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Miller v The Queen [2018] ACTCA 21 | Case summary | Zoe

ACTACTCA

Miller v The Queen [2018] ACTCA 21

[2018] ACTCA 21

Court of Appeal (ACT)|2018-06-01|Before: Murrell CJ, Elkaim and Wigney JJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2018-06-01

Before

Murrell CJ, Elkaim and Wigney JJ

Catchwords

APPEAL – In General and Right of Appeal – Appeal
against sentence – whether the primary judge erred in his assessment of
the appropriate
discount for the offender’s pleas of guilty and assistance

Source

Original judgment source is linked above.

Catchwords

APPEAL – In General and Right of Appeal – Appealagainst sentence – whether the primary judge erred in his assessment ofthe appropriatediscount for the offender’s pleas of guilty and assistanceto authorities – where the Crown made submissions on the appropriaterangeof discounts

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Miller v The Queen

Citation: [2018] ACTCA 21

Hearing Date: 14 February 2018

Decision Date: 1 June 2018

Before: Murrell CJ, Elkaim and Wigney JJ

Decision: See [22]

Catchwords: APPEAL – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in his assessment of the appropriate discount for the offender’s pleas of guilty and assistance to authorities – where the Crown made submissions on the appropriate range of discounts

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 35 and 36 Criminal Code 2002 (ACT) ss 338, 603 and 717 Corrections Management Act 2007 (ACT) s 145 Drugs of Dependence Act 1989 (ACT) s 164 Supreme Court Act 1933 (ACT) s 37O

Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Cranfield v The Queen [2018] ACTCA 3 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gillard v The Queen [2016] ACTCA 50 Hartman v Director of Public Prosecutions (Cth) [2011] NSWCCA 261 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lin v The Queen; Ng v The Queen [2016] NSWCCA 200 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Ma v The Queen [2010] NSWCCA 320 Monfries v The Queen [2014] ACTCA 46 R v Barrientos [1999] NSWCCA 1 R v Cartwright (1989) 17 NSWLR 243 R v El Hani [2004] NSWCCA 162 R v Ellis (1986) 6 NSWLR 603 R v Gallagher (1991) 23 NSWLR 220 R v M [2005] NSWCCA 224 R v Ngata [2015] ACTSC 356 Pang v The Queen [1999] NSWCCA 4; 105 A Crim R 474 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Toumo’ua [2017] ACTCA 9 Ryan v The Queen [2001] HCA 21; 206 CLR 267 SZ v The Queen [2007] NSWCCA 19; 168 A Crim R 249 Wang v The Queen [2010] NSWCCA 319 Williams v The Queen [2018] ACTCA 4 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zhang v R [2011] NSWCCA 233

The same reasoning should apply to a suggested discount for assistance. In this case the Crown prosecutor submitted that the discount, including the discount for the plea of guilty, should be in the order of 30 to 40%. The sentencing judge effectively halved the suggested discount.
Although there is no specific complaint that the discount of 10% for the plea of guilty was too low, the combined discount of 20% is the subject of the appeal. In our view the Crown’s submission to the sentencing judge, whether or not it should have been made at all, was a correct analysis of the appropriate discount to be applied.
The plea of guilty was entered almost three months before the trial was due to commence. This was not a last-minute plea where the utilitarian value might be regarded as low. It was also not a plea at the earliest opportunity. We think a discount of up to 20% for the plea would have been appropriate and that this should have been combined with a discount of about 20% for the assistance provided. A combined discount is not necessarily a simple addition of the two discounts but rather an evaluative process guided by the two discounts in the overall circumstances of the case. Thus an overall discount of 35% would have reflected a correct conclusion.
The sentencing judge’s result of a discount of close to half of what it ought to have been is enough to identify error of the type described in House v The King (1936) 55 CLR 499. Further, the sentencing judge did not make any specific assessment of the level of assistance.
It is difficult therefore to know if his Honour reached his conclusion of 10% on the basis of any specific finding about the assistance. If, as is our view of the assistance, his Honour felt there had been significant assistance, then there is error in the level of the discount. If, on the other hand, his Honour was of the view that the assistance was not at a high level, then that view of itself would constitute an error.
We now turn to the complaint made by the appellant about the Series 3 offences. The appellant says the discount should have been 25%. The appellant apparently received a discount of 20% for the plea of guilty. However, Series 3 was made up of three separate sentences. On close inspection of these sentences it can be seen that the 20% discount was only applied to the first of these sentences. The other two were reduced by 25%. There can therefore be no complaint about the two sentences which were reduced from eight months to six months.
For the first of the Series 3 offences the reduction was from two years down to one year and seven months. This is an approximately 20% reduction. There is no dispute but that the plea was made at the earliest opportunity. The Court in recent judgments has stressed the importance of discounts especially where there has been a guilty plea (see R v Cranfield [2018] ACTCA 3 and Williams v The Queen [2018] ACTCA 4).
In our view, the discount in respect of the first of the Series 3 offences should have been 25%. This is not only based on the early plea but also to achieve consistency with the other Series 3 offences. Had we reached a similar conclusion to Wigney J about the Series 1 offence we may have been reluctant to suggest the exercise of any discretion restricted to the single Series 3 offence. However as we are of the view that the appellant should be resentenced in any event then, on resentencing, we will apply a 25% discount for all of the Series 3 offences.
As noted by Wigney J, there is no appeal against the length of any sentence imposed. The only complaint relates to the discounts. Applying what we think are the appropriate discounts to the sentences for the Series 1 and the first Series 3 offence, the result is as follows:

The appellant engaged in multiple drug transactions between 31 January 2015 and 30 May 2015. In the circumstances described later, the Crown ultimately presented an indictment containing a single “rolled-up” count of trafficking in a controlled drug during that period.
During the period 31 January 2015 and 2 February 2015, police intercepted SMS messages between the appellant and a supplier, in which the supplier offered to sell ‘balls’ of methamphetamine to the appellant. After obtaining search warrants for the appellant’s residence, police located a clip seal bag containing 0.822 grams of methamphetamine in the appellant’s pocket.
The appellant continued using her existing mobile phone number, albeit with a new mobile telephone handset, to sell drugs. On 13 February 2015, a warrant issued allowing police to access stored communications between the appellant and her apparent supplier. Another search warrant was executed on 25 February 2015 for the appellant’s residence. Police located a clip seal bag with a ‘Peace and Love’ motif on it containing 1.452 grams of methamphetamine, multiple empty clip seal bags containing the same ‘Peace and Love’ motif, multiple sets of scales and a green purse containing $3,824.55 in Australian currency. Later that day, police located a Nike brand ‘bum bag’ in the lounge room of the appellant’s residence containing two clip seal bags with the ‘Peace and Love’ motif with 1.799 grams of methamphetamine inside.
At the end of May 2015, the appellant entered into an agreement with Mr Stott, who was, at the time, remanded in the Alexander Maconochie Centre (AMC), to smuggle methamphetamine, heroin and cannabis into the AMC for further sale. After organising for an ‘eight-ball’ of methamphetamine to be made available so that it could be smuggled into the AMC, the appellant arranged for an associate of hers to attend Corrections ACT and pass the drugs to a prisoner at the AMC, who would then take them into the prison. The associate attended Corrections ACT, but did not get an opportunity to pass them to the prisoner.

The Sentencing Act contains detailed provisions concerning the discounting of sentences for guilty pleas and the provision of assistance to authorities.
Section 35 of the Sentencing Act relevantly provides:
The section applies if – (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. 2. In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49 3. The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. 4. However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. 5. For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. 6. A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
Section 36 of the Sentencing Act provides:
This section applies if – (a) an offender is convicted or found guilty of an offence; and (b) the offender assisted, or undertook to assist, law enforcement authorities in – i. preventing, detecting or investigating the offence or any other offence; or ii. a proceeding in relation to the offence or any other offence. 2. A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities. Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137). 3. In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters: (a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement; Note For who may make a victim impact statement, see s 49 (b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided; (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender (d) the nature and extent of the offender’s assistance or promised assistance; (e) the timeliness of the assistance or undertaking to assist; (f) any benefits the offender has gained or may gain because of the assistance or undertaking to assist; (g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist; (h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist; (i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence; (j) if the offender is to serve a sentence of imprisonment – the likelihood that the offender will commit further offences after release from imprisonment. 4. A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

So subsection (3) of section 36 is really the gravamen of the provision and what your Honour has to consider. With respect to 33(3)(b) where it talks about the usefulness, I would certainly have to concede that it has been quite useful in that it’s certainly my position based on discussions with Mr Stott’s representatives that but for the offender’s offer of assistance, which was promptly conveyed to Mr Stott’s defence, he would not have agreed to plead guilty. So certainly her undertaking to assist was instrumental in securing his plea. That will have to be accepted. With respect to paragraph (e) – the timeliness of the assistance, it certainly was useful at the time it came but it wasn’t given at the earliest opportunity. In my submission, in order to attract maximum discount available for assistance, the offender would have had to have made the offer or provide the assistance at an early opportunity. She didn’t here – and that assistance would have had to have been as wholesome as possible. Now, whilst her undertaking was useful, she never gave an account or a version to police – which ultimately is the most useful productive thing she could have done. So for example, in Mr [name redacted] matter he provided police with a full interview where he laid out there the conduct of all his co-offenders and he did that at an earlier stage in the proceedings. So whilst I certainly accept that it was very useful what she did, it was relatively late in the piece and it wasn’t the most comprehensive type of assistance that could be proffered. It would be my submission to your Honour that when your Honour has regard to the timing of the pleas with this, your Honour would be looking at a discount somewhere in the vicinity of 30 to 40 per cent. To get that 50 per cent you would have been all pleas in the Magistrates Court and timely assistance from earlier in the piece than did happen here. But nonetheless it was quite valuable. So I’d submit 30-40 per cent in that respect.

The applicable principles in relation to fixing a discount on a sentence for assistance to authorities have been considered in numerous decisions of the Court of Criminal Appeal of the Supreme Court of New South Wales. While many of the principles and relevant considerations are now effectively codified in s 36 of the Sentencing Act, it is worthwhile referring to what the authorities have said about the fixing of the discount. That is particularly so because the cases that refer to the “general range” of the discount must be considered in light of the principles established in those authorities.
Matters which may be relevant to an assessment of the degree to which an offender has provided cooperation to law enforcement agencies include: the effectiveness of the cooperation and its practical value to law enforcement agencies (Ma v R [2010] NSWCCA 320 at [28]; Zhang v R [2011] NSWCCA 233 at [33]; R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at [53] (‘Sukkar’); R v El Hani [2004] NSWCCA 162 (‘El Hani’) at [73]; R v Barrientos [1999] NSWCCA 1 at [47]; R v Gallagher (1991) 23 NSWLR 220 (‘Gallagher’) at 232-233); the extent to which the offender has disclosed everything of relevance and not tailored the disclosure to material already known (Wang v R [2010] NSWCCA 319 at [36]; R v Cartwright (1989) 17 NSWLR 243 at 252- 255); the extent to which the cooperation relates to offences which are otherwise difficult to detect and investigate (Hartman v Director of Public Prosecutions (Cth) [2011] NSWCCA 261 at [96]); the extent to which the cooperation disclosed the offender’s guilt in respect of other offences (R v Ellis (1986) 6 NSWLR 603 at 604; Ryan v The Queen [2001] HCA 21; 206 CLR 267); and whether the offender’s cooperation caused others to cooperate (Lin v The Queen; Ng v The Queen [2016] NSWCCA 200 at [10]).
While the authorities concerning cooperation in the sentencing context routinely refer to a “discount” for cooperation, there is no obligation for the sentencing court to separately quantify a discount for cooperation. Indeed, it may be impossible or inappropriate to specify a separate discount where cooperation forms part of a complex of interrelated considerations relating to the plea of guilty, contrition and rehabilitation: Gallagher at 227-228; El-Hani at [68].
The authorities are also replete with statements about the usual or “customary” range, which is typically said to be between 20 and 50%: see, for example, R v M [2005] NSWCCA 224 at [21]-[22]; Sukkar at [3], [5], [50], [54], [56]; Pang v The Queen [1999] NSWCCA 4; 105 A Crim R 474 (‘Pang’) at [13]. It has been said that a discount exceeding 50% should be reserved for an exceptional case: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3], [53].
In this jurisdiction, in R v Ngata [2015] ACTSC 356 Refshauge J said (at [58]):

The critical point to note, however, is that while the authorities refer to a customary range of potential discounts, there is no fixed tariff or range for a discount for cooperation: Pang at [13].
Nor should a sentencing judge necessarily take a mathematical or multi-tiered approach to the fixing of a sentence where the offender has cooperated with the authorities: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 373-375; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37]. The determination of whether a lesser sentence should be imposed because the offender cooperated with the authorities and, if so, the amount of any discount, is ultimately a discretionary decision which forms part of a complex of interrelated considerations.
Because the determination of the level of any discount for cooperation is discretionary, an appellant who challenges a sentence on the basis of the level of the discount must establish that the sentencing judge acted upon a wrong principle, or took into account irrelevant considerations, or failed to take into account irrelevant considerations, or that the reduction or discount was “unreasonable or plainly unjust”: House v The King (1936) 55 CLR 499 (‘House’) at 505.
The appellant did not articulate exactly how it was contended that the sentencing judge erred in fixing the discount. There was no suggestion that the sentencing judge failed to take into account a relevant consideration, or took into account an irrelevant consideration, or acted on any wrong principle. The appellant’s submission was simply that “[p]roper quantification of the value of the assistance would have resulted in a discount of 30%, and a combined discount of 40%, on the sentence imposed”. That submission was apparently premised on the contention that the value of the assistance provided was “at a very high level”. The basis of that contention, and why it necessarily compelled a discount of 30%, was not explained or developed at all in the appellant’s submissions. The appellant did not complain about the discount of 10% that the primary judge fixed in relation to the plea of guilty.
The difficulty for the appellant is that the evidence that was before the sentencing judge in relation to the appellant’s assistance was almost non-existent. The only thing that was put to the sentencing judge in relation to the “level” of assistance was a submission or concession by the Crown that the appellant had agreed to give evidence for the Crown against Mr Stott and that that was “instrumental in securing [Mr Stott’s] plea”. It does not necessarily follow from that submission or concession that the appellant’s assistance was “at a very high level”, whatever that may mean, particularly when the nature and degree of assistance offered by the appellant is compared with the sort of assistance considered by the authorities referred to earlier. It is clear, for example, that the assistance was not provided at an early stage. The appellant did not provide a statement to the police, or agree to participate in an interview for the purpose of outlining what her evidence would be. The agreement to provide assistance appears also to have been given at a stage and in circumstances where it was unlikely that the appellant would ever have to in fact give evidence against Mr Stott. There was also no suggestion that, in agreeing to assist, the appellant was putting her life in danger, or would have to serve any sentence of imprisonment in protection or in conditions that were harsher or more onerous than would otherwise be the case.
Nor, it might be added, was the sentencing judge obliged to accept the Crown’s submission concerning the appropriate discount for the assistance. Indeed, for the reasons given by the High Court in Barbaro, it is generally inappropriate for the Crown to quantify or express an opinion about the appropriate discount range. The Crown’s submissions, rather, should have been directed to the relevant principles.
There could be little doubt that the discount of 10% fixed by the sentencing judge in respect of the appellant’s cooperation was low, and was at the very bottom of the “customary” range of discounts. The same can be said concerning the “combined” discount of 20%. There is, however, nothing to suggest that the sentencing judge was not aware of the customary range, nor is there anything to suggest that the sentencing judge did not consider that the assistance provided by the appellant, in all the circumstances, did not warrant any greater discount.
While the discount of 10% for assistance and the combined discount of 20% were relatively low, and the sentencing judge’s reasons for imposing the discount are very sparse indeed, I am nevertheless not persuaded that the discount that was given was unreasonable or unjust, or manifests some error of principle on the part of the sentencing judge. I doubt that it would be correct to characterise the appellant’s assistance as assistance that was at a “very high level”, even accepting that the decision by the appellant to give evidence against Mr Stott was instrumental in securing a plea of guilty from Mr Stott. There is nothing to suggest that the discount of 10% given for the plea of guilty was unreasonable or unjust.
I am also not persuaded that the sentence imposed by the sentencing judge in respect of the Series 1 offence was manifestly excessive by reason of the discount, or for any other reason. For the reasons expanded on later, even if there was some error on the part of the sentencing judge in fixing the discount for assistance in respect of the Series 1 offence, I am not persuaded that a different sentence should be imposed.

In NSW, the strength of the prosecution case is not taken into account when determining the sentencing discount, and is only relevant to contrition and remorse: R v Sutton [2004] NSWCCA 225 at [12]. In Thomson, the Court decided that, while the strength of the prosecution case had no bearing on the utilitarian value of the plea of guilty and the associated discount, where a plea of guilty amounted to a “recognition of the inevitable” because it was entered in the face of an overwhelming prosecution case, then this consideration strongly informed whether contrition was genuine: at [137]–[139]. In this jurisdiction, demonstrated remorse is a relevant and discrete sentencing consideration to be taken into account under s 33(1)(w) of the Sentencing Act. Presumably, the strength of the prosecution case may inform the issue of remorse. But in contradistinction to the position in New South Wales, in this jurisdiction the sentencing court is precluded, pursuant to s 35(4) of the Sentencing Act, from allowing a “significant reduction” for a plea of guilty if the prosecution case is “overwhelmingly strong”. The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4). In Coggan v R [2013] ACTCA 49 at [20], the Court explained that even an overwhelming prosecution case required an enormous amount of work and it was not unknown for an apparently overwhelming prosecution case to fail. In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said: Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.

The effect of the appellant’s submissions in support of this ground of appeal was that, because the plea of guilty in respect of the Series 3 offences was entered in the Magistrates Court, the sentencing judge was bound to give a discount of 25%, as opposed to 20%. While the appellant accepted that there was no tariff in respect of the discount for a plea of guilty, the effect of her submission was that there was such a tariff. It should also be reiterated that the sentencing judge did, in fact, give a discount of 25% on the sentences imposed in respect of the second and third of the three Series 3 offences. The appellant’s complaint can be taken, therefore, to relate only to the sentence for the first of those three offences, where a discount of approximately 20% was imposed. The appellant also submitted that there was a “clear error” because the sentencing judge allowed the same discount of 20% for the Series 2 offence, in respect of which a plea was entered in the Supreme Court after a not guilty plea had been entered in the Magistrates Court. That submission, however, ignored the fact that the sentencing judge treated the plea in respect of the Series 2 offence as if it had been entered in the Magistrates Court. That was no doubt because it was the product of negotiations that led the Crown to present an indictment with a single “rolled-up” count.
It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding.
Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations.
Although the sentencing judge’s reasons for fixing a discount of 20% for the Series 3 offences were sparse, it is readily apparent that he accepted that there was “utility” in the pleas and that they were made in a “timely manner”. Equally, however, his Honour had regard to the fact that the Crown case was “very strong”. There is nothing to suggest that the sentencing judge had regard to any irrelevant considerations, or failed to have regard to any relevant considerations, or acted on any incorrect principle. The appellant did not submit otherwise. It could scarcely be submitted that the discount given was “unreasonable or plainly unjust” (see House at 505) given that it was implicitly accepted by the appellant that a discount of just 5% more would have been reasonable.
In all the circumstances, I am not persuaded that the appellant has demonstrated error on the part of the sentencing judge in fixing a discount for the guilty plea in respect of the first of the Series 3 offences of 20%, rather than 25%. In all the circumstances, the discount that was fixed was within the range of discounts open to the sentencing judge to fix in respect of the appellant’s guilty plea.
It should also be noted, as it was in respect of the alleged error in respect of the Series 1 offence, that it was quite inappropriate for the Crown to have submitted that a specific discount should have been fixed by the sentencing judge. In any event, it is clear that the sentencing judge was not bound by that submission, a point that would (or at least should) undoubtedly have been recognised by the appellant, or at least her counsel. There was accordingly no unfairness to the appellant arising from the fact that the sentencing judge plainly did not accept the Crown’s submission in relation to the discount.

For the reasons that have already been given, I am not persuaded that the appellant has demonstrated any specific error on the part of the sentencing judge.
If, however, the sentencing judge did make a specific error or errors in fixing the discounts, it does not, in any event, follow that the Court must intervene and resentence the appellant.
The appellant proceeded on the basis that if the Court found error in the fixing of the discounts, it would necessarily resentence her. Indeed, the appellant appeared to effectively proceed on the basis that the Court would simply adjust the sentences by applying a combined discount of 40% in respect of the Series 1 offence and a discount of 25% for the plea of guilty in respect of the Series 3 offences. The appellant did not advance any other meaningful submissions about how the Court would go about exercising the sentencing discretion afresh.
Section 37O(7) of the Supreme Court Act 1933 (ACT) provides that in an appeal against sentence, the Court has the power to increase or decrease the sentence, or to substitute a different sentence. It does not, however, provide that the Court is bound to exercise that power if the sentencing judge made a specific error.
The position at general law is that, in cases that do not involve manifest excess, if an appellate court identifies a specific error, the sentence imposed below must be set aside and the appellant court is then required to exercise the sentencing discretion afresh unless “in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed”: AB v The Queen [1999] HCA 46; 198 CLR 111 at [130]; see also Kentwell v The Queen [2012] HCA 37; 252 CLR 601 at [35]; Gillard v The Queen [2016] ACTCA 50 at [43].
Had the sentencing judge made a specific error in fixing the discounts, I would not in any event have proceeded to resentence the appellant. That is because I have concluded that, even if such a specific error or errors had been made, no different sentence should be passed. I should also make it abundantly clear that, had I been persuaded that the sentencing judge had made an error in fixing the discounts, and had I been persuaded that a different sentence should be passed, I would not have simply applied the discounts put forward by the appellant. That would not only have been contrary to principle, but would have been contrary to the “strong resistance that exists against appellate ‘tinkering’ with sentences”. Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] (per Kirby J).
In my view, having regard to all the objective and subjective circumstances referred to by the sentencing judge, the sentences imposed by the sentencing judge were appropriate. Indeed, in my view the sentences that were imposed were, if anything, quite lenient, particularly having regard to the order made by the sentencing judge to suspend the sentence of imprisonment from 21 March 2018.
The appellant made no, or no meaningful, submissions in support of the proposition that some lesser sentence should be imposed. The extent of the submissions advanced by the appellant was that there were “powerful subjective circumstances”, which were identified as being that the appellant had a drug dependency which had led her into a “life of crime”, but that she had seen the “path of redemption” and intended to “put the life of crime behind her”.
It is clear from the sentencing judge’s remarks on sentence that his Honour was impressed by aspects of the appellant’s evidence concerning her acknowledgment of her wrongdoing and her desire to “make amends”. His Honour no doubt took that into account in arriving at the sentences he imposed. In my opinion, the subjective features identified by the appellant, and apparently accepted by the sentencing judge, do not compel a conclusion that some different or lesser sentence should be passed.