Appeal
Ground of Appeal 1: The learned judge erred in his approach to the question of discounting the sentence for possession of a loaded firearm.
23 It was submitted that because a fresh indictment was not filed until 12 July 2005 it was not possible for the applicant to enter a plea of guilty to the alternative offences (counts 2 and 4) until the fresh indictment had been filed. That being the case, the applicant's pleas of guilty should have been regarded by the sentencing judge as having been entered at the earliest time.
24 Reliance was placed on the decision of this Court in Stanford v Regina [2007] NSWCCA 73 at [84] where Rothman J said:
"84 The only other matter to which I will make reference that is agitated under these grounds is the issue associated with the plea of guilty. The sentencing judge referred to the plea of guilty and the timing of it. The applicant pleaded not guilty on 13 September 2005 to an indictment containing six counts, one of which was an offence under s93GA of the Crimes Act 1900 (NSW). On 7 November 2005, the date otherwise set down for trial, the applicant pleaded guilty to the four charges, one of which was the offence under s93G, in lieu of the offence under s93GA. The applicant could have pleaded guilty to the offences, which were being pressed on 7 November 2005, except the s93G offence. However, given the alteration to the charge, the earliest time in which he could have pleaded guilty to all of the offences (and only those offences) for which he was sentenced was 7 November 2005, the date on which he pleaded."
25 In order to test this submission it is necessary to compare the original indictment with the fresh indictment filed on 12 July 2006. The original indictment was in identical terms to the fresh indictment except that count 2 was not expressed as an alternative to count 1 but as an additional charge. That of itself, it seems to me, distinguishes this case from that referred to by Rothman J in Stanford where the offence contrary to s93GA was changed to an offence contrary to s93G Crimes Act 1900.
26 In view of that circumstance I do not see how the applicant's pleas of guilty to the alternative counts on the day fixed for the commencement of the trial could be regarded as having been made at the earliest time. As his Honour said, there was nothing to stop the applicant entering a plea of guilty in the Local Court or on arraignment to counts 2 and 4 thereby putting the Crown to its election as to whether it wished to proceed with count 1 in those circumstances. The utility of a plea of guilty being entered on the first day of trial when all Crown witnesses have been arranged, a jury panel assembled and all other steps completed for the conduct of the trial is significantly reduced.
27 The comments of Howie J in R v Stambolis [2006] NSWCCA 56 are apposite:
"9 The applicant was arrested shortly after he committed each of the two sets of offences for which he was to be sentenced. In both cases he made full admissions to the police. Yet the applicant did not plead guilty in the Local Court but was committed for trial. He did not plead guilty until 24 May 2005, almost eight months after his arrest for the second offence.
10 Apparently the explanation for this delay was that the Crown was considering its attitude to the offence of escape. The Crown had originally found a bill for that offence and the indictment presented against the applicant contained a count for an offence of escape lawful custody. It seems that the applicant was not prepared to plead guilty to any offence charged against him until the Crown determined that the escape could be dealt with on a Form 1. There was a letter from a Crown Prosecutor placed in evidence before the Judge indicating what facts would be alleged to support the charge and that the count of escape would be removed from the indictment and placed on a Form 1. This letter was dated 20 May 2005. The respondent pleaded guilty to the remaining offences on the indictment four days later.
11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provide a basis for asserting that the plea was made at the first reasonable opportunity."
28 In oral submissions it was submitted that although his Honour referred to a discount for the applicant's plea of guilty and for his contrition his Honour did not identify the amount of the discount and it was not discernible from his Honour's reasoning or from the sentence itself that his Honour had given the applicant the benefit of a discount.
29 In support of that proposition reliance was placed upon Stanford v Regina where Rothman J said:
"87 His Honour, although referring to the judgment of this court in Ponfield , supra , concerning the necessity for the discount for a plea of guilty to be discernible, nevertheless imposed a sentence which does not quantify, either expressly or by implication, the discount that has been applied for the plea of guilty. Nor does his Honour discuss where in the range of 10 to 25 percent the discount should fall, either by reference to a percentage or by reference to the relative utilitarian value of the plea. The applicant is left to guess as to the level, if any, of the discount granted. Such an approach is not consistent with the kind of transparency required by s22 and referred to in the authorities."
30 That criticism is not appropriate to his Honour's approach in this case. It is true that his Honour did not specify a percentage. He did, however, make it clear how he regarded the relative utilitarian value of the plea. His Honour found it to be towards the bottom of the range. I agree. In percentage terms the highest at which the discount for the utilitarian value of the plea could be assessed would be 10 percent and even that would be generous in favour of the applicant. Insofar as any discount for contrition was concerned there was, as his Honour pointed out, no evidence of any contrition other than the plea of guilty which of itself was of limited value. Any discount for contrition would be well and truly included in a discount of up to 10 percent for the utilitarian value of the plea of guilty.
31 While this Court has said on a number of occasions that in the interests of transparency it is desirable that sentencing judges should specify the extent of any discount for the utilitarian value of a plea of guilty it is not error for a judge to fail to mathematically quantify such a discount provided it is taken into account. (Markarian v The Queen (2005) HCA 25). Given the circumstances of this case and his Honour's express reference to the discount and its limited utilitarian value, I am satisfied that his Honour did take it into account in formulating his sentence and that the applicant did obtain an appropriate discount for his plea of guilty.
32 This ground of appeal has not been made out.