Gurin v R

Judgment

1. BEECH-JONES CJ at CL: I agree with Adamson J and Campbell J including the orders his Honour proposes.
2. ADAMSON J: I agree with the conclusions of Campbell J and with the orders his Honour proposes. The express words of ss 25C and 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) require the construction adopted by the sentencing judge. This construction also serves to promote the evident purpose of the provisions and, thus, is to be preferred: s 33 of the Interpretation Act 1987 (NSW).
3. CAMPBELL J: The applicant seeks leave to appeal from a sentence passed on him in the District Court of New South Wales by his Honour Judge O'Brien AM on 28 October 2021. He was sentenced on his plea of guilty on indictment in the District Court for two offences of robbery in company contrary to s 97(1) Crimes Act 1900 (NSW). The offending occurred in the early hours of the morning on 29 November 2018. His Honour imposed an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 2 months. After allowing a 5% discount for the utilitarian value of the plea of guilty in accordance with s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), the indicative sentences were: Count 1: 3 years 9 months; and Count 2: 4 years 9 months. His Honour stated that his "starting point" before the discount for the plea was 4 years and 5 years respectively (Appeal Book ("AB") p. 25). A degree of rounding down was applied in the formulation of the indicative sentences.

Grounds of appeal

1. The applicant relies on a single ground of appeal: "The sentencing judge erred in not finding that the applicant's plea warranted a 10% reduction for utilitarian value pursuant to s 25(D)(2)(b)(i) [Sentencing Act]."

Nature of the charges

1. Clearly, this ground of appeal raises a point of law concerning the legal meaning of the Sentencing Act Part 3, Div 1A ss 25C and 25D. In House v The King (1936) 55 CLR 499; [1936] HCA 40 terms, the ground asserts that the learned sentencing judge acted "upon a wrong principle". For this reason, and having regard to the nature of the issue, it may be more useful to focus initially upon the procedural history of the prosecution of the applicant rather than the circumstances of his offending. The facts of the offending and the applicant's circumstances will be considered in detail if it becomes necessary for this Court to re-sentence him in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
2. It suffices to say for present purposes that the charges against the applicant may be summarised as follows: 1. On 29 November 2018 at Surry Hills the applicant, in company with two others, robbed Saad Khan of certain property, namely, 1 iPhone 8+, 1 Apple Watch Series 3 and 1 pair of Beats Studio 3 headphones, the property of Saad Khan; and 2. On the same day, at Redfern, the applicant, in company with the same two others, robbed Carlos Hernendez of certain property, namely, 1 Samsung S8+ mobile phone, 1 black Samsung "A" tablet, 1 pair of Bose wireless headphones, and 1 leather wallet containing cards and cash, the property of Carlos Hernendez. The first co-accused pleaded guilty in the Local Court and was afforded a 25% discount for the utilitarian value of that plea when sentenced in the District Court by another judge. The second co-accused maintained his plea of not guilty and was convicted after a separate trial. He was not entitled to any discount when sentenced for the offending by O'Brien DCJ.

Procedural history

1. The applicant and the co-offenders were arrested on 22 February 2019. Initially, the applicant was refused bail. On 15 October 2019 he was committed to stand trial in the District Court and was arraigned on 25 October 2019 entering pleas of not guilty to each count. The applicant was granted bail on 5 December 2019. His bail undertaking required him to attend court on the first date fixed for his trial on 23 March 2020. Due to the cancellation of jury trials after the arrival of the Coronavirus pandemic in Australia, the date fixed for trial was vacated on 20 March 2020 as the applicant and his remaining co-accused were not prepared to waive their right to trial by jury.
2. The next day fixed for trial was 6 October 2020. The trial was assigned to his Honour Judge King SC. As King DCJ was finalising an earlier trial, the indictment was not presented until 8 October 2020 when the applicant entered a plea of not guilty to each charge on arraignment. There were a number of legal questions to be determined before empanelment of the jury and King DCJ commenced conduct of the voir dire immediately. The voir dire continued on 9 October 2020 before the trial was adjourned to Monday 12 October 2020.
3. The applicant failed to appear in accordance with his bail undertaking on 12 October 2020. It transpired he had not reported to police on Friday 10 October 2020 and had not answered a curfew check over the intervening weekend. His legal representatives had attempted to call him on the morning of 12 October 2020 unsuccessfully and informed the Court, "We don't know where he is" (Affidavit of Yeabee Kimm sworn 22 August 2022, Annexure E, p. 56). A bench warrant was issued for his arrest. Due to the applicant's continued non-appearance, the trial was aborted prior to a jury being empanelled.
4. The applicant remained at large until he was re-arrested on 19 July 2021. In the meantime, an order had been made for the separate trial of the second co-accused who was convicted by verdict of the jury following a trial commencing on 10 May 2021.
5. Following his arrest, the applicant was brought before the District Court by bench warrant on 27 August 2021 when he entered a plea of guilty to each count on the indictment. No new date for his trial had yet been fixed.

Judgment below

1. Again, at this stage, it is appropriate to focus on how the sentencing judge dealt with the question of the s 25D Sentencing Act discount. If it is necessary to re-sentence the applicant I will deal with his Honour's reasons in more detail.
2. The sentencing judge set out the procedural history I have summarised above. In written submissions on behalf of the applicant it was submitted that he was entitled to a discount of 10% "if it is accepted that the offender pleaded guilty at least 14 days before his (aborted) trial was listed to commence, otherwise 5% if s 25D(c) applies" (AB p. 109).
3. During the proceedings on sentence, the applicant's solicitor advocate pressed for a 10% discount for the guilty plea. His Honour expressed the view that "the best I can do is 5%, I think… The trial (before King DCJ) commenced and was then aborted for a number of reasons". His Honour also allowed himself the observation which could hardly be, and was not, gainsaid that the applicant's conduct "was hardly commensurate with [utilitarian value]".
4. In his judgment his Honour said (AB p. 9): "By virtue of the timing of his plea of guilty and s 25D(2)(c) of the [Sentencing Act] the offender is entitled to a reduction of 5% on any sentence that would otherwise have been imposed to reflect the utilitarian value of his plea. A 5% reduction applies because the offender did not enter a plea in the Local Court (25D(2)(a)), nor did he enter a plea at least 14 days before the first day of his trial before Judge King (25D(2)(b)). I am satisfied that the reference to the "first day of the trial of the offender" in that section is a reference to his trial before Judge King, notwithstanding that it was aborted and he then, approximately 10 months later, entered a plea of guilty."

The relevant statutory provisions

1. For present purposes the relevant provisions of the Sentencing Act are as follows: 25A Application of Division (1) This Division applies to a sentence for an offence that is dealt with on indictment, other than - (a) an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or (b) an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence. (2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division. … 25C Timing of pleas and notice requirements (1) In this Division - first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated. (2) For the purposes of this Division, an offender complies with the pre-trial notice requirements if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence. 25D Sentencing discounts for guilty plea for offences dealt with on indictment (1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced. (2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender - (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (3) Discount variations - new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (a1) a reduction of 25% in any sentence that would otherwise have been imposed, if - (i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and (ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender - (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply. (4) However, the discount in subsection (3) (a) does not apply if - (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document. (5) Discount variations - person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender - (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).
2. It is also relevant to consider s 130 of Criminal Procedure Act 1986 (NSW), which is in the following terms: 130 Trial proceedings after presentation of indictment and before empanelment of jury (1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled - (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section.

The submissions of the parties

1. Ms S Goodwin of counsel, who appeared for the applicant, argued that the verb "to vacate" where used in the definition of the phrase "first day of the trial of an offender" in s 25C referred to any adjournment of a trial of an offender for any reason even after it had commenced. On this interpretation, the aborting of the trial before King SC DCJ "reset the clock" for the purpose of s 25D(2)(b). Likewise, for example, the discharge of a jury unable to agree and the relisting of the matter for a retrial. She argued that such an interpretation gave better effect to the legislative purpose of Division 1A of Part 3 of the Sentencing Act. She submitted (Written Submissions, p. 10 [24]): "… that the utilitarian value of avoiding a trial is not reduced by the fact that a prior trial has been commenced, or even completed. Thus, it is submitted that an offender who has participated in a prior trial (to any degree) ought to be entitled to the same mandated discount where a fresh trial is "on the cards" (for whatever reason). The provision ought to be construed this way to ensure consistency and to facilitate the purpose of the legislation, which includes removing the common law discretion and the provision of certainty to an accused who is considering entering a plea of guilty post committal."
2. Ms E Wilkins SC, Crown Prosecutor, submitted that s 25C makes clear that the first day of the trial is the first day fixed for the trial. In the present case that was 6 October 2020 and the trial commenced before King DCJ on 8 October 2020. Senior Counsel submitted (Written Submissions, p. 8 [25]): "There is no issue in this case about the relevant trial date having been vacated. It was not vacated. The applicant has conceded that the trial was aborted. The distinction is between a trial that never commenced (a "vacated" trial) or one that commenced, but for some reason did not conclude (an "aborted" trial). These expressions and the distinctions between them are well understood by lawyers." She argued that the language, purpose and context of the relevant provisions all favoured the construction advanced by the Crown, "namely, that Section 25D(2)(b)(i) is not engaged in circumstances where the trial had commenced (to any degree) and aborted" (Written Submissions, p. 9 [26]).

Consideration

1. In R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35 ("R v A2"), Kiefel CJ and Keane J summarised the modern approach to statutory interpretation including the interpretation and construction of criminal statutes (at [32] - [37]). The context for their Honour's summary was the resolution of an issue about whether the phrase "otherwise mutilates" where it appears in s 45 Crimes Act should be so construed as to afford it a legal meaning broader than its ordinary meaning. A majority of five justices agreed that it should (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ; Bell and Gageler JJ dissenting). In my view, in the present case, the legal, on the one hand, and grammatical or literal, on the other, meanings are the same. However, it is worthwhile setting out the applicable principles. Kiefel CJ and Keane J said (at [32]-[33]; [36]-[37]): "[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. …. [36] [The] cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred."
2. As I understand it, their Honours emphasised that a very general purpose of a statute will not provide much context for a particular provision and that the actual words of the provision should not be lost sight of. The general purpose of the statute, however, should not be permitted to subvert the meaning "which could be drawn from the terms of the provision" (R v A2 at [35]). The text of a provision may clearly convey "its intended operation". (See also GS v R [2022] NSWCCA 65 at [38] - [42], Payne JA).
3. As Ms Wilkins argued, the language of ss 25A(2) and 25D(1) makes clear the scheme enacted for the provision of a discount for the utilitarian value of a guilty plea is mandatory. Section 25A(2) provides: A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division. And s 25D(1) states, "the court is to apply a sentencing discount … in accordance with this section" (my emphasis). From these provisions, it is clear that the previous discretionary approach to discounting for guilty pleas has been displaced; not that the judicial discretion involved was entirely at large: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160], Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing.
4. When interpreting a statute, it is sometimes useful to amplify the text of the operative provision by interpolating any applicable definitional provision. Here, the expression "the first day of the trial of the offender" appearing in sub-paragraph (i) of paragraph (b) of subs 25D(2) is defined by s 25C(1). The full legal effect of the provision in question then is read as follows: The discount for a guilty plea by an offender … is as follows - …. (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender - 1. pleaded guilty at least 14 days before the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated. 2. …. Reading the operative provision in this way it is important to emphasise that the plea must be entered before the first day fixed for trial of the offender or, if that day is vacated, the next day fixed for trial that is not vacated. Where the first day fixed for trial is vacated for the s 25D(2)(b)(i) discount to be applicable the offender must enter the plea of guilty at least 14 days before the next day fixed for the trial that is not vacated.
5. While Ms Goodwin's argument that a plea of guilty which avoids the need for a trial must always have some utilitarian value is correct so far as it goes, it is not to the point. Section 25D proceeds on that assumption, but its operation focuses upon the timing of the plea, like the previous practice of the courts in accordance with R v Thomson; R v Houlton, but without the discretionary flexibility available under the previous practice. A purpose of the provision is to eliminate the previous discretionary flexibility and establish what may be described as inflexible temporal limits governing the degree of discount available at specified procedural intervals in the committal and trial process.
6. It should be borne in mind that the provisions of Div 1A of Part 3 of the Sentencing Act are intended to operate harmoniously with the procedural provisions of Chapter 3, Parts 2 and 3 of the Criminal Procedure Act. In particular s 25D(2)(a) is intended to operate harmoniously with Divisions 2, 3, 4, 5 and 8 of Part 2 of Chapter 3 of that legislation. Section 59 Criminal Procedure Act, requiring a magistrate in committal proceedings to give an accused person an oral and written explanation of the scheme which applies under the Sentencing Act for the sentence discount which applies in the case of a guilty plea is of importance. The explanation would be misleading if the scheme was subject to the exercise of a flexible judicial discretion.
7. I accept Ms Wilkins submission that the purpose of s 25D is to impose a graduated discount based on the timing of the entry or indication of a plea of guilty with an emphasis upon the maximum discount of 25% being available only prior to committal while the matter remains in the Local Court.
8. Applying R v A2 ([32] - [33]) and considering the text and context of the provision together, bearing in mind, context is to be understood in its widest sense, in my opinion, the participle "vacated" as used in the definitional construct in s 25C, bearing in mind s 130 Criminal Procedure Act, means adjourned before the trial commenced. Interpolating this interpretation into my previous amplification (at [23] above) the meaning of s 25D(2)(b)(i) is: The discount for a guilty plea by an offender … is as follows - …. (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender - 1. pleaded guilty at least 14 days before the first day fixed for the trial of the offender or, if that day is adjourned before the trial commenced, the next day fixed for the trial that is not adjourned before the trial commenced. 2. …. I fully appreciate that the question of when a trial commences may admit of a different answer for different purpose: Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [78]; Stephens v R [2022] HCA 31 at [7]. But the language of the definition itself makes pellucidly clear that in either case the "day" in question is the day fixed for the commencement of the hearing of the trial.
9. To the extent to which it may be permissible and necessary to refer to extrinsic material to aid the interpretation of the provision (see s 34 Interpretation Act 1987 (NSW)), the interpretation I have proposed, it seems to me, is more consonant with the legislative purpose as expounded by the Attorney General of New South Wales in his second reading speech, where he said, inter alia (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 12): "The first day of trial is defined in proposed s 25C as the first day that the trial is listed. This provides a clear deadline from which a defendant can count back the 14 days to the day to which a guilty plea must be entered in order to be eligible for a 10% discount …. However, if the listing date is vacated - for example, where one of the parties is not ready to proceed and makes an application for vacation - and the trial is subsequently relisted at a later date, the new listing date will be the relevant date for the purpose of the definition of "first day of trial"."
10. Where the first day of trial is vacated in the sense of being adjourned before the trial commences by presentation of the indictment and arraignment, the clock is reset, and the provision provides an offender with another opportunity to enter a plea of guilty 14 days before the next day fixed for trial. Once a trial commences, however, the opportunity to obtain a 10% reduction is lost. A plea of guilty entered after the commencement of a trial attracts the reduction of 5% in any sentence that would otherwise have been imposed in accordance with s 25D(2)(c). And this is so whether the trial is aborted before empanelment, the jury is discharged after empanelment, or a new trial is necessary because the jury are unable to reach a verdict. This is so even if after a successful conviction appeal to the Court of Criminal Appeal, a guilty verdict is set aside, and a new trial directed.
11. The facts of the case at hand well illustrate the intended operation of s 25D(2)(b) in accordance with the interpretation I have proposed. The applicant did not enter a plea in the Local Court before committal; nor did he enter a plea 14 days before 23 March 2020, which was the first day fixed for his trial, however, that date was vacated on 20 March 2020. That is to say, it was adjourned before the commencement of his trial for COVID reasons. This adjournment, notwithstanding it occurred within the 14 days period referred to in s 25D(2)(b)(i), "reset the clock" allowing the applicant another opportunity to obtain the benefit of the 10% reduction in sentence, but only if he pleaded guilty at least 14 days before the next day fixed for trial, 6 October 2020. He did not avail himself of this opportunity. Although no jury was empanelled, as events transpired, an indictment was presented when he was arraigned entering a plea of not guilty to both counts on the indictment before King DCJ. He then failed to appear in breach of his bail undertaking and was not brought back before the Court until he was re-arrested some months later under King DCJ's bench warrant.
12. It would be to afford s 25D a wholly unreasonable, if not absurd, meaning if in circumstances where the trial before King DCJ had been aborted because of his absconding, the remaining co-accused had to be tried separately for the same reason, and law enforcement resources had to be further expended to re-arrest him and bring him back before the court, the applicant then had a further opportunity to avail himself of the 10% reduction in sentence by treating the aborting of the trial before King DCJ after it had commenced as if the first day fixed for that trial had been vacated.
13. I reiterate that in my judgment "vacated" within s 25C(1) in context means adjourned before the commencement of the trial. O'Brien DCJ was correct in his interpretation. No question of re-sentencing arises and it is unnecessary to consider the other facts, matters and circumstances relevant to sentencing the applicant for these offences.
14. The orders I propose are: 1. Leave to appeal from sentence granted; 2. Appeal dismissed.

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