The application
10Her Honour allowed a discount of 20% for the utilitarian value of the applicant's pleas of guilty. The ground of the application is that it should have been 25%, the maximum for the utilitarian value of a plea of guilty envisaged in R v Thomson and Houlton (2000) 49 NSWLR 383. To understand the argument, it is necessary to examine the procedural history of the matter.
11As I have said, the applicant was arrested on 12 April 2008 and remained in custody thereafter. He was observed to be mentally ill and on 14 April police took him to Manly Hospital. He was discharged the same day and returned to prison. On the next day, 15 April, he was charged with:
(1) detaining for advantage in circumstances of aggravation (s 86(2)(b) of the Crimes Act );
(2) assault occasioning actual bodily harm (s 59(1) of the Crimes Act );
(3) administering an intoxicating substance with intent (s 38(a) of the Crimes Act );
(4) sexual intercourse without consent (s 61I of the Crimes Act );
(5) administering poison with intent (s 41 of the Crimes Act ).
12On a number of occasions between then and November 2008, he exhibited psychotic symptoms and was examined by psychiatrists, who prescribed medication. At the end of September 2008, his solicitor initiated negotiations with the Crown about pleas of guilty to a reduced number of charges. It was proposed that he plead guilty to the first charge, aggravated detaining for advantage and the fifth charge, administering poison with intent, and that the remaining charges not be pursued. The Crown accepted that offer, and on 13 November 2008 he was committed to the District Court for sentence on those two charges only.
13In preparation for the sentence proceedings, his solicitors obtained a psychiatric report from Dr Stephen Allnutt. The sentence hearing was listed for 9 October 2009. However, on that day Dr Allnutt assessed him in the cells and noted some symptoms of mental illness. During that consultation, he told Dr Allnutt that when he was arrested he wanted to plead not guilty but decided to plead guilty in the expectation of a 25% discount of sentence. Dr Allnutt explained to him the defence of mental illness, and observed him to become "very ambivalent" about his decision to plead guilty. In the light of that ambivalence and those psychotic symptoms, the doctor questioned whether he was fit to plead.
14Accordingly, the proceedings were adjourned that day. Further reports were obtained from Dr Allnutt and, for the Crown, from Dr Samson Roberts. On 31 May 2010, a fitness inquiry was conducted before the Chief Judge, Blanch J. Supported by the psychiatric evidence as it then stood, his Honour found the applicant fit to plead (although apparently only "just" so).
15In the meantime, the Crown had changed its position about the appropriate charges. It became necessary in the District Court to present an indictment because there was a procedural defect in the committal document. A fresh indictment was prepared containing three counts, aggravated detaining for advantage, attempting to administer poison with intent and aggravated sexual intercourse without consent. The first two charges were the committal charges, except that the second charge was not administering poison with intent but attempting to do so. For present purposes, nothing turns on that difference.
16Following further discussions between the applicant's solicitor and the Crown, it was agreed that the charge of aggravated sexual assault would not be proceeded with if he pleaded guilty to the other two charges. That is what happened when the matter came back before Blanch J on 4 June 2010. Accordingly, the position following the applicant's committal for sentence was restored. There were two related charges on a certificate under s 166 of the Criminal Procedure Act 1986, which were also not proceeded with.
17The matter did not proceed to hearing on 4 June, and it came before the sentencing judge on 30 July 2010. Both the Crown and the applicant were represented by counsel other than those who appeared in this Court. On that day, the Crown prosecutor sketched the procedural history of the matter in the Local Court and the District Court. She started by recording that the applicant had pleaded guilty in the Local Court, but not until after several months had elapsed during which there were several adjournments. Asked by her Honour whether the pleas qualified as having been entered at the earliest opportunity, the Crown prosecutor submitted that it was not the earliest and that they should entitle the applicant to a discount in the order of 20% rather than 25%. Counsel then appearing for the applicant made no comment at that point, and he put no submission about the appropriate discount at any stage of the proceedings.
18In her remarks on sentence her Honour made no reference to the pleas of guilty entered in the Local Court. In allowing the 20% discount, she said no more than that the applicant had entered an early plea of guilty immediately after the issue of his fitness to plead was resolved.
19Counsel for the applicant in this Court, Mr Carroll, submitted that he was entitled to a discount of 25%. He noted that the pleas of guilty entered in the District Court on 4 June 2010 were, effectively, the same as those which he had entered in the Local Court on 30 November 2008. Accordingly, he argued, they should have been treated as having been entered in the Local Court, a fact which her Honour appeared to have overlooked. What her Honour's remarks convey, Mr Carroll submitted, is that she mistakenly treated them as having been entered for the first time in the District Court after the issue of fitness to plead had been resolved, and her discretion in assessing the discount for their utilitarian value thereby miscarried.
20Insofar as there was delay between the applicant being charged and his pleading guilty in the Local Court, Mr Carroll noted that for much of that period he was being treated for his mental illness and, no doubt, was not in a position to make an informed decision about how to plead. For him, Mr Carroll submitted, the earliest opportunity to enter a plea was the time at which his mental illness was sufficiently resolved to be able to do so. The delay in the progress of the matter in the District Court, he added, was also attributable to the applicant's mental illness and the need to determine his fitness to plead.
21Reference was made to the remarks on sentence of Whealy J in R v Sharrouf [2009] NSWSC 1002. In that case the offender suffered from chronic mental illness. He was arrested in November 2005 for offences of a terrorist nature under Pt 5.3 of the Commonwealth Criminal Code Act 1995, was committed for trial in the Supreme Court at the end of April 2007, was found unfit to be tried in mid 2008, after treatment in custody was found fit to be tried in early 2009, and pleaded guilty to the offence for which he stood for sentence early in August 2009. The charge to which he pleaded guilty followed negotiations between his representatives and the Crown. Although he was being sentenced for a Commonwealth offence, Whealy J decided to quantify the discount he would allow for the plea of guilty. He specified a discount of 25%, noting that it was common ground between the Crown and the offender's counsel that the plea was entered at the first available opportunity. His Honour added, "In view of the offender's mental illness at the time of his arrest and during the following years, that must be so": [67].
22Howie J adopted a similar approach in his remarks on sentence in R v Zeilaa [2009] NSWSC 532. That offender was committed for trial for the murder of his wife. He suffered from a mental illness. A question arose as to his fitness to plead but, upon a trial of that issue, his Honour found that he was. He was then arraigned for murder, but the Crown accepted his plea of guilty to manslaughter in discharge of the indictment on the basis of substantial impairment. His Honour noted that the offender had always acknowledged criminal responsibility for the death of his wife, and that a plea of guilty to manslaughter had been foreshadowed before he was committed for trial. He found that, in the circumstances, the plea was entered at the first reasonable opportunity and allowed a discount of 25%. In this case also, the Crown prosecutor had conceded that that was the appropriate course.
23At [17] and [18] of the remarks, Howie J said:
"17 The offender pleaded guilty to manslaughter when first arraigned. The arraignment was deferred because of genuine questions raised about the offender's fitness to plead. It was not until that issue could be determined, through evidence given at a hearing, that any question of the nature of his plea could realistically be considered.
...
18 A plea of guilty at arraignment will not normally result in the maximum discount for the utilitarian value of the plea: R v Borkowski [2009] NSWCCA 102. The Court of Criminal Appeal has expressed the view that a delay in the plea will usually impact upon its utilitarian value whatever the reason for the delay: Tazelaar v R [2009] NSWCCA 119. But the amount to be awarded by way of discount is discretionary and it is accepted that there can be unusual situations where fairness may impact upon the determination of the appropriate discount."
24The Crown prosecutor in this Court emphasised that the assessment of the discount for the utilitarian value of a plea of guilty is discretionary, and submitted that it was open to her Honour to arrive at the discount she did. He noted that, while her Honour did not refer to the pleas of guilty entered in the Local Court, she was told by the prosecutor that that is what had happened and could not have been unmindful of it. He argued that her Honour should be seen as having arrived at the discount of 20% after consideration of all the circumstances, and that she did not merely adopt the unchallenged figure contended for by the prosecutor. He noted that the psychiatric material conveys that the applicant was in two minds about whether to maintain his pleas of guilty in the Local Court, and that he gained a forensic advantage by ultimately pleading guilty to the present two charges because other charges which might have been available were not proceeded with.
25Of course, the assessment of a discount for the utilitarian value of the plea of guilty is discretionary and depends upon the circumstances of the case at hand. However, in my view, the fact that the applicant pleaded guilty in the Local Court, and effectively to the same two charges for which he was dealt with in the District Court, was an important matter in determining the appropriate discount. I think it likely that her Honour overlooked it. She reserved judgment at the end of the sentence proceedings and passed sentence two weeks later. However that may be, I am satisfied that in arriving at the discount she did her Honour failed to have regard to that relevant matter. Accordingly, her discretion miscarried and it falls to this Court to determine whether some other sentence should be passed.
26In my view, the Court should intervene and re-sentence the applicant. The delay in the entry of the pleas of guilty both in the Local Court and again in the District Court can fairly be attributed to his mental illness. I do not consider that the utilitarian value of those pleas is reduced by the fact that they were the subject of negotiation whereby other charges were not pursued. That was also the case in both Sharrouf and Zeilaa . As in those cases, the charges to which the applicant pleaded guilty were appropriate to reflect his criminality.
27Mr Carroll calculated the figures which would be produced if the 25% discount were applied to both the head sentence and the non-parole period which her Honour imposed. The head sentence would be reduced from 5 years to a little under 5 years and 2 months, and the non-parole period from 3 years to a little over 3 years and 3 months. Given that this Court must re-sentence in the exercise of its own discretion, it is not necessary to approach the matter in a mathematical way. What those figures demonstrate, however, is that to allow the additional 5% discount would lead to no more than a modest adjustment of her Honour's sentence. The question arises whether such an adjustment would amount to no more than tinkering. However, the Crown prosecutor in this Court, fairly, did not submit that it would. The reduction of sentence which I propose, though modest, is not insignificant.
28Rounding off the figures, I think that the appropriate sentence is imprisonment for 5 years with a non-parole period of 3 years and 3 months.
29Accordingly, I would grant leave to appeal and allow the appeal. On the charge of detaining for advantage in circumstances of aggravation, I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to a non-parole period of 3 years and 3 months, commencing on 12 April 2008 and expiring on 11 July 2011, and a balance of term of 1 year and 9 months, commencing on 12 July 2011 and expiring on 11 April 2013.
30HALL J: I agree with the reasons and orders proposed by Hidden J.