Ground 1: Discount for plea of guilty.
25 The remarks on sentence by his Honour included the following statement: (ROS 3)
"The prisoner is, of course, entitled to have the benefit of his pleas of guilty taken into account. They were of utilitarian value to the State, although, as it appears, the case against him was strong, he having been observed in the course of both matters for which he is before me."
26 That statement is said to reveal error for a number of reasons. First, it suggested, as the Crown acknowledged, that his Honour discounted the utilitarian benefit arising from the plea of guilty by reason of the strength of the Crown case. There should be no such discounting. Howie J, in R v Sutton [2004] NSWCCA 225 expressed the principle in these terms: (at para 12)
"This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence."
27 His Honour added: (at para 14)
"Judges of the District Court must surely be aware by now that to suggest, as his Honour clearly did, that the utilitarian value of the plea has been reduced by the strength of the Crown case, is an error which might warrant the intervention of this Court."
28 Secondly, his Honour, according to the applicant, neither identified the discount he applied, nor the factors which he took into account (apart from the irrelevant factor, the strength of the Crown case). He was obliged to do one or other. Again the principle was expressed by Howie J in the same case in the following passage: (at para 12)
"... if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]:
'In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed.'"
29 The Crown responded by pointing out that his Honour was not obliged to quantify the discount. Although he did not refer to the matters he took into account in his discussion of the plea of guilty (apart from the irrelevant matter), he began his remarks on sentence with these words:
"The prisoner pleaded guilty before a Magistrate on 10 October last year ..."
30 His Honour, according to the Crown, was plainly conscious of the timing of the plea and its importance in determining of the size of the discount.
31 The applicant, by way of rejoinder, submitted that his Honour made no reference to the complexity of the matter, that being a further aspect identified in R v Thomson & Houlton (2000) 49 NSWLR 383 at 418. Whilst neither Count 1 nor Count 2 could be considered complex, and would not have taken a great deal of Court time, the combination of those charges and the five separate matters included on the Form 1 did have significant utilitarian value.
32 There is substance in each of the criticisms made by the applicant. I believe there was error. The reference to the strength of the Crown case, in the context of a discussion of the worth of a plea of guilty, inevitably gave rise to an impression that his Honour discounted the value of that plea by reason of that fact.
33 The Crown, anticipating that finding, submitted, however, that no lesser sentence was warranted in law (s6(3) Criminal Appeal Act 1912) (R v Astill (No 2) (1992) 64 A Crim R 289 at 303 and 304; R v Boulghourgian (2001) 125 A Crim R 540 at para 34). The Crown pointed to the following:
· The offences were committed whilst the applicant was on conditional liberty on bail (in relation to the offences on the Form 1);
· Not all the property was recovered;
· The applicant has previous convictions of the same type, for which he received custodial sentences;
· The applicant was not young;
· There were multiple offences, including offences on a Form 1.
34 Should the Court intervene? Where an error is shown, and where it can be inferred that the sentencing Judge would have given a lesser sentence, but for the error, ordinarily one would expect this Court to intervene unless to do so would reduce the sentence to a level which was less than adequate.
35 Here it was suggested by the applicant that, assuming his Honour had applied a discount of approximately 10 percent for the plea of guilty, and that it would have been reasonable for him to have allowed 25 percent, then the head sentence would have been reduced by approximately 6 months (to 4 years 6 months rather than 5 years). The non parole period would have been adjusted accordingly (and probably rounded off from 3 years to 2 years 6 months, reflecting the finding of special circumstances).
36 Two issues arise. First, is it reasonable to assume a discount of 25 percent for the plea of guilty? Secondly, is the sentence, adjusted in the way suggested, or approximately in that way, inadequate having regard to the personal circumstances of Mr Oliver and the criminality involved? The Crown submitted that the sentence, so adjusted, would be inadequate, pointing mainly to the length of the non-parole period which would then be too low. The applicant submitted that such a sentence would be well within the range. The length of the non-parole period was the consequence of the finding of special circumstances. No challenge had been made to that finding. The applicant further submitted that it was reasonable to adopt a 25 percent discount. The offences had been committed on 3 and 6 July 2002. The plea was entered in the Local Court on 10 October 2002. It was therefore a very early plea. Mr Oliver's companion in Count 1, also pleaded guilty. He was given a discount of 25 percent for that plea by Bell DCJ on 28 May 2004 (R v Christopher Shaw)
37 I have come to the view that the Court should intervene. I accept that, but for the error, his Honour would have imposed a lesser sentence along the lines suggested by the applicant and that such a sentence would have been within the range of sound sentencing discretion and therefore unlikely to have attracted a successful Crown appeal. In these circumstances I believe it is just for the Court to intervene and resentence the applicant in terms which correct the demonstrated error.
38 In re-sentencing, I believe a discount of 25 percent for the plea of guilty is reasonable. I would, for the same reasons as provided by the sentencing Judge, find special circumstances.