the conversations forming the foundation for the charge. There followed "negotiations"; on 5 April 2016 proceedings on this charge were adjourned to 19 April 2016 for a committal hearing. On that date, the chronology records, the applicant entered a plea of guilty to that charge. This also was done in the Local Court. Although not expressly stated in the chronology, it is apparent that the negotiations that had taken place resulted in an agreement that the "second cluster" (29 May) offences would be placed on a Form 1, to be taken into account with respect to that offence, and not charged separately. The Form 1 in relation to this offence was signed by the applicant on 15 June 2016.

The Remarks on Sentence

1. Given the narrow ambit of the ground of appeal proposed, it is only necessary to note one passage of the Remarks on Sentence.
2. The sentencing judge dealt succinctly with the question of the reduction to be allowed in respect of the applicant's pleas of guilty. She is recorded as saying: "The plea of guilty in relation to these matters came late and merits a discount of 10%. I note that the complainant [sic - offender], consistent with his efforts to have her [that is, the complainant] drop the charges, required her to give evidence in the Local Court. He is not to be given an extra sentence for that, but it shows a consistent disregard for the complainant." She rejected a submission that she find special circumstances justifying departure from the statutory ratio between the non-parole period and the head sentence, saying only that there was no justification for doing so, having regard to the seriousness of the offences, and the applicant's prospects of rehabilitation, of which she took a "very guarded view".

The ground of appeal

1. As indicated above, one ground of appeal only is proposed. It is: "The sentencing judge erred in assessing and applying the discount for the pleas of guilty."
2. In written submissions, counsel for the applicant took issue with the finding that the pleas of guilty "came late". She raised three discrete points. She argued: (i) that it is irrelevant to the quantification of the reduction in sentence referable to the utilitarian value of a plea of guilty that the complainant was required to give evidence at committal proceedings (although she did not appear to contend that the sentencing judge erroneously took that fact into account); (ii) that the sentencing judge erroneously failed to give separate consideration to the utilitarian value of each plea of guilty, rather taking something of a global view, or (at least) failing to deal with each individually; and (iii) that, since each plea was entered in the Local Court, each warranted a reduction in the range of 25 per cent.
3. In its submissions, the Crown focused on whether the pleas of guilty had been entered at "the first reasonable opportunity". It pointed to the long history of appearances in the Local Court, and the fact that the count of detain for advantage had in fact been listed for trial in the District Court on 14 June 2016. It relied upon two decisions of this Court.
4. The first was R v Dib [2003] NSWCCA 117, in which Hodgson JA (with whom Barr J agreed) said: "3 In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected. 4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty … 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity … 6 This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability."
5. The second decision on which the Crown relied was R v SY [2003] NSWCCA 291 in which Howie J, with whom Ipp JA agreed, said: "86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis."
6. The Crown did not address the question of whether a different approach should be taken with respect to the two offences in relation to which the applicant was to be sentenced.

Determination

1. Although the practice of affording offenders benefit in sentencing in recognition of their pleas of guilty is of long standing, it was formalised by statute in 1990 by the introduction of s 439 into the Crimes Act; the current statutory provision is s 22 of the Sentencing Procedure Act. Section 22 requires a sentencing court to take into account both the fact that an offender has pleaded guilty, and the time when he or she pleaded guilty or indicated an intention to do so, and the circumstances in which the intention to plead guilty was indicated; the court is then authorised to impose a lesser sentence than it otherwise would have imposed. If it does not do so, it is, by sub-s (2), obliged to make a record to that effect and indicate its reasons for that decision.
2. Since the statutory provisions came into effect a significant body of caselaw has developed. In 2000, in order to bring about a degree of consistency of both principle and practice, this Court published a guideline judgment which promulgated non-binding (but highly influential) guidelines for sentencing judges: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.
3. The Court identified three reasons for the practice of reducing a sentence that otherwise would have been imposed by reason of a plea of guilty. They are:

• that a plea of guilty is a manifestation of contrition or remorse;
• that a plea of guilty provides a significant advantage for the efficiency of the administration of justice (this is the utilitarian value of the plea of guilty); and
• that a plea of guilty obviates the need for witnesses to give evidence (this factor was seen to be of a variable value, but a benefit especially, for example, to vulnerable witnesses, victims of sexual offences, children and elderly witnesses): at [3].

1. The court gave particular emphasis to what is called the "utilitarian value" of a plea of guilty. This I take to mean the practical and economic effects manifested by the saving of court time and expense. The utilitarian value also appears to include the benefits to the prosecution (and possibly legal aid services) by the avoidance of the need to engage in costly preparation: see [154].
2. After a lengthy discussion of the history and principles concerning the practice of reducing the sentence by reason of a plea of guilty, the Court encouraged sentencing judges to quantify the effect of the plea on the sentence "insofar as they believe it appropriate to do so". It stated that: "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."
3. Ultimately, the Court declared that the utilitarian value of a plea of guilty should generally be assessed in the range of 10 to 25 per cent reduction in the sentence that otherwise would be imposed. It is to be emphasised that this quantification is confined to the utilitarian value of the plea. Excluded from the assessment of utilitarian value, but not excluded from consideration on general sentencing principles, are other factors such as the humanitarian consideration of saving witnesses (especially victims) from the need to give evidence (at [119]-[123]; see also R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102 at [32]).
4. The primary consideration in the assessment of the utilitarian value of the plea is the time at which it is entered (or indicated). This has a particular bearing on the savings in preparation time and costs, but also on the management of court lists. A plea entered, for example, on a date fixed for trial is obviously of less benefit to the prosecution, the defence, and the court.
5. The Court said: "155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."
6. Decisions in which these principles have been considered and refined are legion. Relevantly, for present purposes, in SY Howie J went on, immediately after the passage extracted above, to say: "86 … Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given."
7. This observation is particularly pertinent to the present case. It was made in 2003, some years before the commencement of s 53A of the Sentencing Procedure Act, which for the first time permitted judges sentencing in respect of multiple offences to impose a single aggregate sentence, but subject to the requirement that they specify the discrete sentences that would have been imposed in relation to each individual offence.
8. The position in relation to sentencing under that provision is now clear. In R v Cahill [2015] NSWCCA 53, Johnson J (with the concurrence of Leeming JA and Schmidt J) held that it was an error for a sentencing judge to apply the discount for the plea of guilty to the aggregate sentence; the correct approach was for the discount to be applied to the indicative sentences, before the final aggregate sentence (which had to take into account, for example, questions of totality) was selected. In Glare v R [2015] NSWCCA 194, that approach was restated. Hamill J (with whom Leeming JA and Fagan J agreed) said: "12 Where a sentencing judge imposes an aggregate sentence under s 53A [of the Sentencing Procedure Act], the Judge must record the individual sentences that would have been imposed on each count. These individual 'indicative' sentences should represent the sentence after the application of a discount for a plea of guilty or similar …" Hamill J quoted from the decision in Cahill. Both decisions were endorsed in R v Bao [2016] NSWCCA 16 (per Hoeben CJ at CL, with whom Bathurst CJ and R S Hulme AJ agreed) at [14]. A similar view was taken by Hoeben CJ at CL (with whom Bathurst CJ and McCallum J agreed) in Elsaj v R [2017] NSWCCA 124 (at [56]) and by Button and N Adams JJ in PG v R [2017] NSWCCA 179 (Basten JA taking a contrary view); see also TL v R [2017] NSWCCA 308 at [102]-[103].
9. The passage from the Remarks on Sentence extracted at [21] above is open to differing interpretations, one of which is that the sentencing judge reduced the aggregate sentence. If that is the correct interpretation, error has been demonstrated. If, however, as R A Hulme J and Hidden AJ think, the sentencing judge applied the reduction to the indicative sentences error of a different kind is demonstrated.
10. These decisions make it plain that Ms Cook's second point (error in failing to give separate consideration to the reduction to be applied to each offence before selection of the aggregate sentence) must be accepted. It is therefore necessary that this Court proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
11. Before doing so, however, it is necessary to decide the extent of the resentence. That issue has been considered in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, as a consequence of the decision of the High Court in Kentwell.
12. In Kentwell French CJ, Hayne, Bell and Keane JJ said: "42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration [citing House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40], the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing [noting s 3A of the Sentencing Procedure Act] and the factors that the Sentencing Act [citing s 21A of the Sentencing Procedure Act], and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not '"warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing [Procedure] Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion." (The references to the phrase "warranted in law" are references to that phrase as used in s 6(3) of the Criminal Appeal Act 1912 (NSW), which states: "On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.")
13. Following the decision in Kentwell, a further debate was generated. In Martin v R [2016] NSWCCA 104, R A Hulme J questioned whether the High Court intended that it would be necessary to embark upon a resentencing exercise where the identified error was a discrete one (the effect of which could readily be corrected) and did not affect the sentencing process. He gave as examples a judge failing to take into account a period of pre-sentence custody by backdating the sentence, or a judge who post-dated the commencement of a sentence to a time beyond the expiration of a non-parole period in respect of a sentence the offender was already serving, contrary s 47 of the Sentencing Procedure Act. Correction of errors of this kind can be achieved mechanically. Like the error mentioned in the final sentence of [42] of Kentwell, they are errors which did not affect the exercise of the sentencing discretion.
14. R A Hulme J then considered a series of cases in this Court in which a discrete error had been found, but in which, in a strict application of Kentwell, the Court had proceeded to sentence afresh.
15. One of the cases to which his Honour referred was O'Connell v R [2016] NSWCCA 43, in which the sole complaint (which was upheld) was that a finding of special circumstances affecting the calculation of the ratio between the non-parole period and the head sentence was not reflected in the total effective sentence. The Court in O'Connell considered that, since the appeal was limited to whether the sentencing judge had erred in failing to adjust the non-parole period, it was not necessary to consider whether the non-parole period and the additional term, taken together, were affected by error of law. The Court said that the only question was the propriety of the proportion of the sentence constituted by the non-parole period.
16. Another decision mentioned by R A Hulme J was Daniels v R [2016] NSWCCA 35; in that case, the sentencing judge had, in excess of power, purported to impose a condition of parole. This Court considered that that error fell into the "exception" category recognised in Kentwell, and resolved the appeal simply by deleting the invalid condition. It did not proceed to resentence.
17. R A Hulme J concluded: "111 The purpose of my engaging in this analysis is to make the general observation that there is, in my view, a persuasive argument in favour of this Court regarding Kentwell v The Queen as requiring a fresh exercise of the sentencing discretion in relation to the whole sentence when the sentencing discretion in relation to the whole of it is vitiated by error. Where there is error that does not entail vitiation of the entire sentencing discretion, but is an error that only affects a discrete component of the sentence that could have no potential bearing on the whole, the discretion should be re-exercised but only in relation to that particular component."
18. The Chief Justice, while declining to reach a concluded view, expressed some reservations about the views expressed by R A Hulme J.
19. For the most part these questions were answered in Lehn, a decision of a five judge Bench constituted for the purpose of resolving the issue. Bathurst CJ examined a number of the decisions to which R A Hulme J had referred in Martin. His Honour considered that the decision in Daniel was explicable on the basis that the invalid parole condition was something entirely discrete from the sentencing process or the exercise of the sentencing discretion. He added, however that: "84 … if in fact the imposition of the condition formed part of the discretion, even if it could only be said to affect the non-parole period, then, in my respectful submission [sic - opinion], the Court was in error in failing to resentence the applicant." He considered that the approach adopted in O'Connell was not in accordance with the requirements of s 6(3) of the Criminal Appeal Act. Beazley P, Schmidt J and Wilson J agreed with the Chief Justice in this respect.
20. R A Hulme J who (one might infer with some reluctance) agreed with the outcome, reiterated his misgivings about the interpretation of [42] of Kentwell, added that: "125 … on their face, the words used in [42] of the judgment are not in any sense vague or ambiguous. It is the role of this Court to faithfully apply them and not to qualify or quarantine their application …"
21. It will be seen, then, that the Court has taken a strict view of what is required of this Court where error in the sentencing process is identified. It seems that it is only where the error is of a kind that could not have affected the sentencing process that it is not necessary to proceed to resentence.
22. The question that arises is whether, in the circumstances of this case, the error that has been identified could be seen to have affected the sentencing process. It is of considerable importance that no attack has been made on the approach to the various sentencing considerations (for example, assessment of objective gravity, mitigating circumstances) taken by the sentencing judge, and that no complaint is made about either the indicative sentences, or (subject only to the reduction for the pleas of guilty) the aggregate sentence selected. If her Honour were shown to be wrong in her characterisation of the pleas of guilty (that is, both pleas) as "late", it would be a simple (almost mechanical) matter to correct the error by a recalculation.
23. In Lehn, the error identified was not dissimilar from, but, importantly, not identical with, the error in the present case. In that case, the ground of appeal, which was conceded on behalf of the Crown, was that the sentencing judge erred in applying only a 20 per cent, rather than 25 per cent, reduction in sentence reflecting the utilitarian value of the plea. In fact, the sentencing judge was sentencing for two offences, in relation to each of which he was asked to take into account further offences under Pt 3 Div 3 of the Sentencing Procedure Act. He did not use the provisions of s 53A and imposed separate sentences for each offence. Presumably in relation to both offences, he allowed a reduction of 20 per cent, notwithstanding that the pleas were entered at the earliest opportunity. To that extent, there is no difference between that case and this. Bathurst CJ concluded, at [88], that it was necessary to resentence the applicant having regard to the material then before this Court.
24. I mentioned above that the circumstances in Lehn were not identical with those of the present case. Two distinctions may be noted. The first is that, at sentencing, the Crown had not opposed the allowance of 25 per cent by way of reduction, and no indication had been given that any alternative was being considered. There was, it was conceded and found, a denial of procedural fairness. The second point of distinction was that the reason for the decision lay in the provisions of sub-s (1A) of s 22 of the Sentencing Procedure Act, which provides: "A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence."
25. Bathurst CJ said: "64 … the approach the sentencing judge took meant that the discount for the plea was directly connected to a sentencing purpose in that he declined to grant a further utilitarian discount because the resulting sentence would not reflect the objective seriousness of the offence. It was not debated at the hearing whether the reason for the reduction of the discount conflicted with the provisions of s 22(1A) of the Sentencing Procedure Act, but whether it did or not, the question of the extent of the discount directly related to a sentencing purpose, namely, ensuring that the penalty reflected the objective gravity of the offence. 65 Further, the error which was made was that the applicant was denied procedural fairness in circumstances where, during the sentencing hearing, the Crown did not contend that anything less than a 25% discount should be awarded and the sentencing judge gave no indication that he contemplated giving a lesser discount. It was not disputed that such a denial of procedural fairness constituted an error … where there has been a denial of procedural fairness, a miscarriage of justice has occurred in respect of which the person affected is entitled to relief."
26. Neither of these considerations applies in the present case. The sentencing judge merely characterised the entry of the pleas of guilty as having come at late stage, which, in her view, reduced their utilitarian value. (If she were correct in the first proposition, the second was undoubtedly correct.) On one view, if this Court were to conclude that she was in error in the first proposition, and that the pleas were not entered at a late stage (or one of them was not) it would be very easy for this Court simply to correct the error without embarking upon a resentencing process. Given that no complaint is made about the sentencing judge's analysis, or the selection of the indicative sentences by her, it is arguable that this Court could accept her findings of fact and conclusions and merely apply its discretion to the reduction to be allowed for each plea of guilty, and adjust the aggregate sentence accordingly. It would also be necessary to consider the question of totality.
27. It is important to note that, in Kentwell, in imposing the requirement that this Court "exercise the discretion afresh", the High Court expressly referred to the need for the court to do so taking into account the purposes of sentencing stated in s 3A of the Sentencing Procedure Act, and the factors that s 21A of the Sentencing Procedure Act (and those that any other Act or Rule of law) require or permit. However, there is no suggestion, and no reason to think, that those considerations have not already been taken into account.
28. There is, however, a further important matter to consider. If this court were to proceed to "sentence afresh", it would do so, not only on the material before the sentencing judge, but taking into account current circumstances. That is, it is not confined to the evidence tendered at first instance, but may - and must - take into account any additional evidence.
29. In this case, there was additional evidence. The applicant swore an affidavit on 23 January 2018. He attested to his circumstances since sentencing. The affidavit is positive (although untested). The applicant said that he had been "well-behaved" in gaol, had a minimum security classification, and had been active in Indigenous welfare issues. He had taken up an offer of a drug rehabilitation programme, which he had found helpful. He had also applied to engage in a domestic violence offenders' programme, which he had not been able to commence due to his involvement in the drug rehabilitation programme. He spoke also of family issues, and medical issues.
30. Much of what the applicant wrote concerning his conduct while in custody was confirmed by records produced from the Department of Corrective Services and from Justice Health.
31. I have come to the view that it is necessary that this Court resentence. In my opinion, this case sits close to the borderline between cases of the kind in which discrete error can be corrected by a mathematical exercise, and those where the error shows that the sentencing discretion has been affected. The principal reason I come to that conclusion is the need, after the selection of the appropriate indicative sentences, to apply principles of totality.
32. In resentencing, however, the Court is entitled to rely on and adopt the findings of fact and assessments made by the sentencing judge. Particularly where an offender gives evidence, a sentencing judge is ordinarily in a better position than this Court to make the relevant assessments. This Court must also take into account the additional material.

The proceedings on sentence

1. It is necessary now to turn to the evidence given in the sentencing proceedings. Apart from the agreed statement of facts, there was a pre-sentence report and a psychological report. In addition, the applicant gave oral evidence.
2. The pre-sentence report indicates that the applicant's previous response to supervision has been: "… problematic due to his challenging behaviour towards Community Corrections staff and inability to remain focused on addressing issues related to his responsivity needs."
3. Although he had a "relatively positive and pro-social upbringing absent of any family violence or significant alcohol or other drug misuse" the applicant reported a lengthy history of alcohol and other drug misuse, the alcohol consumption beginning at the early age of 12. His alcohol use escalated in the period prior to the current offending, which he attributed to stress and anxiety he experienced concerning his father's deteriorating health. His father suffers from dementia and asbestosis. The applicant did not accept that alcohol consumption accounted for the present offences.
4. He has held employment of various kinds, but in recent times has been unemployed for some years.
5. He has experienced significant family bereavement; a number of uncles died of asbestos related illnesses, and a sister died in "an horrific accident" following which the applicant, as the elder of the family, was required to attend and identify the body. In oral evidence the applicant described the circumstances of his sister's death. He said that she was attempting to assist a young man who was trying to commit suicide by hanging. She ran across the road to render assistance and was struck by a truck. This occurred in 2003 or 2004. There was also a niece who had been brought up in the applicant's household who was killed while hitchhiking.
6. The psychologist who prepared the report, Mr Allan Anderson, considered that the sister's death: "… has left an indelible mark on his life and he still experiences nightmares and flashbacks related to this time."
7. He believed that the event had had a significant and lasting effect on the applicant's life, and that many of his more recent problems had their base in this experience.
8. The applicant has been involved in asbestos issues and land title issues.

The Remarks on Sentence

1. After recounting the facts of the offences, the sentencing judge commented on the content of the telephone calls constituting the second offence. She said: "they show the reality of this man's attitude towards the complainant. They show that he was variously manipulative by telling her he loved her. He was also intimidating and aggressive, insulting and in all, devoid of any remorse for the things that he had done to her prior to those phone calls. He told her in some considerable detail what she needed to do in order to have the charges dropped." There is no reason to depart from those observations.
2. At sentencing, the applicant was 50 years of age (now 51). The sentencing judge described his criminal record as "extensive". For myself, I would describe it as "moderate". Concerningly, however, the record includes four offences of assault (one of which was domestic violence related) and a previous offence of contravening an ADVO. As the sentencing judge observed, some of these offences were committed while the applicant was on bail.
3. The sentencing judge considered the objective seriousness of the reckless wounding offence to be "in the middle or upper end of the mid-range of objective seriousness". I agree with that assessment. She considered the acting to pervert the course of justice offence fell "toward the low end of the mid-range, if not slightly below". I also agree with that assessment.
4. The sentencing judge was sceptical about the applicant's acceptance of responsibility for his offences. It is fair to say that she regarded the objective evidence of the applicant's behaviour as more telling than his oral evidence. She considered that he had a medium risk of re-offending and took "a very guarded view" of his prospects of rehabilitation.
5. It is now more than a year since the applicant was sentenced. As indicated above, the supplementary evidence admitted for the purposes of resentencing is more positive. It cannot be overlooked, however, that the applicant did not give oral evidence on the appeal, and this Court has therefore not had the opportunity the sentencing judge had to make an assessment of his sincerity.
6. Notwithstanding that, I would find that his prospects of rehabilitation are now significantly more positive than they were when assessed by the sentencing judge.
7. Taking into account all of those matters, I have reached a conclusion concerning the sentence that should be imposed. In doing so, I have endeavoured to put out of my mind the sentence, and the indicative sentences, selected by the sentencing judge.

The pleas of guilty

1. As indicated above, there is a degree of complexity in determining the extent to which credit should be given for the pleas of guilty. Although the sentencing exercise involves six separate offences, committed in three separate episodes, the applicant is to be sentenced for only two offences, although taking into account the four other offences. Determining the utilitarian value of each plea, by specific reference to its timing, is difficult by reason of the complicated history.
2. It is true, as Ms Cook pointed out, that each plea was entered in the Local Court. However, to approach the assessment on that basis alone would be over-simplistic. The plea in relation to the reckless wounding count was entered one year after the applicant's first appearance, and after the complainant had been cross-examined. That court time was taken up in this way diminishes the utilitarian value; that the complainant was required for cross-examination virtually eliminates any suggestion that contrition or remorse could be read into the plea. I propose that the indicative sentence in relation to that offence be reduced by 12.5 per cent in recognition of the utilitarian value of the plea.
3. In a sense the assessment in relation to the acting to pervert the course of justice offence is even more difficult. That plea was, I accept, entered at an early stage after (as indicated by the chronology) the applicant had been supplied with the transcripts of the telephone calls). If that were the only circumstance relevant, I would have allowed a reduction of the maximum of 25 per cent. But the value of that plea must be assessed having regard also to the history of the Form 1 offences taken into account. A relevant question is when the applicant acknowledged his guilt of these offences. It would be wrong, in my opinion, to ignore the fact that one of the offences (detain for advantage) had been fixed for trial, after a committal hearing in which the complainant had been cross-examined. It is not to the point that, strictly speaking, the reduction was to be applied to the offence of doing an act to pervert the course of justice. The indicative sentence in relation to that offence was to be imposed in relation to a package - the offence itself, together with the three Form 1 offences. Ignoring the history of the Form 1 offences would be to sentence on an unrealistic and artificial basis.
4. There is no automatic entitlement to a reduction of 25 per cent for an early plea: R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398 at [46]; R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355. And s 22(1)(c) of the Sentencing Procedure Act specifically requires the court to take into account the circumstances in which the intention to plead guilty was indicated.
5. I would also reduce the indicative sentence in relation to this offence by 12.5 per cent.
6. The indicative sentence I consider appropriate to the reckless wounding offence, taking into account the offence of assault occasioning actual bodily harm, is imprisonment for 3 years and 3 months. Reduced by 12.5 per cent, that yields an indicative sentence of 2 years and 10 months.
7. The offence of acting to pervert the course of justice alone would call for an indicative sentence of 2 years and 9 months. However, that does not adequately take into account the Form 1 offences of detaining for advantage, assault and contravention of an ADVO. These are all serious offences, the detaining offence carrying a maximum term of imprisonment for 14 years. The indicative sentence I propose in relation to the principal offence is imprisonment for 3 years and 6 months; reduced by 12.5 per cent that is a sentence of a little over 3 years.
8. Unlike the sentencing judge, who on the material before her found no reason to vary the statutory proportion between the non-parole period and the head sentence, I would find that special circumstances exist for doing so (Sentencing Procedure Act, s 44(2)). The reason lies in the applicant's enhanced prospects of rehabilitation as disclosed in the additional evidentiary material.
9. The aggregate sentence I would impose is one of 5 years. However, that exceeds the aggregate sentence imposed by the sentencing judge, and fairness dictates that, without caution, the sentence imposed should not be increased. I would therefore not interfere with the aggregate head sentence imposed. The non-parole period I propose is of 3 years.
10. R A HULME J: This appeal raises an issue that I cannot recall having being raised before: whether the "discount" for the utilitarian value of a plea of guilty for an offence may be affected by consideration of the timing of an offender's plea of guilty to, or at least acceptance of responsibility for, offences listed on a Form 1 document that the offender asks to be taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court was not referred to any cases which have considered such an issue.

History of the charges

1. Simpson JA has fully set out the history relating to the various charges for which Mr Gordon was either sentenced or asked to be taken into account. For convenience, that history of the two groups of charges is summarised in the following table. The 2nd column is the date Mr Gordon was charged; the 3rd column is the date guilt was pleaded or acknowledged; and the 4th column is the court in which guilt was pleaded or acknowledged. 1st Group Reckless wounding on 16.10.14 17 October 2014 13 October 2015 Local Court Form 1: Assault occasioning actual bodily harm on 16.10.14 17 October 2014 13 October 2015 Local Court 2nd Group Do act with intent to pervert the course of justice between 3.8.15 and 17.8.15 22 March 2016 19 April 2016 Local Court Form 1: Detain for advantage on 29.5.15 18 June 2015 15 June 2016 District Court Form 1: Assault occasioning actual bodily harm on 29.5.15 18 June 2015 13 October 2015 Local Court Form 1: Contravene apprehended domestic violence order on 29.5.15 18 June 2015 13 October 2015 Local Court

1st Group

1. The result was that there was a plea of guilty in the Local Court to the reckless wounding charge that came after a considerable period of delay (a year) and after the victim was required to attend and be cross-examined at a committal hearing. A plea entered at an early stage in the Local Court normally attracts a "discount" at the high end of the range suggested in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 419 [160]. A plea entered at a late stage (on or near to a trial date in a higher court) normally attracts a "discount" at the low end of that range. Within that range, the plea to the reckless wounding charge warranted something in the order of 15 per cent. The timing of Mr Gordon's acknowledgement of guilt in respect of the offence taken into account was identical and so it could have no bearing upon the degree to which the utilitarian value of the plea of guilty to the primary charge was assessed.

2nd Group

1. The pervert the course of justice charge encompassed all of the telephone contact made from gaol by Mr Gordon, thereby subsuming two charges relating to influencing a witness which were laid on 18 November 2015 but then withdrawn on 19 April 2016. The pervert the course of justice charge exposed Mr Gordon to a higher maximum penalty, albeit that a single charge replaced two with a lesser maximum penalty. It cannot be said that the laying of this charge was the result of charge negotiations that operated to Mr Gordon's benefit. The significant point is that a plea of guilty was entered four weeks after the charge was laid.
2. The plea of guilty to the pervert the course of justice offence can only be regarded as one that was entered at an early stage in the Local Court, even if the two withdrawn charges are considered. On its own, it would normally attract a reduction of sentence in the order of 25 per cent.
3. In respect of the offences taken into account, on 13 October 2015, when Mr Gordon was committed for trial in respect of the charge of detain for advantage, he acknowledged his guilt in respect of these two charges and they were referred to the District Court as "related offences" on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). On 15 June 2016, the day after a trial was listed to commence, Mr Gordon acknowledged his guilt in respect of the offence of detain for advantage.
4. If an assessment needed to be made of an appropriate "discount" for the utilitarian value of these acknowledgements of guilt, it would have been something in the order of 10 per cent for the detain for advantage offence and something in the order of 25 per cent for the other two offences. In relation to those two offences it is notable that guilt had been acknowledged less than three months after Mr Gordon was charged and they were placed on a s 166 certificate. Further, the requirement for the complainant to attend for cross-examination at the committal hearing on 2 October 2015 was confined to the charge of detain for advantage; no questions were asked about the factual basis for the assault which also constituted the contravention of the apprehended domestic violence order.

Consideration

1. Section 22 of the Crimes (Sentencing Procedure) Act provides (relevantly): "22 Guilty plea to be taken into account (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."
2. Accordingly, it is necessary to take into account when sentencing for "an offence" that the offender pleaded guilty to "the offence". There is no statutory requirement to take into account that an offender pleaded guilty to an offence when the court is not passing sentence for that offence but taking it into account pursuant to the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act. Nor is there any known requirement at common law. Further, there is no requirement, statutory or otherwise, to take into account that an offender accepted or acknowledged guilt of an offence taken into account. It does not necessarily follow from this that it is inappropriate to do so; the point is that up until now, nobody has considered that it is appropriate to do so.
3. There are a number of difficulties with the suggestion that a court when sentencing for one offence should consider the procedural history of any additional offences that were to be taken into account in assessing by how much the sentence for the primary offence should be reduced on account of the utilitarian value of the plea of guilty to that primary offence.
4. There are a number of possible situations that would give rise to problems if this Court were to accede to this proposed new requirement. They include: Should the number of Form 1 offences for which acknowledgement of guilt was earlier or later than that for the primary offence affect the degree to which the "discount" is assessed? Should an offender receive a greater "discount" than would otherwise be the case if there is a late plea of guilty to the primary offence but early acknowledgements of guilt in respect of offences on a Form 1? Would the seriousness of the Form 1 offences relative to the primary offence make a difference? Would any relationship (or lack thereof) between the primary offence and the Form 1 offences make a difference? Would an offender become eligible for a "discount" on sentence following conviction after trial because offences which were the subject of early acknowledgments of guilt are taken into account?
5. This proposed requirement for judges to factor in the procedural history of offences which are to be taken into account when assessing the utilitarian value of a plea of guilty has the potential to add significant complexity to sentencing which is already an overly complex task. It is also apt to create a new field of disputation in sentence appeals which are already bedevilled with complexity beyond the question of whether a sentence is erroneously excessive or inadequate.
6. It must be borne in mind that an offender can only ask a sentencing court to take into account his or her guilt of further offences with the concurrence of the Director of Public Prosecutions. It is the prosecutor who files the Form 1 in court and it must be signed by or on behalf of the Director: s 32 of the Crimes (Sentencing Procedure) Act. Further, a court has a discretion whether it will accede to the request to take such further offences into account; s 33(2)(b) provides that such offences may be into taken into account "if, in all of the circumstances, the court considers it appropriate to do so".
7. These two features may be thought to provide protection against the imposition of an unwieldy further aspect to the sentencing task. But rejecting the use of the Form 1 procedure for this reason would also impinge upon the advantages it offers (as described by Simpson JA at [3]).
8. None of the foregoing should be taken as suggesting that the procedural history of Form 1 offences must be completely disregarded in the assessment of sentence for the primary offence. Such history may have a bearing upon a number of relevant matters including the weight to be given to personal deterrence and retribution in sentencing for the primary offence: see Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) at [42]. The history may have a bearing upon the assessment of the offender's remorse and prospects of rehabilitation where, for example, the primary offence and Form 1 offences concern the same victim or subject-matter.

Conclusion

1. I agree with Simpson JA that error has been established. I respectfully disagree that there is ambiguity and that it may be inferred the error was by discounting the aggregate sentence. The judge did not say so; counsel for the applicant did not say so; and none of the authorities to which Simpson JA has referred that indicate that such an approach is erroneous were cited. Further, the fact that the judge specified indicative sentences of 3 years and 7 months and 2 years and 9 months does not support a proposition that her Honour adopted an erroneous approach of this type. The error lies in the fact that the pleas were entered at different stages and yet the judge simply described them both as "late". Such a description is appropriate for a plea entered on or near to a trial date in a higher court but that is not what occurred here. The judge's assessment failed to discriminate between the procedural histories of the two charges and was an incorrect characterisation for each of them.
2. For essentially the same reasons as I gave in Lehn v R [2016] NSWCCA 255 at [120], this is a clear case of the sentencing discretion having miscarried with this Court being required to exercise the discretion afresh.
3. As indicated earlier, an appropriate allowance for the utilitarian value of the pleas of guilty was 15 per cent for the reckless wounding offence and 25 per cent for the pervert justice offence.
4. I agree with what Simpson JA has written on the subject of re-sentencing and her Honour's assessment of starting points for the individual offences of 3 years 3 months and 3 years 6 months. After reduction on account of the pleas of guilty, they are (with rounding) sentences of 2 years 9 months (reckless wounding) and 2 years 7 months (pervert justice).
5. The aggregate sentence I would impose is one of 4 years 6 months. I agree with Simpson JA's finding of special circumstances. There should be a non-parole period of 2 years 9 months.

Orders

1. I propose the following orders:
2. Leave to appeal against sentence granted.
3. Appeal allowed.
4. Quash the sentence imposed in the District Court on 13 December 2016.
5. In lieu, sentence the offender to an aggregate term of imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months. The sentence will date from 18 June 2015. The non-parole period will expire on 17 March 2018 and so the offender is now eligible for release on parole.
6. HIDDEN AJ: I agree with R A Hulme J that error has been established in the approach of the sentencing judge to the discounting of the indicative sentences for the utilitarian value of the pleas of guilty. I also agree with his Honour on the issue of discounts for pleas of guilty where Form 1 matters are involved.
7. I agree with the orders proposed by R A Hulme J.

Amendments 28 March 2018 - correction to catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2018