(e) The failure of the sentencing judge to recognise the utilitarian value of the earlier plea of guilty was conclusively revealed by the sentence for the common assault in which the applicant received the maximum penalty of two years with respect to that charge.
19 It is plain from what his Honour said in the extract that I have quoted that he only took the early plea of guilty into account "to a very limited extent" and this by reason of the applicant's subsequent conduct as revealing lack of contrition.
20 Accordingly, the sentencing judge heavily discounted the utilitarian value of the plea by reason of one aspect associated with the early plea - contrition. In doing so, I consider his Honour erred. The net result of the approach taken was to give the plea little weight, notwithstanding the fact that it was an early plea and the various benefits associated with the plea which involved removing the need for witnesses, including the victims, of the requirement to give evidence.
21 The rationale and the underlying purpose in affording a discount on the sentence, as explained by Spigelman, CJ. in Regina v. Thomson & Houlton (2000) 49 NSWLR 333 at 418-419, has essentially been excluded from operation by the approach which his Honour took based wholly upon the applicant's subsequent conduct. The conclusion expressed by the Chief Justice in Thomson & Houlton emphasised that:-
(a) A plea of guilty may encompass any or all of the matters to which the plea may be relevant, namely: contrition; witness vulnerability; utilitarian value.
(b) In relation to a plea's utilitarian value, encouragement was given to the quantification of it.
(c) The utilitarian value of a plea to a criminal justice system should generally be assessed in the range of 10 to 25% discount on sentence.
(d) The primary consideration determining where in the range a particular case should fall is the timing of the plea.
(v) What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
22 Whilst the Crown conceded that the plea was at the earliest available opportunity, the sentencing judge only gave the applicant the benefit of it "to a very limited extent" by reason of a matter unrelated to its utilitarian value. That other matter was the element of contrition. Moreover, the sentencing judge's approach was that later events (the applicant's subsequent conduct) undermined the element of contrition. As I have stated, that approach could not undermine the utilitarian value of the early plea.
23 I will return to consider the significance of the error shortly.
24 Ground 3 is expressed as his Honour erred in failing to apply the principles in Regina v. Fernando (1992) 76 A. Crim. R. 58. Counsel for the applicant contended that not only did the remarks on sentence not refer to the Aboriginality of the applicant, but that the material before the court was such that it was appropriate to apply the principles in Fernando (supra) and to mitigate penalty. It is contended that her offending behaviour was directly connected to her Aboriginality.
25 The Crown submitted that this is not a Fernando case in the requisite sense and relies upon the discussion of the principles by Wood, J, as he then was, especially at pp.62 to 63 of the reported decision. The Crown further submitted, in this respect, that the applicant's personal circumstances and her offending behaviour do not meet the relevant criteria and that the Fernando principles do not apply to every Aboriginal offender: Regina v. Vincent (aka Harris) [2005] NSWCCA 135, especially at [11] per Spigelman, CJ., with whom Studdert and Greg James, JJ. concurred; Regina v. Walter & Thompson [2004] NSWCCA 304 per Grove, Sully and Kirby, JJ., and Regina v. Newman & Simpson (2004) 145 A. Crim. R. 361 per Howie, J. at [57] to [68], McColl, JA. concurring.
26 Having considered this matter, I am of the view that the Fernando principles do not apply to the applicant. She is of Aboriginal heritage and was taken with her younger brother to Coonamble by her father when her parents separated when she was aged four years. She was, according to the Probation and Parole Service pre-sentence report dated 15 March 2004, raised by a woman who was apparently a relative of her father. She claims to have been abused by relatives and came to Sydney in her early teens when she commenced her illicit drug use.
27 The applicant's family and social factors are, beyond question, tragic but are not referable to the applicant's membership of the Aboriginal society as such but are unfortunately more generally associated with the destructive effects of drug addiction. In other words, I do not consider that the applicant's Aboriginality is relevant to explain or throw light on the particular offences and the circumstances of the applicant. It is but one factor in an otherwise complex set of negative factors.
28 Ground 4 is expressed as the sentence imposed was manifestly excessive. The Crown concedes that the court should grant leave with respect to Ground 4 and re-sentence the applicant on that count. Having regard to the fact that the maximum penalty for that offence is two years' imprisonment, it is clear that his Honour erred in imposing a fixed term of two years for that offence. The Crown has also submitted that the court should dismiss the appeal with respect to counts one and two because the court could not come to a positive conclusion that any lesser sentences were warranted in law on those counts. The Crown, overall, submits that there should be no change to the applicant's effective sentence.
29 On 26 March 2004, the applicant gave evidence and a pre-sentence report dated 16 March 2004 was tendered without objection. The applicant's evidence outlined her drug addiction and her attendance at a methadone clinic in the past. In relation to the events of 10 June 2003, she gave evidence as to the following. She and her partner had had a fight. She went down to a park and was drinking "with the Kooris" when a friend spiked her drink with Rohypnol. That afternoon she claims that she was raped, that is, prior to the commission of the offences. It was presumably upon the basis of this evidence and the pre-sentence report that the sentencing judge agreed to the application made on her behalf that she be placed on a good behaviour bond and be given the opportunity, prior to the passing of sentence, to participating in a rehabilitation programme to which I have earlier referred.
30 When the matter came back before the sentencing judge on 10 March 2005, there was no reference to the evidence as to the alleged events that overtook the applicant on the afternoon of the day on which she committed the offences. There was no cross-examination of her on the evidence she gave as to those events.
31 If the evidence given by the applicant was accepted, then at least two matters would arise for consideration. Firstly, as to whether, and if so, to what extent the trauma associated with the events would constitute extenuating circumstances. Those events occurring on the day of the offences plainly represented another significant trauma in the applicant's history of abuse.
32 Secondly, the trauma associated, in particular, with the alleged rape, together with the spiking of her drink, could provide a link to and at least constitute a partial explanation of her intoxicated condition which other evidence clearly established.
33 There is no explanation as to why the sentencing judge on 10 March 2005 apparently gave no consideration to these matters as related by the applicant in evidence on the first occasion the proceedings were listed for sentence. Whilst the evidence apparently provided a basis for the sentencing judge to place the applicant on a bond and on remand on 26 March 2004, there is no statement in the remarks on sentence as to why the evidence was of no relevance or consequence in determining sentence on 10 March 2005, the date of sentence.
34 I consider that his Honour erred in failing to consider the possible relevance of the applicant's evidence on the alarming events which she claimed occurred on the day of the offences. However, having given the matter some considerable consideration, notwithstanding such error, I do not consider that it warrants the intervention of this court on that basis.
35 I have so concluded by reason of the fact that the evidence does not tend to show that the applicant embarked on a deliberate course of conduct in obtaining possession of the victims' wallets and then proceeded to assault the second victim's head with a view to overcoming her resistance. It is difficult in the circumstances to attribute and excuse such specific conduct to either the effects of the claimed rape or to the effects of intoxication, including the spiking of her drink.
36 Moving to Ground 6, that the sentencing judge erred by not giving consideration to the penalties that could have been imposed in the Local Court, it has been submitted on behalf of the applicant that, taking the applicant's aggravating and mitigating factors into account, the maximum respective penalty that could have been imposed in the Local Court of 12 months with respect to each offence under s.94 and two years' imprisonment in respect of the offence under s.61, permitted a sufficient range of penalties with which to punish the applicant. It was submitted, accordingly, that the sentencing judge should have had regard to the maximum available sentences in the Local Court when sentencing the applicant but did not have regard to that matter at all.
37 In Regina v. Crombie [1999] NSWCCA 297, Wood, CJ. at CL. emphasised that, at most, the maximum available sentence that could have been imposed in the Local Court in relation to charges dealt with on indictment is but one of the circumstances which is to be taken into account. It was thereby acknowledged that, depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. His Honour added at paragraph 16:-
"... where it appears that the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal".
38 Accordingly, the relevant principle is that a sentencing judge is not required to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. It is but one circumstance to be taken into account by the judge in the exercise of his or her discretion. See also Regina v. Khaled Elomar [2000] NSWCCA 431 at [8].
39 The sentencing judge sought clarification as to why Local Court statistics were being handed up on sentence. The Crown indicated that the statistics were included because the charges could have been dealt with in the Local Court.
40 The sentencing judge did not refer to the penalties that could have been imposed in the Local Court. In doing so, the sentencing judge erred in not giving consideration to that matter. The maximum penalty for an offence under s.94 is a penalty of fourteen years' imprisonment. However, having regard to the fact that the applicant committed the offence whilst on parole, the aggravating circumstances concerning the second steal from the person offence and the level of sentence imposed, I do not consider that his Honour's failure to give consideration to the penalties that could have been imposed in the Local Court could be considered as such in the circumstances of this case to warrant the intervention of this court on that basis.
41 As to determination of this applicant, this court should, in my view, intervene on the basis of Ground 1, that is, his Honour did not give any adequate discount for the applicant's early plea of guilty. I am of the opinion that the utilitarian value of the applicant's plea should be assessed at 25% discount on sentence which should be reflected in both the head sentence and the non-parole period.
42 I propose orders in the following terms:-