R v Scott

Court of Criminal Appeal (NSW)|2003-10-07|Before: Tobias JA, Howie J, Shaw J

CITATION : R v Scott [2003] NSWCCA 286 HEARING DATE(S) : 03/10/2003 JUDGMENT DATE : 7 October 2003

JUDGMENT OF : Tobias JA at 1; Howie J at 2; Shaw J at 33 DECISION : Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS : Criminal Law and Procedure - Appropriate discount for the plea and contrition LEGISLATION CITED : Crimes Act 1900 - ss 27, 33, 61 Criminal Appeal Act 1912 - s 6(3) R v Thomson and Houlton (2000) 49 NSWLR 383 CASES CITED : R v Sharma (2002) 54 NSWLR 300 R v Dib [2003] NSWCCA 117 PARTIES : Regina v Peter Leslie Scott FILE NUMBER(S) : CCA 60157/03 COUNSEL : P. Miller - Crown E. Fullerton SC - Applicant SOLICITORS : C.K. Smith - Crown D. Giddy of Giddy & Crittenden - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0432; 02/11/0433 FILE NUMBER(S) : LOWER COURT Keleman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60157/2003

TOBIAS JA HOWIE J SHAW J

TUESDAY 7 OCTOBER 2003 R v Peter Leslie SCOTT Judgment 1 TOBIAS JA: I agree with Howie J. 2 HOWIE J: On 19 July 2002 the applicant was arraigned in the District Court on an indictment containing two counts; the first count alleging an offence of causing grievous bodily harm with intent to murder contrary to s 27 of the Crimes Act, and the second count as an alternative to the first alleging and offence of wounding with intent to do grievous bodily harm contrary to s 33 of the Act. The applicant pleaded not guilty to the first count but guilty to the second count. The Crown accepted that plea in full satisfaction of the indictment. The maximum penalty prescribed for an offence contrary to s 33 is 25 years imprisonment. 3 In addition the applicant had been committed to the District Court for sentence on two charges of assault contrary to s 61 of the Crimes Act. The maximum penalty prescribed for an offence under that section is 2 years imprisonment. 4 On 18 October 2002 Judge Keleman sentenced the applicant for the offence under s 33 to imprisonment for 7 years that sentence to commence on 4 October 2002 with a non-parole period of four years to expire on 3 October 2006. In respect of each of the offences of assault the applicant was sentenced to a fixed term of six months imprisonment, each sentence to commence on 4 October 2002 and expired on 3 April 2003. 5 The applicant now seeks leave to appeal against the sentence imposed for the s 33 offence. There is a single ground of appeal which is as follows:

The sentencing judge erred in his assessment of the appropriate discount for the plea and the contrition. 6 In light of the limited nature of the issue arising for determination by the Court, the facts of the offence and the subjective case presented on behalf of the applicant before Judge Keleman can be stated relatively briefly. The offences for which the applicant was to be sentenced arose from an incident that occurred in the early hours of Saturday 10 March 2001 in Double Bay. The applicant, who was living in an apartment in Bellevue Road, arrived home shortly after midnight. At the time he was moderately to severely intoxicated by alcohol. Having been disturbed by street noise under the balcony of his unit, the applicant looked into the street and saw a group of people walking towards New South Head Road. These persons had left a birthday celebration nearby and were on the way to catch taxis. The applicant exchanged words with members of the group about what he perceived to be excessive noise and then left his apartment in order to confront them. At that time the applicant was aggressive but not armed with any weapon. 7 An altercation occurred between the applicant and three members of the group, one of whom was Angus Harris, including some pushing and shoving. The applicant then returned to his apartment, armed himself with two kitchen knives and ran back onto the street and towards the group. He slashed at one person with one of the knives but did not make contact. He chased another around a parked car while brandishing a knife at him. These two incidents gave rise to the charges of assault that were before Judge Keleman. 8 The applicant then pursued Mr Harris and attacked him with a knife, inflicting multiple stab wounds to his torso and upper body. It is unnecessary to detail the injuries suffered by the hapless Mr Harris but three of them could have been fatal if they had injured any vital organs that were in line with the path of the knife. As a result of the wounds inflicted on him, Mr Harris required abdominal surgery and spent a period in the intensive care ward of the hospital until he was discharged on 15 March 2001. Mr Harris was still suffering, both physically and mentally, from the attack upon him by the applicant at the date when sentence was imposed. 9 The applicant was himself injured as a result of the incident. After his attack upon Harris, the applicant fled back up Bellevue Road chased by members of the group. In attempting to evade these persons the applicant jumped a 10 metre wall and broke both ankles when landing on a concrete drive. He also suffered a compression fracture of the vertebrate and required surgery. The applicant remained in hospital until 6 April 2001. It is expected that as a result of the injuries he suffered there will be early degenerative joint disease in both ankles. 10 In respect of the offence committed against Mr Harris, Judge Keleman stated:

The objective seriousness of the offence of wounding with intent to do grievous bodily harm is very high. The offence was premeditated, determined and alarmingly vicious and callous. In offences of this type considerations of general deterrence and punishment are of particular importance. There are a number of aggravating features in the commission of this offence. I am satisfied beyond reasonable doubt that prior to arming himself with a knife the prisoner intentionally singled out Harris for attack and then having armed himself with initially two large knives he relentlessly pursued the obviously unarmed and clearly terrified Harris for some distance. I am also satisfied beyond reasonable doubt that the offender's subsequent concealment of the knife and false representation to Harris that he was not armed with a knife was part of a ruse by the offender to enable him to get sufficiently close to Harris so that he could stab Harris with the knife and intentionally inflict the type of grave harm that he, in fact, inflicted on Harris knowing that Harris was unarmed and virtually unable to defend himself from such an attack. The offender's disturbing callousness was also reflected in his comments to two of Harris' companions while fleeing the scene that it was all fun and games. 11 While accepting that the applicant's intoxication on the night was the primary cause for him acting in this way and was a mitigating factor, his Honour determined that the applicant's criminality, particularly in relation to the s 33 offence, fell within the upper range of seriousness for offences of its type and, therefore, his Honour felt he had no option but to impose a substantial custodial sentence notwithstanding the applicant's favourable subjective circumstances. 12 There was a powerful subjective case presented on behalf of the applicant. He was aged 29 at the time sentence was imposed, had no previous criminal history and had been in constant paid employment since 1995 at the same city hotel working his way up to a position of responsibility within its finance department. Judge Keleman described the applicant as a first offender, "who is otherwise a law-abiding and relatively balanced and responsible member of the community". His Honour stated:

The subjective material tendered on behalf of the offender indicates that the offender is a genuine, caring, warm and responsible person who is also a loving and caring family member well regarded by those who know him as a friend, family member and employee. That material, which I accept, also indicates that the violent conduct in which the offender engaged in respect of the present offences was out of character. 13 After referring to evidence from a psychiatrist, Dr Westmore, concerning the applicant's mental state at the time of the offence and the psychiatric counselling that he had undertaken since, his Honour stated:

There is no doubt that as a consequence of the present offences the prisoner's life has undergone constructive changes. These include addressing his alcohol consumption and learning and utilising strategies to assist him to deal more effectively with problems that he may face in the future……………..

There is no doubt that the offender is highly motivated to rehabilitate himself and has been doing everything possible to ensure there is never a repeat of the conduct which gives rise to the present charges. This is reflected in the subjective material that has been tendered. The changes he has made to his life are observable even in his workplace…………….

I am satisfied that if the offender maintains his present motivation and receives appropriate support and assistance his prospects of rehabilitation are excellent. 14 In respect of the relevance of the applicant's plea of guilty and his remorse, his Honour stated:

The offender's pleas of guilty have also been taken into account. The pleas of guilty to the two charges of assault were entered at the first available opportunity in the Local Court. The plea of guilty to the charge of wound with intent to do grievous bodily harm was entered, as the Crown concedes, at the first reasonable opportunity. That plea of guilty was entered when the Crown first indicated on arraignment in the District Court that it would accept a plea to that charge in full satisfaction of the indictment. The offender had previously entered a plea of guilty to that charge in the Local Court on 27 September 2001, however, the Crown at that time would not accept the plea.

I am satisfied that the offender's pleas of guilty represent genuine remorse and contrition and that his expressions of remorse and contrition are also genuine. Having regard to the principles enunciated in the guideline judgment of R v Thomson [ and Houlton ] (2000) 49 NSWLR 383 where a discount range of 10 per cent to 25 per cent is indicated solely for the utilitarian value of the plea, I am satisfied that the appropriate discount to take into account all elements of the pleas of guilty warrants a discount of 25 per cent on the sentences that would otherwise have been appropriate. 15 The applicant submits that Judge Keleman erred in giving a discount of only twenty-five percent in respect of both the plea of guilty and the expressions of remorse that his Honour had found to be genuine. The argument is that the utilitarian value of the plea of guilty justified a discount at the very top of the range specified by this Court in Thomson and Houlton, disregarding any expressions of remorse and contrition by the applicant. 16 The written submissions filed on behalf of the applicant contained the following two paragraphs (my underlining):

14 His Honour referred to the applicant's plea(s) of guilty as representing genuine remorse and contrition and accepted that this was amplified by the applicant's genuine expression of these emotions (reasons for sentence pgs 14 and 18). His Honour also said that in fixing the discount at 25% he was "taking into account all elements of the pleas of guilty" (Ibid.). However, by discounting the term of imprisonment for the offence of malicious wounding by 25%, and fixing that term at 7 years, it is submitted he failed to adequately reflect the overwhelming evidence of contrition, the applicant's acceptance of responsibility for his conduct, and the currency of these subjective responses over many months between the commission of the offences and sentence.

In the circumstances of this case, where the utilitarian value of the plea(s) is high, and a strong subjective case on the evidence is established to the sentencing judge's satisfaction , a greater discount than 25% was warranted and his Honour erred in not so finding. 17 In my opinion those parts of the written submissions that I have underlined reveal the erroneous nature of the ground of appeal and the submissions made in support of it. 18 In Thomson and Houlton at [3] Spigelman CJ recognised that a plea of guilty should attract a lower sentence for three reasons: it manifested remorse and contrition; it had a utilitarian value to the efficiency of the criminal justice administration; and it saved vulnerable witnesses from having to give evidence. However, it was only the second of those reasons that became the subject of a guideline. It was considered, at [154], that the value of the plea on that basis could be objectively assessed by reference, firstly, to the stage in the criminal justice process when the plea was forthcoming and, secondly, the length and complexity of the trial that would have occurred had there not been a plea. The evaluation of the discount on a utilitarian basis, therefore, has no regard to the strength of the Crown case, does not reflect remorse or contrition and is not concerned with any other factor relevant to sentence such as the rehabilitation of the offender. 19 The utilitarian value of the plea was seen as a suitable subject for a guideline judgment because its contribution to the synthesis which attends the exercise of a sentencing discretion could be isolated and dealt with separately without upsetting the interplay of other matters taken into account by a sentencing judge: Thomson and Houlton at [122]. 20 However, the other two reasons why a plea of guilty might result in a lower sentence, that is, as a manifestation of remorse and in sparing witnesses from giving evidence, depend upon the circumstances of the particular offence or offender and overlap with other aspects of the sentencing task in a particular case: Thomson and Houlton at [121]. In particular, the element of remorse has significant relevance in determining what aspects of punishment are to be reflected in the sentence: for example whether personal deterrence is a relevant factor and how much weight can be given to the prospects of rehabilitation, at [116]. It is when considering the plea as a manifestation of remorse that the strength of the Crown case may be a relevant factor, at [117]. 21 In respect of the relationship between the plea and remorse, the Chief Justice stated at [118]:

The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse. 22 The guideline laid down in Thomson and Houlton did not require that a sentencing judge always specify the discount for the utilitarian benefit of the plea as a separate and distinct entity. The Chief Justice stated at [113]:

As Gleeson CJ and Hunt J said in Gallagher it will not always be possible or appropriate to specify a discount for a plea. Whether or not it is possible or appropriate is a matter for the exercise of the discretion of the sentencing judge. This Court should go no further than encouraging judges to do so. For the reasons discussed below, this encouragement particularly relates to the utilitarian benefit of a plea, where it is appropriate to separately deal with that element. This should not inhibit a trial judge, where she or he thinks it appropriate to do so, to take another course, including quantifying a discount for all aspects of a plea. (my underlining) 23 It should be noted that sentencing judges were being encouraged to specify the discount for the utilitarian value of the plea "where it was appropriate to separately deal with that matter." There are situations where it may not be appropriate to specify a discrete discount for the plea. The guideline in Thomson and Houlton itself recognised at [160(ii)] (that, in cases involving assistance to authorities, a "single combined quantification will often be appropriate", and see R v Sharma (2002) 54 NSWLR 300 at [72]. In such a case an early plea will simply be one component of the assistance being given by the offender and generally follows a full and frank disclosure of the offender's guilt to the authorities. 24 Another case where it may not always be appropriate to give a separate discount for the plea is one such as the present where the plea is simply one event in a course of conduct by the offender following the commission of the offence which not only indicates remorse but reveals an attempt by the offender to redress the harm occasioned by the offence and to ensure that it does not occur again. Where, as in the present, there is a subjective case presented on behalf of the offender to show that the offence was out of character, that the commission of the offence had a salutary effect upon the offender and that his rehabilitation was well under way by the date of sentencing, I have some difficulty in appreciating how the plea can be viewed as anything but part of that process of rehabilitation and reform. Thomson and Houlton recognised that the then existing practice of giving a discount of up to thirty-five per cent for the plea by encompassing all relevant matters remained appropriate. This is the type of case where such a course might have been adopted. 25 The foundation for this ground of appeal is that his Honour said that he was taking into account "all elements of the pleas of guilty" in determining that the appropriate discount was twenty-five per cent. The phrase is reminiscent of that used by Spigelman CJ in Thomson and Houlton at [113] and quoted above. The Chief Justice referred to a judge being entitled to take another course than the one being encouraged in the guideline, "including a discount for all aspects of the plea". 26 The argument put on behalf of the applicant is as follows. The twenty-five per cent discount was justified by the utilitarian benefit of the pleas, putting aside any evidence of contrition. As his Honour had found the applicant to be contrite and remorseful, that he had accepted responsibility for his actions and that he had had continued to display "these emotions" by his conduct since the offence, the discount was inadequate. His Honour had erred, so the argument runs, in not taking into account in discounting the sentence for the plea the applicant's contrition and remorse. This argument seems to assume that 'these emotions" are only relevant to the discount that should be given for the pleas and, like the utilitarian effect of the pleas, have no other role to play in determining the sentences to be imposed. It also assumes that, other than in calculating the discount for the pleas, his Honour had no other regard to the material to which he refers at length in his remarks. 27 I am completely unpersuaded that there was any error in the approach adopted by Judge Keleman. In my opinion, in referring to "the appropriate discount to take into account all elements of the pleas of guilty", his Honour was indicating no more than that, having regard only to the pleas of guilty, a twenty-five per cent discount was appropriate to reflect all the matters that were manifested by the pleas alone: these were the utilitarian effect, the sparing of witnesses, and such remorse as was reflected in the bare fact of the pleas. At the start of the paragraph in which Judge Keleman quantified the discount for the pleas, he drew a distinction between the genuine remorse and contrition represented by the pleas, on the one hand, and the applicant's genuine expressions of remorse and contrition (that is, those expressions not reflected in the pleas) on the other. 28 There is nothing in Thomson and Houlton that required his Honour to give a discount of twenty-five per cent simply for the utilitarian aspect of the pleas standing alone, particularly where there would have been nothing complex about the issues in the trial had it proceeded. The only matter that appears to have been in dispute on the first count in the indictment was the intention to murder. It has to be emphasised once again that the range of discounts referred to in the guideline judgment is a guideline. It creates no presumption of, or entitlement to, a particular discount in a given situation. Further, in R v Dib [2003] NSWCCA 117 it was held that, where a plea to a lesser charge is accepted a long time after the offence, a discount of less than twenty-five per cent can be appropriate notwithstanding that the plea was made at the earliest opportunity. Here the plea was first offered on 17 September 2001, nine months after the offence. 29 In any event there is simply no basis to assume that His Honour intended that the twenty-five per cent discount was to include all the actions of the applicant that reflected his contrition and remorse regardless of when it occurred or what it entailed. The greater part of the applicant's conduct that manifested his genuine contrition and remorse took place before the plea to the lesser offence was offered in the Local Court. 30 Any suggestion that his Honour may have failed to take into account all aspect's of the applicant's remorse and contrition, which was evidenced by his conduct between the commission of the offence and the date of sentence, is dispelled by a consideration of the sentence imposed. Having regard to the very grave seriousness of the offence, which his Honour rightly described as being in the upper range for an offence of this nature, a sentence of 7 years as against a maximum penalty of 25 years imprisonment is eloquent of the fact that his Honour must have given full weight to the subjective material before him. A discount of only twenty-five per cent of the otherwise appropriate sentence would mean that his Honour must have chosen a starting sentence below 10 years. That is so obviously not an appropriate starting point that his Honour could not have chosen it. The non-parole period of 4 years is the very least that could have been imposed to reflect the objective seriousness of the offence and the aspects of punishment that the sentence imposed had to manifest. 31 In my view the sentence imposed was such that, even had there been error shown, the Court would not have intervened as no lesser sentence is warranted. By reason of s 6(3) of the Criminal Appeal Act, the appeal must fail. 32 I propose that the application for leave be granted but the appeal be dismissed. 33 SHAW J: I agree with Howie J. **********

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