Hallak v R

Judgment 1R A HULME J: I agree with Davies J. 2DAVIES J: The Applicant was charged with having committed a robbery in company on 19 December 2011. He pleaded guilty on the morning the trial was due to start. The co-offender had pleaded guilty ten days earlier. 3The Applicant and the co-offender (who are brothers) were sentenced by Judge Colefax SC on 14 June 2013. The Applicant was sentenced to a non-parole period of three years and two months with an additional term of one year and one month. In fixing that sentence his Honour gave a discount of 5% in respect of the plea. 4The Applicant seeks leave to appeal to this Court on one ground only: Ground 1: The sentencing judge erred in the assessment of the discount to be afforded to the applicant for the utilitarian value of his plea of guilty. 5It is clear from the Applicant's submissions that the discount that he says he ought to have been accorded was one of 10%. 6It is only necessary to mention the facts briefly. 7A little after 8pm on 19 December 2011 the victim, Ms Miao, a 30 year old woman, boarded a train at Cabramatta railway station to travel to Carramar. The Applicant and his brother boarded the same carriage of the train. The victim alighted at Carramar, as did the Applicant and his brother. The Applicant and his brother followed Ms Miao. 8When she arrived at a pedestrian footbridge crossing Prospect Creek the Applicant grabbed her handbag. He took hold of her left arm in the bicep area and grabbed it with such force that she felt pain. The victim did not let go of her grip on her handbag. The Applicant's brother then put his hand around the front of her neck and squeezed so tightly that she had difficulty breathing. That caused her to release her grip on her handbag. She had in her handbag credit cards, other personal identification cards, a mobile phone, an iPod and a graduation certificate. 9The Applicant's brother looked through her handbag. The Applicant asked her if she had any money and she gave him a $10 note which she had in her pocket. She told the Applicant that he could keep everything in her handbag but she asked for her graduation certificate back. He said "No" and he gave the bag to his brother who then threw it with all its contents into Prospect Creek from which it has never been recovered. 10The Applicant had a criminal record for convictions including car stealing, committing an act of cruelty on an animal, aggravated assault with intent to rob and use corporal violence. All of those offences were ones for which he had been sentenced to periods of imprisonment. The present offence was committed whilst he was on parole for the offence of aggravated assault. 11He was arrested on 8 February 2012. His parole was revoked on 16 February 2012 and he served the balance of that sentence which expired on 28 October 2012. He remained in custody after that time by reason of his arrest on the present offence. 12The indictment was dated 18 July 2012 and the trial was fixed for 3 December 2012. As mentioned earlier, the Applicant pleaded guilty on the morning of the trial. In his Remarks on Sentence the Sentencing Judge said: The plea of guilty was entered very late in the proceedings, in fact, on the morning of the trial. I should give Mr Mohammad Hallak a discount of 5% for the late plea. 13His Honour said later that the co-offender's plea was entered some three weeks before the trial and he proposed to give the co-offender a discount of 10%. The Crown has pointed out that in fact the co-offender's plea was made ten days before the trial. 14At the hearing of the appeal the Applicant was represented by Mr Johnston of counsel who had come into the matter shortly before the appeal was heard and had not prepared the written submissions. 15The written submissions directed attention to what had been said in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [160] and particularly to the statement that the utilitarian value of the plea to the criminal justice system should generally be assessed in the range of 10%-25% discount on sentence. It was then submitted that because the co-offender was given a discount of 10% the applicant should have been given the same discount by reason of the temporal proximity to the Applicant's plea. 16Nowhere in the written submissions was it said how the Judge's selection of 5% amounted to error. The choice of a discount for a plea is within the discretion of a sentencing judge: Thomson at [10] and [72]. 17In Krotiris v R [2012] NSWCCA 28 it was similarly submitted that a 5% discount for the utilitarian plea of guilty was inadequate and was less than the range referred to in Thomson. In my judgment (Macfarlan JA agreeing) I held that it was open to the sentencing judge to conclude that a 5% discount for a plea which came at a late stage was appropriate having regard to what was said in Thomson and the other authorities that I there reviewed. 18Mr Johnston's submissions focussed on the alleged failure of the Sentencing Judge to provide adequate reasons for his conclusion that the Applicant should receive a discount of five per cent. He drew attention to what was said by Sully J (Mason P and Sperling J agreeing) in R v Johnstone [2004] NSWCCA 307 at [28]: ...[I]t seems to me to be in accord with relevant principle that a sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that led the Judge to that conclusion. 19It should be noted, however, that Sully J had noted earlier in that paragraph that there was a "total absence of any explanation of the decision to set the figure at 15 per cent" rather than some other figure. Such is not the position in the present case. His Honour's reasons were pithy but sufficient. 20I do not consider that his Honour was required to give more elaborate reasons than were provided. He made it clear that the plea was entered on the morning of the trial and that that was to be compared with the co-offender who had entered his plea at an earlier time. I do not consider that his Honour's mistaken reference to the co-offender's plea having been entered three weeks (rather than ten days) earlier is material. 21Mr Johnston also submitted that common practice engendered an expectation that a 10% discount is given for a plea on the first day of a trial. This, Mr Johnston said, raised the prospect that the Applicant was being punished for some other unspecified behaviour because a discount of only 5% was given. Error cannot, however, be established by pointing to an expectation derived from a common practice just as error is not established simply because a judge gives a discount outside the range suggested in Thomson. 22The range of discount referred to in Thomson is a guideline which creates no presumption nor entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty: R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12]; R v Araya [2005] NSWCCA 283 at [44]; and Tunivono v R [2013] NSWCCA 176 at [60]. 23The Applicant's counsel did not dispute that it was appropriate to have given the co-offender a 10% discount. It may be accepted that there is a material benefit in a plea being entered even as late as ten days before a trial is due to commence. A jury panel will not need to be assembled, witnesses will not need to present, the prosecuting authorities will not need to prepare the case for trial. In that way a smaller discount for a plea made on the morning of the trial needs no more elaborate reasons than were given. The plea's utilitarian value is self-evidently less than one given ten days before the trial. 24It was not contended that the discount for the Applicant should have been more than 10%. It is difficult to see how the Applicant could make good a submission that an allowance of 5% was outside the scope of the judge's discretion: cf Sullivan v R; Skillin v R [2008] NSWCCA 296 at [14] per Howie J. 25The overall effect of increasing the discount to 10% would be to subtract three months from the overall sentence given to the Applicant. It will rarely be appropriate for this Court to intervene to adjust a sentence by that amount. 26Even had error been established, no lesser sentence than that given by the Sentencing Judge was warranted. The offence was committed with a degree of planning when the Applicant was on parole for an offence of a similar type. He was accorded some leniency by the backdating of his sentence to a date earlier than the expiry of the sentence he was serving from the prior offence after his parole had been revoked. 27There was no point of principle that justified the present appeal being brought particularly in the light of Krotiris. In those circumstances I would propose that leave to appeal be refused. 28ADAMSON J: I agree.