Hoswell v R

(Subs(5) provides that the existence of any mitigating factor does not require the court to reduce the sentence for the offence.) 43 S22 is in the following terms: "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 may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court." 44 The sentencing judge opened his remarks on sentence by noting that the applicant had pleaded guilty before a magistrate and had maintained that plea. Thereafter he made no reference to the plea of guilty or to its timing. In R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Spigelman CJ, with whom all other members of the Court agreed, promulgated a guideline with respect to the manner in which a plea of guilty should be treated. That guideline included the following: "[160] ... (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. 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. ...

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. ..." 45 During the course of the sentencing proceedings the Crown Prosecutor conceded that the applicant was entitled to "up to 25% utilitarian discount for early plea". The judge made no other reference to the plea of guilty. He made no finding about the utilitarian value as evidenced by the time at which it was entered, or any other relevant consideration. He did not indicate that he had, as required by s22(1), taken the plea into account and did not indicate either that he had or had not imposed a lesser penalty than he otherwise would have by reason thereof. If he did not, he did not give reasons, as required by s22(2), for declining to do so. 46 In my opinion this ground of appeal has been made good. The Crown sought to take comfort from the opening words of the remarks on sentence, when his Honour noted that the applicant had pleaded guilty before a Magistrate and had maintained the plea in the District Court, and submitted that the judge was "plainly conscious" both of the timing of the plea and its importance in sentencing. I cannot accept this. That sentence was merely introductory. There is nothing in the remarks on sentence to indicate that, in accordance with s21A(3)(k) and s22 of the Sentencing Procedure Act, the timing of the plea was considered, or that the sentence was in any way reduced by reference thereto. It is true that it is not always necessary or appropriate that a sentence be reduced by any specific amount (whether quantified or not) (Regina v Heikkinen [2006] NSWCCA 50; R v Daley [2003] NSWCCA 109). But it is conventional to do so, and s22 contains a clear indication that an offender who pleads guilty may ordinarily expect a reduction in sentence. I can see no reason in the present case not to allow the applicant some discount in respect of the plea and the Crown expressly conceded as much at the sentencing proceedings. If it is the case, as I think it is, that the judge did not reduce the sentence by reason of the plea, he failed to comply with the obligation imposed by s22(2), to explain to the applicant, and record the reasons for, that decision. 47 I am satisfied that error in this respect has been demonstrated.

Ground 1(b) - remorse and rehabilitation 48 S21A also requires a sentencing court to take into account whether: "(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise" "(i) ... the offender has shown remorse for the offence, by making reparation for any injury, loss or damage or in any other manner" 49 The applicant presented a serious case on rehabilitation, of the kind that has come to be known, somewhat colloquially as a "cross-roads" case. He gave oral evidence and provided documentary material that raised a significant factual basis that, if accepted, could have warranted a positive finding that he had, in reality, turned the corner. It may immediately be observed that that case was belied by past history, and may have been very hard indeed to sustain. But it was presented for determination and called for an assessment of its veracity. The applicant was entitled to, and was denied, adjudication on that case. 50 I accept that error has also been demonstrated in the treatment of the applicant's subjective case, particularly in respect of his evidence, and that of Ms Palmer, concerning his asserted rehabilitation. The difficulty in respect of this evidence is that his Honour made no findings of fact at all, and this Court does not have the benefit of observing the applicant as he gave evidence. All I can say is that the applicant's letter is a compelling document, as is that of Ms Palmer. It is a pity that counsel merely offered to call Ms Palmer, allowed himself to be discouraged by his Honour, and failed to take the responsibility of deciding whether to call her or not. Nevertheless, significant evidence was put before the sentencing judge that would, if accepted, have permitted a finding of positive prospects of rehabilitation. It is, of course, the case that his Honour might, after consideration of the evidence, have rejected it, and, indeed, it may be inferred that this is what happened. The applicant's history was a persuasive, and objective, indicator against a positive finding that his rehabilitation prospects were good. But the statement that the applicant's solicitor had not advanced any "mitigating circumstances" does not promote confidence that the case was considered and rejected. Rather, it suggests that the applicant's case was overlooked. In my opinion, the applicant was entitled to an express finding in relation to this evidence. The evidence was more than mere assertions of contrition, remorse, and regret; there was some concrete evidence advanced by the applicant, of having undertaken educational courses, and of having remained drug free.

Ground 1(c) - protective custody 51 That an offender spends time in protective custody can be relevant to two aspects of sentencing; where there is evidence that the protective custody makes the conditions of custody more onerous, that is a circumstance which may be taken into account in the selection of the sentence, including the non-parole period; it may also be relevant to the determination of whether special circumstances under s44 exist. Here, there was express evidence, unchallenged, given by the applicant that, as a consequence of his protective custody status, he was deprived of the opportunity to participate in the educational courses in which he had previously engaged. This was not taken into account in the selection of the sentence, and was rejected as a basis for a finding of special circumstances. 52 Again, it would have been open to the sentencing judge to reject the evidence given - although, in the absence of any cross-examination or challenge by the Crown, it is difficult to see how that could have been properly done - but the fact is that no consideration was given to it. In my opinion, the applicant was entitled, at least, to a finding on this issue.

Ground 2 - special circumstances 53 The judge expressly declined to find special circumstances under s44. In doing so he referred only to the applicant's information and evidence that he was serving his sentence in protective custody. But there was another aspect of the sentence relevant to the s44 determination. The sentencing judge specified that the sentence was to commence on 17 December 2004. This date was selected because the previous day was the expiration of the non-parole period in relation to the previous offences. He thus accumulated the sentence upon the earlier sentence. It was open to his Honour to take this course and no complaint is made that he did so. 54 However, taking into account the accumulation of sentences, the total effective sentence lost the s44 proportion which his Honour intended, expressly, to maintain. In my opinion this was an error and ought to be adjusted.

Ground 3 - manifestly excessive 55 The submission was made that, given that the offence was not aggravated by accompanying vandalism or other significant damage to property, and given the relatively low monetary value of the property stolen, and the absence of any sentimental value attaching to the property stolen, the sentence imposed was manifestly excessive. 56 Having regard especially to the applicant's record, I do not think this submission ought to be accepted. The sentence was well within the available range. I would reject this ground of appeal. * * * 57 In the light of the accumulation of the errors which I consider affected the sentence, it is necessary that the applicant be re-sentenced. As against that possibility, this Court received affidavit evidence affirmed by the applicant. This evidence merely updated what had been before the sentencing judge and confirmed the applicant's continuing efforts at rehabilitation. 58 While it is readily open to this Court to correct the error concerning the treatment of the plea of guilty, and the error concerning special circumstances, it is not so easy for this Court to deal with the errors concerning the evidence of rehabilitation. In my opinion this evidence was potentially of very considerable significance. It was, indeed, critical to the sentencing process. In the absence of any findings of fact about the credibility of the applicant and, to a lesser extent, Ms Palmer, it is difficult for this Court to substitute its own view for that of the sentencing judge. This Court is not in any position to make any assessment of the genuineness of the applicant's claims. 59 S12(2) of the Criminal Appeal Act 1912 permits this Court to remit a matter or issue to a court of trial for determination. In my opinion that is the appropriate course to take in this case. That is the order I propose. 60 BARR J: I agree with the Chief Justice. The applicant came before the sentencing court as a mature man who since 1993 had been dedicated to the commission of theft and kindred offences. Whatever the strength of his claim once more to be at the "crossroads", the objective seriousness of his latest offence was bound to attract a non-parole period of the order of that set by the sentencing judge. In my opinion the appeal should be dismissed because no lesser sentence was warranted in law.

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