R v Capar [2005] NSWCCA 402 | Case summary

The applicant's submissions 22 When sentencing the applicant and his brothers the sentencing judge said: "Whilst a plea of guilty is to be taken into account under section 21A, as has long been the law, where it is entered in the face of a strong Crown case, prisoners can expect a very limited reduction of sentence. In this case the reduction of sentence reflects the plea of guilty, the time at which it was entered and the benefits which that plea affords to the community in the sense of saving a substantial amount of time in what would have been an expensive trial of some duration. It may also be seen as an indication of remorse for the part played by each of the prisoners in his activity. I assess the reduction for mitigation at 15 per cent for each of the prisoners." 23 The applicant submits that by fixing a discount for the plea of guilty but discounting it because "it was entered in the face of a strong to overwhelming Crown case" her Honour fell into error (see R v Thomson & Houlton (2000) 115 A Crim R 104 at [137]-[138]; R v Carter [2001] NSWCCA 245; R v Parkinson (2001) 125 A Crim R 1; R v Lowe [2001] NSWCCA 271; R v Gorgievski [2002] NSWCCA 45; R v Vukic [2003] NSWCCA 13; R v Petrie (2003) 141 A Crim R 396; R v Sutton [2004] NSWCCA 225; R v OPA [2004] NSWCCA 464; R v Rogerson [2005] NSWCCA 12). 24 It is further submitted that it is apparent from her Honour's remarks on sentence that the fifteen percent discount was intended to include not only the utilitarian discount but also a discount for remorse because the utilitarian discount does not include the mitigating factor of contrition (see R v Thomson & Houlton). It follows, so it is submitted, that the actual discount given for the utilitarian value of the plea of guilty in the present case must have been less than fifteen percent (on the assumption that there was some unquantified discount for the elements of remorse and contrition). 25 Attention is also directed to the fact that the applicant's brother Yasin had earlier been sentenced and a discount of fifteen percent to reflect his plea of guilty allowed. It is submitted that Yasin's plea was entered after he had been committed for trial and after negotiations with the authorities. Accordingly, it is submitted that there is a basis for concluding that, in this respect at least, the applicant has a legitimate sense of grievance arising from the disparate treatment of his brother and himself.

Decision 26 I am not persuaded that her Honour erred in fixing the fifteen percent discount for the plea of guilty. If her Honour had confined her reasoning with respect to the quantum of the discount to the utilitarian value of the plea of guilty, an error may have occurred. However, her Honour also recognised that the plea carried with it an indication of remorse and in this respect her Honour was entitled to consider the strength of the Crown case (see R v Sutton at [12]). 27 In my opinion, it is significant, as her Honour acknowledged, that the applicant's plea was entered only after the two co-offenders were cross examined at committal and, accordingly, it cannot be said that the plea was entered at the first available opportunity so as to attract a discount at the top of the range. The relevant principles were summarised by Hislop J in R v Atonio [2005] NSWCCA 200 at [40]. Although the agreed facts tendered to her Honour suggested that the plea was entered at the earliest opportunity, I am satisfied that her Honour was correct in concluding that this agreement should be given little weight in light of the true sequence of events (see Malvaso v The Queen (1989) 168 CLR 227 at [232-233]). 28 In setting the discount at fifteen percent her Honour adopted a figure which was within the commonly accepted range. It is important to appreciate that although guidelines were provided in Thomson & Houlton there is no presumption that a plea of guilty, even when offered at the earliest opportunity, will result in a twenty five percent discount. The usual range falls within ten and twenty five percent and it is a matter for the sentencing judge to determine, having regard to all of the circumstances, the appropriate discount in a particular case. 29 Even if error could be demonstrated in the discount which her Honour provided no basis has been indicated which would require the sentence imposed to be reviewed. The offences for which the applicant was sentenced involved a high degree of criminality arising as they did from a sophisticated drug operation controlled and managed by the applicant for personal gain. A very significant sentence was required. In some respects, in particular the fact that the applicant did not receive any additional penalty for the offence involving the firearm, the sentence was to be served concurrently, the sentence imposed on the applicant could be viewed as lenient. 30 In these circumstances s 6(3) of the Criminal Appeal Act 1912 is relevant and this Court should not intervene (see R v Simpson (2001) 53 NSWLR 704 at [79]. 31 In my opinion, although leave should be granted, the appeal should be dismissed. 32 GROVE J: I agree. 33 HISLOP J I also agree. 34 McCLELLAN CJ at CL: The order of the Court will be as I have indicated. **********

R v Capar

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