R v Bell

Court of Criminal Appeal (NSW)|2003-05-02|Before: Levine J, Simpson J

the application for leave to appeal 14 On behalf of the applicant, it was submitted that the sentence is manifestly excessive and that the remarks on sentence disclose one error of law in the approach to sentencing. This concerns the sentencing judge's assessment of the utilitarian value of the plea of guilty. A second ground of appeal concerns the disparity between the sentence imposed upon the applicant and the sentence subsequently imposed upon the co-offender, Lucinda McMillan.

(i) the plea of guilty 15 Dealing firstly with the submissions made in relation to the plea of guilty, the sentencing judge said this: "The prisoner pleaded guilty at the first opportunity but in the circumstances of an overwhelming Crown case. She is entitled to a small discount because of this plea and it did have a utilitarian value of saving the victim from giving evidence and the State the cost of a trial." 16 On behalf of the applicant it was argued that, in approaching the matter in this way, the sentencing judge took into account the strength of the Crown case in evaluating the utilitarian value of the applicant's plea of guilty. Although the strength of the Crown case is a relevant consideration in determining questions of contrition, it is not relevant to the evaluation of the utilitarian value of a plea: R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383. 17 In response to this argument, the Crown has submitted that it is incorrect to read the observation in the remarks on sentence as indicating that the judge took into account, as part of the utilitarian value of the plea, the strength of the Crown case. Emphasis was placed on the word "and". The passage is not entirely clear and it is, I my opinion at least, capable of the interpretation that the judge did consider the strength of the Crown case as bearing upon the utilitarian value of the plea and accordingly, the discount to which she was entitled. That interpretation is strengthened by what immediately followed when his Honour stated that the applicant was entitled only to a small discount, he already giving observed that the plea was entered at the first opportunity. 18 There are other factors relevant to the assessment of the utilitarian value of a plea. Timing is relevant because an early plea produces a greater saving in costs of investigation and preparation. The projected length and complexity of a trial is another relevant factor. Matters such as the number and identity of witnesses who would, on a trail, have to be called are also material. 19 When those matters are considered it can be seen that a trial on this charge would not have been likely to have been lengthy or complex, in part because of the recording of the whole incident on close-circuit television. However, it would have been necessary for Ms Berg to have been called to give evidence and this no doubt would have been traumatic for her as well as inconvenient. I think, therefore, there is some substance in the complaint that the trial judge was in error in the approach that he took in relation to the plea of guilty. That may have occurred because he took into account the strength of the Crown case in relation to the plea. 20 The difficulty is compounded because his Honour did not quantify the extent of the discount he allowed the applicant. In those circumstances it is necessary to give full weight to his description of the discount as "small". In my opinion, the applicant was entitled to something more than a discount characterised as small.

(ii) disparity 21 The next matter that was raised on behalf of the applicant was disparity with the sentence imposed on the co-offender by Morgan DCJ on 1 November 2002. Her Honour imposed a term of imprisonment of four years with a non-parole period of two and half years. In doing so, she differentiated between the two cases. She referred to the applicant's age which is four years greater than that of the Ms McMillan, that she was on two bonds at the time of the offence, that she had a more extensive involvement in the commission of the offence, had demanded money and made a threat about the use of a knife. Morgan DCJ accordingly held that she was not bound by principles of parity to impose the same sentence of Ms McMillan. 22 No complaint can be made about the individual factors that I have just mentioned. However, Morgan DCJ also held that the applicant's criminal record was more extensive than that of Ms McMillan. In fact, and I think this was almost conceded by the Crown, the records of the two women were not dissimilar, if anything it may be that Ms McMillan had a greater history of violence than the applicant.

(iii) manifestly excessive sentence 23 The last point raised on behalf of the applicant is that the sentence was manifestly excessive and in this respect we were provided with statistics from the Judicial Commission and also with an analysis of other cases of a broadly similar kind. The statistics indicate that the head sentence imposed upon the applicant is within the top nine per cent of all sentences imposed for armed robbery in company since the guideline judgment in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 was delivered, and that the non-parole period is within the top ten per cent of all such sentences. 24 More compelling is the analysis contained in a table annexed to the applicant's written submissions showing salient features of a large number of cases and this indicates that only in a small minority of cases was an equivalent or heavier sentence imposed in relation to those offences. 25 It is difficult to draw too much from the relatively brief information contained in this document but it does tend to suggest that where heavier or equivalent sentences have been imposed there have been either a number of offences or the use of a weapon or some other aggravating feature which is not present in this case. 26 Counsel for the applicant referred to the profile of offender and offences set out in Henry and sought to bring the applicant's case within that but in this respect I accept the Crown's response that there are significant features of differentiation, for example, the applicant is not young, she does not have a limited criminal record; and there is no doubt that there was, although no weapon involved, a significant level of violence in the commission of this offence. 27 Having regard to the conclusion I have reached about the way the sentencing judge treated the plea of guilty and having regard to the analysis of cases that I have mentioned, it seems to me that the applicant has made good her contention that the sentence imposed was not just at the top of the range available but outside that range. That has to be seen in the light of the circumstances of the offence which was indeed a particularly serious instance of robbery in company being committed in the middle of the night, accompanied by a considerable level of violence and over an extended period of time and involving the applicant in two separate instances of assault upon the victim. 28 Even having regard to those circumstances it seems to me that error has been established. Leave to appeal should be granted, and the sentence imposed by Sorby DCJ be set aside. We have had regard to material provided and accepted by the Court against the possibility that this Court would re-sentence and also to the psychiatric evidence. 29 Having regard to those matters, the starting point in my opinion should be a head sentence of six years. I would allow a discount for the plea of guilty of twenty per cent resulting in a head sentence of four years and ten months. Sorby DCJ found special circumstances justifying departure from the statutory ratio and I would not depart from that finding. I would propose a non parole period of three years. 30 Accordingly, the orders I propose are:

(iv) the applicant be sentenced to imprisonment for a term of four years and ten months with a non-parole period of three years. 31 LEVINE J: I agree with Justice Simpson and the orders will be as proposed by her. The commencing date will be the same. The exhibits may be returned.

Last Modified: 05/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Bell [2003] NSWCCA 132 HEARING DATE(S) : 2 May 2003 JUDGMENT DATE : 2 May 2003

CATCHWORDS : application for leave to appeal - severity of sentence - plea of guilty - parity of sentence imposed on co-offender LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Thomson and Houton [2000] NSWCCA 309; (2000) 49 NSWLR 383 PARTIES : Crown - Respondent Cecilia Ann Bell - Applicant FILE NUMBER(S) : CCA 60040/03 COUNSEL : DM Howard - Crown L Flannery - Applicant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Applicant

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