43 In R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160] the Court laid down a number of guidelines concerning the discount appropriate to be allowed for pleas of guilty including the following:-
(a) Sentencing Judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value but particular encouragement is given to the quantification of the last mentioned matter.
(b) Where the other matters are regarded as appropriate to be quantified in a particular case, a single combined quantification will often be appropriate.
(c) The utilitarian value of a plea should usually be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range the particular case should fall is the timing of the plea.
(d) The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial.
(e) A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial unless there are particular benefits arising from the prospective length and complexity of the trial at [155].
44 In the case of the respondent, his Honour allowed an overall discount of 25 percent having regard not only to the utilitarian value of the plea, but also to contrition and the fact that the grief of the family would not be exacerbated by a trial.
45 He also said that the plea was entered on the first day of the trial and preceded the voir dire (which would have included argument on the admissibility of the admission made to "Jennifer") and the empanelling of the jury, and that the respondent and his co-offender had admitted wrongful conduct at a "relatively early stage of proceedings" indicating a willingness to facilitate the course of justice as well as some aspects of contrition: at [44].
46 In my opinion, the discount of 25 percent for all aspects of the plea of guilty was excessive in the circumstances.
47 The plea of guilty was not entered on the first day, 14 July 2003. At that stage, he was charged with murder and attempted murder (for attempting to fire at the deceased's friend, Andrew Clayton). He offered to plead guilty to murder on the first day on the basis that there be no further proceedings in respect of the attempted murder charge and on the factual basis that he had not fired the gun. The second day was taken up with a view. On the third day, the Crown accepted the offer to plead guilty to murder and agreed that there would be no further proceedings in relation to the attempted murder count, and it was then that the plea was entered but at that stage, it was anticipated there would still be a factual dispute on the issue of who fired the gun, and as to the admissibility of the recorded conversation with "Jennifer". The respondent's matter was then adjourned to 4 August so that reports could be obtained from Juvenile Justice and a psychologist, and it was on that day that the respondent through his counsel, formally admitted that he had fired the fatal shot and the Crown Case Statement in relation to him was admitted without objection as a statement of the facts in the case.
48 The entry of the plea certainly had significant utilitarian value but it could not fairly be classed as an "early" plea. The other aspects of the plea, namely contrition, and the fact that the grief of the family would not be exacerbated by a trial, were both also of reduced significance having regard to the facts of the case.
49 It would not have been necessary for any of the members of the deceased family to give evidence, so they were not vulnerable as witnesses, although the trial would undoubtedly have been painful for them. In relation to the element of contrition and admission of wrongdoing, this was late and then only grudgingly given.
50 Following the shooting, the respondent had at least twice bragged about it to his friends and later to "Jennifer". He and his co-accused had fled to Lebanon shortly after the shooting and although they had returned, the respondent had not come forward with any confession over a period of 12 months and when arrested, although admitting he was present, claimed that the co-offender, Diab had fired the fatal shot, also claiming that he did not see the gun and was unaware that it was in the car. Then after the formal entry of the plea of guilty on 16 July, although he told Dr Lennings on 29 July that it was he who shot the deceased, on the following day he told the Juvenile Justice officer that he did not pull the trigger and was simply in the wrong place at the wrong time. He also gave inconsistent versions as to how he came into possession of the gun, telling the Juvenile Justice officer that he had borrowed it from a friend for protection because he had been bashed, but telling Dr Lennings that he had purchased the gun to make him feel brave after he had been assaulted. The admission of the full extent of his involvement in the death of the deceased was therefore only made grudgingly, and after the plea of guilty had been entered.
51 He did express some contrition, but this also appears to have come only in his interviews with the Juvenile Justice officer and Dr Lennings after the plea had been entered.
52 Having regard to these circumstances, I consider that a discount of around 15 percent was appropriate to take into account all the relevant elements of the plea, and that a discount of 25 percent in the circumstances of this case was excessive.
GROUND 7: The sentence was manifestly inadequate.
53 I have already identified what I consider to be a number of errors in his Honour's reasoning in determining the respondent's sentence and it is not necessary to repeat them. For the same reason, it is not necessary to again elaborate on the significant features relevant to the objective circumstances of the offence or the subjective circumstances of the respondent, but having regard to the various matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, I am satisfied that the sentence imposed by his Honour was manifestly inadequate and that this Court should set it aside and re-sentence the applicant, bearing in mind the principles which apply in such circumstances: R v Allpass (1993) 72 A Crim R 561 at 562-3.
54 That means that in re-sentencing the respondent, the Court gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence which is somewhat less than the sentence it considers should have been imposed at first instance. This has variously been described as "the least sentence which could properly have been imposed …at first instance": R v Rose (unreported - CCA - 23 May 1996), as "one which is at the bottom of the range": R v Giam (No 2) [1999] NSWCCA 378, (1999) 109 A Crim R 348 at [28], and one "towards the lower end of the range of available sentences": Dinsdale v The Queen [2000] HCA, 202 CLR 321 at [62]. See also R v Kalache [2000] NSWCCA, 111 A Crim R 152 at [101], [205]-[206].
55 I therefore propose that the Crown appeal be allowed, that the sentence imposed on the respondent be quashed and in lieu thereof, that he be sentenced to imprisonment for 16 years, such sentence to be deemed to have commenced on 18 April 2002, and to expire on 17 April 2018. I would fix a non-parole period of 11 years to expire on 17 April 2013 on which date the respondent will be eligible to be released on parole. I would confirm his Honour's order that the respondent serve that sentence in a children's detention facility until he turns 21 years.