Richey v R

Background to the offence

1. According to a statement of facts tendered by the Crown at the sentence hearing, the applicant and the female victim, who resided in the township of Orange, were in a relationship, although they did not co-habit. On the evening of Thursday 28 September 2017, pursuant to an earlier arrangement, the applicant and victim met outside a hotel and caught a taxi to the applicant's residence. Upon their arrival, the applicant assaulted the victim, punching her to her face and stomach, kicking her to her stomach and side and dragging her through his residence by her hair. The applicant fell asleep, but the victim was too afraid to attempt to leave. The following morning, the applicant called a taxi which transported the victim home. On arrival, the victim called an ambulance, which took her to Orange Base Hospital, where she was examined by a doctor, Dr Brabin, and found to have three fractured ribs and extensive bruising and abrasions.
2. At the sentence hearing, the applicant tendered a letter in which he acknowledged the injuries, stating that they were "the result of my conduct in the struggle between [the victim] and myself on 29 September 2017 when I tried to remove her from my home".

The remarks on sentence

1. The sentencing judge handed down the sentence immediately following the sentence hearing. In his remarks, his Honour noted issues of reliability with the victim's evidence in the trial, due to "the on and off character of the relationship between the parties, the fragile mental state of the victim and her alcoholism", but ultimately held that the objective evidence in relation to the assault occasioning actual bodily harm charge was compelling. That evidence comprised CCTV images captured in the taxi that conveyed the victim and the applicant to the applicant's residence on the evening of 28 September 2017, which showed the victim to be "in good spirits and uninjured". The taxi driver who took the victim home the next morning gave evidence, summarised in the remarks on sentence as follows: "It is significant that as soon as the victim was picked up by the taxi driver at about 6.30am the driver saw her and said, 'Do you want to go to the police?' [The taxi driver] said she 'didn't look real good', she had black glasses on and that something appeared to be wrong with her face 'as if she had been hit' as indeed, she had, repeatedly."
2. The evidence of the victim's injuries, as recorded by Dr Brabin, was summarised by his Honour as follows: "Dr Brabin … examined the victim and described observing fractures to the sixth, seventh and eighth ribs and multiple bruises and abrasions, including a black eye, a bruised cheekbone, an injury to the top lip, the left cheek and the eyebrows and numerous bruises to the legs and arms. Dr Brabin described ten separate injuries to the legs and a laceration in the mouth. Overall she counted 22 bruises and four abrasions and said that these appeared to be the result of multiple applications of blunt force."
3. As to the appropriate findings of fact for sentence, his Honour said: "There has been some disputation between the Crown and defence ... as to what precisely I should find as to the conduct which caused the injuries but it is unnecessary for me to do so with precision. However, in general, when he gave evidence, [the applicant] downplayed his role in relation to the injuries which she suffered. His version of events was that she was in his house and he wanted her to depart in the morning so that he could go to work. He said he tried to grab her to take her outside and it turned into a struggle, but the suggestion in his version was that the wrestling involved was more or less an accident and, to some extent, her fault."
4. The sentencing judge found that the objective gravity of the offence fell above the midrange, but not towards the top of the range. His Honour acknowledged the importance of general deterrence for offences such as this that occur in a domestic context and noted that the applicant's behaviour could not be excused on the basis that it was the victim who had contacted him whilst he was subject to an apprehended violence order ("AVO") that prohibited him from contacting her.
5. The sentencing judge took into account the maximum penalty for the offence, which is imprisonment for a period of 5 years, as a legislative guide post. At the time of sentence, the applicant was aged 49. His Honour noted that the applicant had a criminal record with several prior offences of assault, although not in the previous 10 years, and that he had not previously received a sentence of imprisonment. He assessed the applicant's prospects of rehabilitation as "good", in view of his solid employment record, his relationship with his father and a lifelong friend and co-worker who had given evidence on his behalf at the sentence hearing. His Honour also noted that the offence was not planned, but that there had been a previous episode of violence with the victim in which the applicant had punched the walls of her residence, which prompted the making of the AVO. His Honour imposed a sentence of 2 years and 4 months, to commence on 26 September 2019 and expire on 25 January 2022, with a non-parole period of 21 months, to expire on 25 June 2021.
6. His Honour also dealt with the applicant for two related charges pursuant to s 168 of the Criminal Procedure Act 1986 (NSW), which were intentionally or recklessly damage property contrary to s 195(1)(a) of the Crimes Act and contravene an AVO contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In his letter, the applicant also expressed remorse for these offences. His Honour convicted the applicant of both charges but did not impose a penalty in view of the sentence for the offence of assault occasioning actual bodily harm.

The learned sentencing judge erred in not applying a sentencing discount to the applicant's sentence in accordance with Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

The early appropriate guilty plea scheme

1. Consideration of the ground of appeal requires an understanding of some aspects of amendments to the Crimes (Sentencing Procedure) Act, including Pt 3, Div 1A, and the Criminal Procedure Act that were introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) ("the amending Act").
2. The amending Act commenced on 30 April 2018. It introduced a new procedure for committals and sentence discounts for pleas of guilty, known as the early appropriate guilty pleas scheme ("the EAGP scheme"). An aspect of the scheme is mandatory sentence discounts of a specified percentage for pleas entered for indictable offences (except in certain cases of extreme culpability), depending upon the stage of proceedings at which the plea was notified to the prosecution. The scheme allows for the recording of an offer by an accused person to plead to an alternative ("different") offence if that offer is rejected by the prosecution, so that if the accused person is ultimately convicted of that "different" offence, he or she may have the benefit of the sentencing discount that applies for a plea entered at that stage of proceedings.
3. For proceedings that commenced before 30 April 2018 and which were not finalised by that date, the former sentencing provisions, including the common law as to sentencing discounts for a plea of guilty, continued to apply: Crimes (Sentencing Procedure) Act, Sch 2, cll 88 and 89.
4. Some of the steps of the new committal procedure are outlined in s 55 of the Criminal Procedure Act, which provides: "55 Outline of committal proceedings steps Subject to this Part, the steps for committal proceedings are generally as follows - (a) committal proceedings are commenced by the issuing and filing of a court attendance notice, (b) a brief of evidence is served on the accused person by the prosecutor, (c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person, (d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person, (e) if the accused person is represented, a case conference certificate is filed in the Local Court, (f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty)."
5. The principal objective of a case conference is identified in s 70 of the Criminal Procedure Act as follows: "70 Case conferences to be held … (2) The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty. …"
6. The contents of the case conference certificate are set out in s 75 of the Criminal Procedure Act, which relevantly provides: "75 Contents of case conference certificate (1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters - (a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166, (b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, (c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences, (d) whether the accused person or prosecution has accepted or rejected any such offers, (e) the offence or offences for which the prosecution will seek committal for trial or sentence, (f) any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person, (g) if an offer made to or by the accused person to plead guilty to an offence has been accepted - details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute, (h) any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999, (i) whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged, (j) any other matters prescribed by the regulations for the purposes of this section. … (4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held."
7. The circumstances in which a sentencing discount may be applied by a sentencing court for a rejected offer to plead guilty to a different offence than that which was charged are set out in s 25E of the Crimes (Sentencing Procedure) Act, which relevantly provides: "25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made (1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was not accepted by the prosecutor, and (d) the offer was not subsequently withdrawn, and (e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence. For the purposes of this subsection, an offence is reasonably equivalent to a different offence if - (a) the facts of the offence are capable of constituting the different offence, and (b) the maximum penalty for the offence is the same or less than the different offence. … (3) Discount variation - offer to plead guilty to different offence The discount to be applied by the court is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial …"
8. A "negotiations document" is defined in s 25B of the Crimes (Sentencing Procedure) Act to include a case conference certificate.
9. I also note s 25F of the Crimes (Sentencing Procedure) Act, which relevantly provides: "25F Other provisions applying to sentencing discount (1) Application This section applies to a sentencing discount under this Division. … (4) Exception to application of discount - disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. (5) Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities."

The relevant procedural history of the matter

1. The relevant procedural history is not in dispute. The applicant was charged with a count of assault occasioning actual bodily harm by way of a Court Attendance Notice ("CAN"), which was created on 29 September 2017 ("the CAN charge"). The CAN charge named the applicant as the defendant and alleged an assault occasioning actual bodily harm, "domestic violence related", against the victim, which was alleged to have been committed "between 2:00 pm on 28/09/2017 and 6.30 am on 29/09/2017 at Orange". It indicated that the matter was listed at Orange Local Court on 30 September 2017. At the same time, the applicant was charged with breaching the AVO.
2. Following the commencement of the amending Act, the applicant was charged with 11 additional offences. The charge certificate specified seven of those counts certified to proceed to the District Court and one as a back-up charge, pursuant to s 166 of the Criminal Procedure Act. These were ultimately the seven counts in the indictment other than the count of assault occasioning actual bodily harm, and the offence of intentionally or recklessly damaging property, which was dealt with as a related charge by the sentencing judge.
3. On 31 January 2019, a case conference was conducted in relation to those seven charges and the back-up charge that were identified in the charge certificate as proceeding. Five of those seven charges related to the same date as that on which the assault occasioning actual bodily harm was alleged to have been committed, namely, between 28 and 29 September 2017. On 4 February 2019, at Orange Local Court, a case conference certificate was filed. It noted that an offer had been made by the applicant, which was rejected by the prosecutor. The "Details of Offer" were recorded in the case conference certificate in the following terms: "Plea of guilty to one offence of Assault Occasioning Actual Bodily Harm s59(1) Crimes Act 1900 on the factual basis that on the morning of 29 September between when [the victim] and [the applicant] awoke that morning and when [the victim] left [the applicant's] address in a taxi, [the applicant] and [the victim] became involved in an argument and [the applicant] assaulted [the victim], inflicting actual bodily harm. Plea of guilty to sequence 11, on the basis that damage was caused on a single occasion. All other sequences to be withdrawn."
4. The same day, 4 February 2019, at Orange Local Court, the applicant was separately committed for trial by the magistrate on the charges certified in the case conference certificate and on the CAN charge.
5. At the sentencing hearing, counsel for the applicant drew his Honour's attention to the offer that was recorded in the case conference certificate and submitted that, in view of the jury's verdicts, the applicant was entitled to a sentencing discount of 25 per cent. The Crown did not oppose his Honour unsealing and reading the certificate, responding: "I accept that offer was made and rejected … It was made on a very specific factual basis is the only other aspect of it". Upon reading the details of the offer, his Honour asked the parties: "The way that [counsel for the applicant] is putting the facts this morning … is what essentially was put in the offer, wasn't it?". Counsel for the applicant agreed.
6. In his remarks, the sentencing judge declined the submission, stating: "It is true that, on that occasion, 19 January this year, [the applicant], through his counsel and solicitor, made an offer to plead guilty to the assault occasioning actual bodily harm charge if other charges were dropped. However, in light of the evidence he gave at the trial, that exercise loses any force it may have had as indicating an early plea of guilty. If one looks at the trial transcript, particularly at pp 249, 250, 252 and 254, it is plain that [the applicant] was attempting to remove any criminal liability for himself for an assault occasioning actual bodily harm. At one stage he said that he struck the lady because she was attempting to choke her son which, of course, would, in law, if true, amount to defence of another and, therefore, a complete defence against the charge of assault. I reject that version of events, as the jury, I gather, did. He said that she was hanging onto him and she fell over, hitting her head on a chest of drawers, even though he had her in a headlock at that time, according to him in his evidence. His version included that, after he had called a taxi for her, she was coming down the hallway and he grabbed her and pushed her outside and that, in this exercise of attempt to get her to go, she may have been injured. Given the whole of his evidence, his explanations by no means could explain the multiplicity of injuries carefully detailed by Dr Brabin and shown in the photographs, exhibit A, taken shortly after the events in question. The truth I find is that this very tall, powerfully built man saw fit to give a thrashing to the victim, a woman who had been emotionally attached to him and would have been helpless to defend herself against his violence. It was a callous episode … As I have said before, noting the way in which at pp 249 to 254 [the applicant] made various denials, this is not a case where a discount is permissible for an early plea or indication of remorse or assistance in the administration of justice."

The applicant's submissions

1. The applicant submitted that a proper application of the relevant legislation established that he was entitled to a utilitarian discount of 25 per cent on his sentence of imprisonment for the offence. Specifically, the applicant's offer to plead guilty complied with s 25E(1) of the Crimes (Sentencing Procedure) Act because: it was recorded in a case conference certificate, being a "negotiations document" (s 25E(1)(a)); it was for a "different offence" at the time that it was made (s 25E(1)(b)); the offer was not accepted by the DPP (s 25E(1)(d)); the offer was not subsequently withdrawn (s 25E(1)(d)); and the applicant was found guilty of that offence, which was added as an alternative to the third count on the indictment after the offer was made (s 25E(1)(e)). As the applicant's offer was made before committal, it was submitted that he was entitled to a 25 per cent reduction in his sentence of imprisonment, pursuant to s 25E(3)(a).
2. It was submitted that the sentencing judge's reasoning in rejecting the submission made on behalf of the applicant, that his offer entitled him to a discount on sentence, disclosed error. His Honour appeared to have applied common law considerations to that issue, rather than the requirements of the EAGP scheme. In any event, at common law, as it applied prior to the introduction of the legislative scheme, an offer of a plea that was rejected by the DPP but was consistent with a jury verdict at trial was capable of resulting in a discount, even though there was no utilitarian value: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32] (Howie J; McClellan CJ at CL and Simpson J agreeing).
3. The applicant submitted that the terms of s 25E are consistent with this previous approach at common law, which had been a discount "capable" of being applied, now being obligatory, once the pre-conditions at s 25E(1)(a)-(e) are met.
4. The applicant submitted that if the Court is persuaded that error is made out, it will be necessary for the applicant to be re-sentenced, and that on re-sentence, a lesser sentence would be warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Should that circumstance arise, the applicant sought to read an affidavit in which he referred to his progress in custody since his sentence and certain health issues, and an affidavit of his solicitor, annexing excerpts of the applicant's Corrective Services and Justice Health files in support of the contents of the applicant's affidavit.
5. The applicant submitted that, for the purposes of the application of the EAGP scheme, it is the "substance of the offence" that is relevant. Factual differences between the version alleged by the applicant in the "Details of Offer" and that found by the sentencing judge were not a material consideration.
6. In oral submissions, the applicant submitted that there were "simultaneous proceedings" against the applicant, being the CAN charge and the charges that were laid after 30 April 2018. The offer that was recorded in the case conference certificate was in response to those seven charges, which included the charge in respect of which, in the indictment, the count of assault occasioning actual bodily harm was placed as an alternative.

The respondent's submissions

1. The respondent submitted that the count of assault occasioning actual bodily harm for which the applicant was convicted was the CAN charge. Accordingly, that charge was not subject to the EAGP scheme and for that reason did not appear on the charge certificate and was not considered at the case conference. As the EAGP scheme did not apply to the count for which the applicant was convicted, he was to be sentenced for it according to the common law.
2. The award of a discount on account of a plea offer at common law is discretionary: Merrick v R [2017] NSWCCA 264 at [105] (Gleeson JA, Beech-Jones and Fagan JJ). The respondent submitted that the applicant had not demonstrated any error in the exercise of the sentencing judge's discretion in this respect. The applicant had given an exculpatory account in his evidence at trial that was inconsistent with the evidence accepted by the jury. In the event that the Court accepted that submission, the respondent sought to read an affidavit of a solicitor in the employment of the respondent that annexed the transcript of the evidence of the victim and applicant in the trial, being material relevant to the question of whether the sentencing judge had exceeded his common law discretion in determining that a utilitarian sentence discount was not warranted. The applicant opposed the affidavit being read, for the reason that the material was irrelevant, as that was not the basis of the appeal.
3. The respondent submitted in writing that, even if the EAGP scheme had applied, the preconditions that are required by s 25E(1) for a discount to apply were not satisfied. One of those preconditions is that the "different offence" was not an offence which was the subject of the proceedings when the offer was made: Crimes (Sentencing Procedure) Act, s 25E(1)(b). The CAN charge was part of the same committal proceedings and therefore could not have constituted a "different offence". However, in oral submissions, the respondent said: "The two proceedings were separate, [the CAN charge] which was governed by the common law at all times … and the other set of proceedings which were the early appropriate guilty plea proceedings …"
4. The respondent characterised the applicant's submission as an offer to plead to the CAN charge, proposing different facts to those alleged by the Crown, on condition that all charges that were laid after the amending Act had commenced were withdrawn. If, however, the applicant had entered an unconditional plea of guilty to the CAN charge in the Local Court, he would have been entitled to a 25 per cent discount on his sentence at common law.
5. It was further submitted that if, hypothetically, the CAN charge had been subject to the EAGP scheme, the applicant's offer of a plea would not have entitled him to a sentence discount in any event, because a condition that other charges which are unrelated to the offence in question be withdrawn, would have been contrary to the EAGP scheme, since it is not within the terms of s 25E.

The applicant's response

1. On appeal, counsel for the applicant accepted the hypothetical submission, put in slightly different terms, that if the fourth count in the indictment (the alternative count of assault occasioning actual bodily harm) had been a charge considered in the case conference, the terms of the applicant's conditional offer would not have entitled him to a sentence discount.
2. However, the applicant submitted that the terms of s 25E did not preclude a conditional offer of the type made by the applicant when a charge of assault occasioning actual bodily harm was not an offence shown in the charge certificate.

Consideration

1. The reference in the sentence hearing to the case conference certificate was brief. Neither party provided the sentencing judge with a procedural history of the matter, and the only observation by the Crown on that issue was open to an interpretation that the offer recorded in the case conference certificate was relevant but should be rejected because it was contingent upon a factual basis that had been rejected.
2. The sentencing judge appears to have proceeded on the understanding that the offer had been made expressly in relation to the fourth count. In his Honour's consideration of the applicant's offer in the remarks on sentence, he did not allude to the EAGP scheme. His Honour rejected the submission that the offer entitled the applicant to a sentence discount on the basis that the same exculpatory account, which had been maintained at trial and at the sentence hearing, was contrary to the evidence, thus eliminating any utilitarian benefit of the plea offer.
3. I accept the applicant's submission that there were simultaneous, or parallel, proceedings on foot at the committal stage, that eventually became one proceeding in the terms of the indictment. On that basis, it was open to the applicant to make an offer of a "different offence" at the case conference in relation to the offences specified in the charge certificate. It happens that the terms of the offer coincided with the CAN charge, but in my view, that did not disentitle him to seek to resolve the charges that were specified in the charge certificate at the case conference with that offer. Accordingly, I do not accept the respondent's written submission that the term "proceedings", in the context of s 25E of the Crimes (Sentencing Procedure) Act, refers to committal proceedings generally, rather than committal proceedings that are pursuant to the EAGP scheme. It is apparent from the terms of s 55 of the Criminal Procedure Act, reproduced at [31] above, that "proceedings" refers to committal proceedings "as set out in this Part", which I infer is committal proceedings pursuant to the EAGP scheme.
4. There were, in effect, two conditions to the offer: that the proposed factual basis of the plea be accepted; and that all other charges, including those that related to the episode on 21 September 2017, be withdrawn.
5. Although the sentencing judge was unable to make specific findings as to the circumstances in which the applicant inflicted the injuries on the victim, as noted at [24] above, he expressly rejected the applicant's version and concluded that he was a "very tall, powerfully built man" who had callously given her a "thrashing", against which she would have been helpless to defend herself.
6. These findings were contrary to the first pre-condition to the offer, that the proposed factual basis of the plea be accepted. The applicant's submission that differences between the factual basis of an offer by an accused person to plead to a particular offence and the facts found by the sentencing judge is not a material consideration, in my view, is inconsistent with a textual and purposive analysis of the legislation that was introduced by the amending Act. As noted above, s 25F(4) of the Crimes (Sentencing Procedure) Act entitles the sentencing court to either reduce the sentencing discount that is otherwise applicable, or not apply it at all, if the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. The sentencing judge's findings in relation to the disputed accounts of the applicant and victim given at trial, in his Honour's view, entirely eliminated the subjective considerations and utilitarian value of the plea.
7. Accordingly, the sentencing judge acted within his discretion pursuant to s 25F(4) to not apply at all the sentencing discount. I note that my view coincides with the brief observation made by counsel for the respondent at the sentence hearing.
8. That being so, it is unnecessary to consider whether the second precondition to the applicant's offer recorded in the case conference certificate, that all other charges be withdrawn, disentitled him to a sentencing discount.
9. I would dismiss the ground of appeal.
10. I propose the following orders: 1. Application for leave to appeal granted; 2. Appeal dismissed.

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