Krotiris v R

9The Applicant was originally charged with 3 offences as follows: Count 1:Aggravated attempted break, enter and commit serious indictable offence; Count 2:Attempted break, enter and commit serious indictable offence (in the alternative); and Count 3:Enter dwelling house with intent to commit a serious indictable offence. 10Count 3 was subsequently amended to a charge of aggravated enter dwelling with intent to commit a serious indictable offence. 11The Applicant was committed to stand trial. 12The trial was listed in November 2009 but vacated because the Applicant changed his legal representation. It was then listed again in July 2010 but was vacated because the Applicant was sick. It was listed again in October 2010, but was vacated for a third time because a Crown witness was not available. 13It then came on for hearing on 17 January 2011. The Applicant pleaded not guilty. Judge Cogswell conducted a voir dire concerning the admissibility of certain evidence. On 18 January 2011 Judge Cogswell ruled that this evidence was admissible. On 19 January 2011 the Applicant pleaded guilty to the offence of steal from dwelling house, and consented to an offence of attempted break, enter and commit serious indictable offence being taken into account on a Form 1. 14It is apparent that the plea of guilty on 19 January together with the placing of the other offence on the Form 1 was consented to by the Crown. How that came about was not elucidated. Nor was there any evidence of whether there had been, and if so what, negotiations about a plea prior to 19 January 2011. This absence of evidence left the Court in an unsatisfactory position given the added ground of appeal. 15Judge Cogswell determined that the plea of guilty was at a very late stage and he only allowed a discount of a little over 5% for that plea. The sentence

16At the time he sentenced the Applicant Judge Cogswell had available to him the Remarks on Sentence by Judge King in respect of Mr Schoultz. I shall return to that presently. 17Judge Cogswell noted that the Applicant had a bad criminal record which included prison sentences for stealing, for possessing implements to break into a car, for having goods in custody, and for supplying prohibited drugs on an ongoing basis. He had other offences of break, enter and steal and obtain money by deception. Judge Cogswell described it is as a very bad record for a thirty-four year old man. He noted further that the offence charged was committed whilst the Applicant was on conditional liberty. 18The Judge took into account that the Applicant was not the person who actually entered the unit - that was Mr Schoultz. His Honour also found that the offence charged fell at the lower end of the range, a finding consistent with that made by Judge King to which Judge Cogswell referred. 19Judge Cogswell then turned to consider the Applicant's subjective circumstances. He read a psychologist's report from Tim Watson-Munro. The report confirmed evidence and other information that the Applicant had had a serious heroin habit for some years. He had been through the Drug Court and had been part of the program administered by that Court. He was successful for some time but lapsed when a woman who was pregnant with his child suffered a miscarriage. The Sentencing Judge noted that at the time of the offence charged the Applicant was in a stage of relapse. 20At the time of the sentence the Applicant had re-established himself on the methadone program. His Honour further noted that Mr Watson-Munro described the Applicant as depressed and anxious. Mr Watson-Munro reported that the Applicant expressed considerable remorse for his behaviour which Mr Watson-Munro believed to be genuine. His Honour noted that the remorse was confirmed by the Applicant in evidence before him, and his Honour said that he took it into account. Mr Watson-Munro also noted that the Applicant was willing to undertake treatment that could be offered to him, and noted that he had begun contact with an organisation which would assist him in the process of treatment. 21His Honour said that he regarded the appropriate penalty in all the circumstances to be 3 years in imprisonment. He discounted that by a little over 5% to impose a head sentence of 2 years and 10 months. His Honour, it may be inferred, found special circumstances, because he made specific reference to the non-parole period that would ordinarily be imposed by reason of such a head sentence and said he proposed to reduce it to a period of 18 months. 22An issue of backdating arose because by the time of the sentence the Applicant had served some time in custody, most of which could not be attributed to the offence for which he was being sentenced. However, because his bail conditions had been reasonably onerous his Honour said that he had generously backdated the sentence to allow a period of 2 months for the time he had spent in custody although, strictly, only 16 days could be attributed to the offence for which he was being sentenced.

Ground 2 - 5% discount for plea of guilty 23Given that a complaint of disparity accepts that the sentence imposed on an offender cannot otherwise be challenged (Rae v R [2011] NSWCCA 211 at [60]), it is convenient to deal first with this new ground. If error is demonstrated in relation to the discount such an error may be sufficient to explain the disparity in the sentences given to the co-offenders. 24Judge King noted that Mr Schoultz entered a plea of guilty at the earliest opportunity. Accordingly, he gave him a 25% discount for the utility of that plea. 25I have made mention of the difficulty in dealing with this ground of appeal because of the paucity of information concerning negotiations, if any, in relation to a plea of guilty prior to the plea being entered on 19 January 2011. It seems to me it is incumbent upon the Applicant, who argues this ground of appeal, to produce appropriate evidence to show that there was an error on the part of the Sentencing Judge in only giving a 5% discount. 26A reading of the transcript of the sentencing hearing makes two things clear. The first is that the Sentencing Judge was aware (as might be expected) that the indictment was amended only on 19 January 2011 to charge the present offence. The second is that the only reference made by the Applicant's counsel to the guilty plea and any discount was a submission that Mr Schoultz received a benefit of an early plea by the discount he was given by Judge King. No other submission was apparently made suggesting that there should be a discount for the guilty plea by the Applicant or what discount that should be. 27At the hearing of the appeal the Applicant's present counsel suggested that the discount ought to have been 15%. He made reference to comments by Howie J (with whom McClellan CJ at CL and Grove J agreed) in Sullivan v R; Skillin v R [2008] NSWCCA 296 at [15]-[17], and to what was said by Hodgson JA in R v Dib [2003] NSWCCA 117 at [8]. 28In Sullivan the applicants were charged with a number of offences of disposing of motor vehicles contrary to s 188 of the Crimes Act 1900. Such offences are commonly known as re-birthing of motor vehicles. The relevant history concerning the pleas is to be found in Howie J's judgment at [8]: The matters have a long history. Both of the applicants were arrested in May 2004. The applicant Skillin admitted to police disposing of the vehicles but maintained he did not know they were stolen. The applicant Sullivan refused to be interviewed by police. They were committed for trial to the District Court on 7 April 2005. The matters were first before that court in September 2005. There were numerous adjournments while the Crown served material on the applicants and determined what charges would proceed and how the applicants would be indicted. In March 2007 a trial date of 16 July 2007 was fixed. Eventually there were successful negotiations between the applicants and the Crown resulting in the indictment of 19 July 2007 to which the applicants pleaded guilty on arraignment. 29What seems to be suggested, although it is not made quite clear, is that the original charges differed from those contained in the indictment of 19 July 2007 to which the applicants pleaded guilty. 30The sentencing Judge in that case gave a discount of 15%, saying that the pleas involved significant utilitarian value, but she also said the "late negotiation and entry of pleas meant that the Crown had to prepare for the trial or series of separate of trials, therefore the utilitarian value of the pleas was diminished by their being made at that stage". 31Sullivan argued that the discount should have been at least 20%. Howie J went on to say: [14] ... The short answer is that this Court would not generally find that there was an error in the exercise of discretion in choosing a discount of 15 per cent rather than one of 20 per cent, in particular where the Judge gives reasons for determining the discount chosen. [15] The applicant seeks to obtain support from what I said in R v SY [2003] NSWCCA 291 in the following passage of my judgment and in particular the sentence I have underlined: [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. 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. After that passage I quoted from the judgment of Hodgson JA in R v Dib [2003] NSWCCA 117 in which his Honour noted that pleas coming late in the proceedings will have less utilitarian effect and, therefore, attract a lesser discount. [16] I do not understand how the underlined passage of my judgment applies to the facts in this case. Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. He knew what offences he had committed even if the Crown was not in a position to prosecute him for those matters. If the accused waits as a matter of tactics before entering negotiations with the Crown then so be it, but he does not obtain the advantage of the full utilitarian value of an early plea. [17] At the hearing of the application, counsel for the applicant submitted that the Judge should have taken into account that whole history of the matter including the various charges that the Crown laid at different times during the period of the prosecution that did not find their way on to the final indictment. In my opinion none of this history changes the situation that the applicant knew what offences he had committed and what he was prepared to acknowledge whether the Crown had chosen to charge him with those offences or not. It is not unusual for persons to acknowledge to the authorities guilt of offences uncharged against them in an effort to clear the record and, as a result, be rewarded with what is known as an Ellis discount. A discount of 15 per cent was more than appropriate to meet the situation in this case. (emphasis added) 32In Dib the applicant was committed for trial on 17 December 2000 on a number of charges, one of which was that of being an accessory after the fact to murder. He and his co-accused were arraigned on 1 February 2001. The trial was listed to commence on 9 September 2002. The jury was empanelled on 11 September 2002. 33On that day the Crown presented a further indictment against the applicant of being an accessory after the fact to the malicious wounding of the deceased with intent to do grievous bodily harm. The applicant pleaded not guilty to the more serious charge but guilty to the lesser charge, and the Crown accepted that plea in full satisfaction of the indictment. The Sentencing Judge gave a discount for the utilitarian plea of guilty of 16.7%. The Sentencing Judge said that the discount for a plea of guilty would not be as great in a case where it involved a plea to a lesser charge as where it involved a plea to all charges brought by the Crown. 34This Court held that so holding was an error, and said that the plea should have been treated as one made at the earliest opportunity. However, the Sentencing Judge was not therefore bound to grant a discount of 25%. Hodgson JA (with whom Barr J agreed) said: [4] However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. [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. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. [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. [7] I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice. [8] However, in my opinion, the discount given in this case, namely 16.7%, was entirely appropriate, and for that reason the first ground of appeal fails. (emphasis added) 35The Applicant points to the similarity of events in those cases where a plea was made to an amended indictment at the earliest opportunity after such indictment was presented. The Applicant argues that the discounts approved by this Court in those cases provides an indication of what is appropriate in the present case. 36R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 was the guideline judgment in respect of discounts for pleas of guilty. Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove and James JJ agreed) said: [152] In my opinion, the appropriate range for a discount is from 10-25 percent. [153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. ... [156] Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. ... [159] It is also pertinent to state that a discount of 10-25 percent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances. [160] The Court should adopt the following guideline applicable to offences against State laws: ... (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent 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. 37In my opinion, limited use can be made in the present case of the judgments in Sullivan v R and R v Dib. The appeal in Sullivan was an appeal involving a complaint that the discount given for the plea was too low at 15% and should have been at least 20%. The reasons given by Howie J in Sullivan demonstrate a difficulty asserting any error in the exercise of discretion where it is said that rather than a discount of 15%, 20% should have been granted. Further, Howie J's remark about the appropriateness of 15% was that it was "more than appropriate" to meet the situation in that case. 38Dib was a crown appeal before double jeopardy was largely abolished, and it is not surprising that the Court was not prepared to interfere to adjust a discount in the circumstances of that case. However, the issue was whether a higher discount of 25% should have been granted. The statement about the appropriateness of a 16.7% discount must be seen in that context. 39The Applicant has further difficulties in the present case. The first is that, apart from mentioning that Judge King gave a discount for an early plea in relation to Schoulz, nothing else was put to the Sentencing Judge in the present case concerning a discount for a guilty plea. Mr O'Neil of counsel for the Applicant said that that was because the Applicant's counsel at the sentencing hearing was arguing for an intensive correction order. That is not a satisfactory explanation for failing to assist the Sentencing Judge to come to the view for which the Applicant now argues. 40Secondly, in the absence of evidence about negotiations, if any, prior to the amendment and the guilty plea, all that is known is that the trial date was vacated on three occasions, and that the Applicant only pleaded guilty after a decision on a voir dire and before the scheduled trial actually commenced. The Court was informed that the trial was estimated to take three days to a week. Nevertheless, it had been fixed three times for trial and vacated, and the trial judge was required to hear argument and rule on a voir dire that took two days of court hearing time. 41It may be accepted that the discount was at the bottom end of the range. However, if it is assumed (as this Court must) that there were no other negotiations for a plea prior to 19 January 2011, it was open to the trial judge to conclude that the value of the discount was small. Hodgson JA in Dib made it clear that the discount is not for the recognition of mitigation of culpability and that, despite a change in approach to the charges by the Crown at a late stage, the benefit to the community of a late plea is less, and justifies a lower discount. Further, this Court in Thomson recognised that in some circumstances a lower discount or no discount may be appropriate despite a plea. 42It seems to me that it was within the discretion of the Sentencing Judge to reduce the sentence by 5% for a plea which came at a late stage in the proceedings. In the absence of some evidence of an earlier offer by the Applicant to plead to the lesser charge ultimately brought, it cannot be said the Sentencing Judge's discretion miscarried. 43This ground fails.

Ground 2 - Parity 44The starting point for Mr Schoultz was 2 years 8 months. The starting point for the Applicant was 3 years. The Applicant argues that his role was the lesser of the two particularly because he did not enter the premises. The Applicant also submitted that counterbalancing the Applicant's worse record and the fact that the offences were committed whilst on conditional liberty was the second offence on Mr Schoultz's Form 1 and the subjective circumstances concerning the Applicant's addiction to heroin and his reason for relapse. 45It can be accepted that it is desirable that co-offenders should be dealt with by the same judge where that is possible. The reasons for this are conveniently summarised in Dwayhi v R; Bechara v R [2011] NSWCCA 67 at [33]-[46]. That may not have been possible in the present case because Schoultz pleaded guilty at an early time but the Applicant did not until a very late stage. 46Nevertheless, in Rae at [68] Johnson J, with whom McClellan CJ at CL and Hidden J agreed) said: This court has observed that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing Judge was fully aware of the sentences imposed upon a co-offender and the reasons for those sentences, and indicates in the sentencing remarks why the Judge is departing from the co-offender's sentence: Gill v R [2010] NSWCCA 236 at [58]. 47Judge Cogswell was fully aware of the sentence imposed on Mr Schoultz. He made express reference to the different roles of the offenders in the offence charged and the Form 1 offence common to both, the plea of guilty by Mr Schoultz and the discount he received, the assessment by Judge King of the objective seriousness of the offence, and the fact that both offenders were heroin addicts and were engaging in this and other offences to feed their habits. 48The Applicant places weight on what is said to be his less culpable role in the commission of the offence in that it was Mr Schoultz who actually entered the premises. In R v Sukkar [2011] NSWCCA 140 this Court said at [36]: Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], R v Darwiche [2006] NSWSC 1167 at [74], R v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). 49The Sentencing Judge made reference to the different roles of the offenders. Given the way the offences were committed, and in circumstances where the judge regarded the offences as relatively unplanned, there was little basis to make much, if any, distinction between the co-offenders' respective roles. It cannot be said, however, that his Honour overlooked the matter. 50His Honour also considered the two other matters earlier referred to, namely, the Applicant's criminal record and his being on conditional liberty at the time of the offence under consideration. Whilst his Honour did not expressly contrast the Applicant's position in those matters with Mr Schoultz's position, he was not obliged to do so. It may reasonably be assumed that his Honour had regard to Mr Schoultz's sentence and the factors influencing it when considering matters relevant to the Applicant's sentence. 51The Applicant's criminal record was significantly worse than Mr Schoultz's record. He had served prison sentences, often for multiple offences, on no less than five separate occasions, the most recent before the date of the offence in question being only six months earlier on 11 June 2008. One of the offences for which he was imprisoned on that day was a break enter and steal offence. By contrast, Mr Schoultz had not previously served a term of imprisonment. 52The Applicant was at the time of the offence, unlike Mr Schoultz, on conditional liberty as follows: (1) 30 April 2008 Parramatta Drug Court - (a) 9 months suspended sentence for Larceny, (b) 9 months suspended sentence for Drive Whilst Disqualified, (c) 12 months suspended sentence for Drive Whilst Disqualified, (d) 10 months suspended sentence for Obtain Money by Deception; (2) 30 May 2008 Burwood Local Court - (e) 18 months s 9 Bond for Drive Whilst Disqualified. 53The matters said to counterbalance these aggravating factors are the additional offence on Mr Schoultz's Form 1, and matters associated with the Applicant's heroin habit. 54The additional Form 1 matter was an offence of possess housebreaking implement without lawful excuse. That implement was a screwdriver. It was found on Mr Schoultz when he was arrested for the offences for which both he and the Applicant were charged. Bearing in mind that the screwdriver appears to have been intended for use in the joint criminal enterprise involving Mr Schoultz and the Applicant, the fact that Mr Schoultz had possession of it when arrested can scarcely be seen as a counterbalancing factor in the Applicant's favour. 55The issues relating to the Applicant's heroin habit are these. First, the Applicant points to the evidence he gave at the sentencing hearing that he was tricked into smoking heroin. A person with whom he was smoking marijuana put heroin into the marijuana without the Applicant realising it, and as result of that one incident he became addicted. Secondly, the Applicant said he was successfully on the methadone program, under the supervision of the Drug Court, when his fiance had a miscarriage of his twins a few months before the subject offence was committed. That caused his relationship with his fiance to end, and he lapsed back into using heroin again. 56His Honour heard the Applicant's evidence about these matters. He made express reference in his remarks to the fact that the Applicant lapsed because of the tragic circumstances of the miscarriage. Although his Honour did not refer to the Applicant's evidence about how he became addicted that may well have been because it was not safe to draw any conclusion from it in the absence of medical evidence that the Applicant's belief about the significance of the described incident was justified. 57What is clear is that his Honour had due regard to the Applicant's heroin habit and the reason for his relapse. He no doubt weighed those matters with others in fixing the sentence. He regarded the Applicant's bad criminal record and his being on conditional liberty when the offences were committed seriously because he mentioned both matters on two occasions. He was not wrong to do so. 58In Rae Johnson J said: [61] The test for determining whether there is a legitimate sense of grievance is objective. What has to be demonstrated by an applicant is not that he or she feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the applicant's grievance is justified: R v Wei Pan [2005] NSWCCA 114 at [34]; Dwayhi at [21]. ... [63] A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of a reasonable and impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed upon the other offender. What is required is a gross, marked, glaring or manifest disparity: England v R ; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [23]-[24]. 59Four months difference on a starting point of a sentence of 3 years could scarcely be said to give rise to a justifiable sense of grievance when judged objectively. That difference is neither gross, marked, glaring nor manifestly disparate. When the Applicant's criminal record and his conditional liberty at the time of the offences are additionally regarded that conclusion is comfortably confirmed. 60This ground fails. Conclusion 61I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed

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