(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
16 It follows that his Honour used the terminology appropriate for offences committed after 1 February 2003, in respect of an offence committed prior to that date and should have first fixed the total sentence followed by a non-parole period. It is apparent that his Honour clearly intended to impose a head sentence of 3 years, but having found special circumstances, intended to fix a non-parole period of 2 years instead of the 2 years and 3 months which would otherwise have been required by s 44(2).
17 However, I can see no difference between a head sentence of 3 years with a non-parole period of 2 years and a sentence consisting of a non-parole period of 2 years with a further term of one year however expressed; both amount to the same period of time in custody and the same period of time on parole.
18 In R v Hansen [2002] NSWCCA 321, a similar problem arose where the learned Sentencing Judge had erred in fixing the non-parole period first, followed by the "parole period" contrary to the Act as it stood at the date of sentencing, following the replacement 3 days earlier of the Sentencing Act 1989 by the current Act. This Court held at [21] it had power to re-adjust the sentence pursuant to s 43 of the Act and/or pursuant to s 6(3) of the Criminal Appeal Act 1912 to rectify any errors in the manner in which the sentences were expressed, but also held at [25] that by doing so it exercised a re-sentencing of the applicant, so that the Court could have regard to matters occurring since the original sentence was imposed.
19 Similarly in this case, the following of the wrong procedure in pronouncing the sentence constituted an error which enables this Court to re-sentence the applicant, and I deal with this aspect later.
20 The second ground of appeal was that the learned Sentencing Judge erred in failing to discount the sentence imposed on the applicant by reason of the utilitarian value of the plea of guilty.
21 In the guideline judgment of R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160] sentencing judges were encouraged to specify the discount allowed for the utilitarian value of any plea of guilty as opposed to its relevance as evidence of remorse and contrition, and the saving of the requirement for vulnerable witnesses to give evidence, but it was further said at [113] that in appropriate cases it may be appropriate to specify a single discount to cover all aspects of the plea of guilty, and the failure to specify the amount of discount for the plea of guilty did not necessarily constitute error: at [72]. 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: at [162]. The utilitarian value of a plea is to be assessed by reference to the stage at which the plea is entered and the complexity and length of the trial in the absence of such a plea: at [154].
22 In R v Lloyd at [2003] NSWCCA 49, a 2 judge bench held that notwithstanding a reference by the Sentencing Judge to the fact that the pleas of guilty were entered in the Local Court, as there was no express reference to the utilitarian value of the plea, and having regard to the length of the sentence imposed, they were satisfied that the Judge had failed to give effect to the utilitarian value of the pleas and allow an appropriate discount.
23 On the other hand, in R v Galati [2003] NSWCCA 148 (another decision of a 2 judge bench) the Sentencing Judge had begun his Remarks on Sentence with a reference to the fact that the pleas were entered before the Local Court and so should be regarded as entered at the earliest opportunity, but made no further reference to their utilitarian value or any specific discount. It was submitted that these factors together with the fact that the sentences were expressed in round figures, suggested that no discount had been allowed for the utilitarian value of the pleas of guilty and that R v Lloyd should be followed with a similar result.
24 However at [23] James J (with whom Smart AJ agreed) rejected that submission, stating that whilst it would have been desirable for the Sentencing Judge to have quantified the discount he was allowing for the utilitarian value of the pleas, his Honour was clearly mindful of the pleas of guilty and that they had been entered at the earliest available opportunity, and concluded that, having regard to the objective seriousness of the offences and a number of negative subjective circumstances, the sentences imposed by their leniency did disclose that a significant discount had been allowed for the pleas of guilty.
25 In my opinion, similar considerations apply in the present case. His Honour in his Remarks on Sentence not only noted the plea of guilty, observed that it demonstrated remorse and contrition, and that the applicant was entitled to a discount on penalty on account of that, but went on to observe that he pleaded guilty at the earliest opportunity. Again later in his Remarks, he again referred to the fact that he had pleaded guilty at the earliest opportunity.
26 This was a very serious offence. Not only did the victim require 10 sutures to her throat leaving her with some disfigurement, but having regard to the location and size of the laceration, she was lucky that her injury was not more serious or possibly even fatal.
27 Having regard to his Honour's vast experience in sentencing matters, the two references to the plea being entered at the earliest opportunity, and the comparatively lenient sentence imposed for an offence of this seriousness in the light of the applicant's prior record, I cannot conceive that his Honour failed to take into account the utilitarian value of the plea of guilty or failed to allow a discount in respect of it within the range indicated in R v Thomson.
28 Moreover, I consider that the sentence imposed by his Honour, effectively a head sentence of 3 years with a non-parole period of 2 years, was such that for an offence of this seriousness, no lesser sentence would have been appropriate. I also note that, having regard to the circumstances and prior record of the applicant, it is well within the middle range of the statistics for this offence maintained by the Judicial Commission of New South Wales.
29 However, because of his Honour's error in relation to s 44, it is necessary to re-sentence the applicant. This renders admissible the affidavits that have been filed which set out the progress made by the applicant whilst in prison, and the fact that he has undertaken with the victim's family the "Closure Conference", and that the victim has forgiven him.
30 The progress made by the applicant whilst in prison is only such as his Honour anticipated at the time of sentencing, as is the forgiveness by the victim who had written a letter to the Court prior to sentencing supportive of the applicant, and in any event forgiveness by the victim is only of limited relevance: R v Rowe (1996) A Crim R 467, R v Glen (CCA - 19 December 1994) The only matter that is really fresh is the Closure Conference. This is significant and I have taken it into account, but in all the circumstances, having regard to the seriousness of the offence, I am not satisfied that this is a case where a lesser sentence should now be imposed.
31 It is however necessary to re-sentence the applicant in accordance with the Act as it stood prior to the 2002 amendments. Accordingly, I would grant leave to appeal, allow the appeal, quash the sentence imposed by the District Court, and in lieu thereof sentence the applicant to imprisonment for 3 years to date from 5 November 2002 and fix a non-parole period of 2 years expiring on 4 November 2004, and I would confirm the order for his release on parole at the expiration of the non-parole period subject to the conditions specified by the District Court.
32 STUDDERT J: I agree.
33 JAMES J: I agree.