Slater v R [2014] ACTCA 33

Slater v R [2014] ACTCA 33 | Case summary | Zoe

On 27 June 2013, the appellant was sentenced by Nield AJ for eleven offences to an aggregate term of imprisonment of five years and six months commencing 10 April 2012 and expiring on 9 October 2017 with a non-parole period of three years and six months also commencing 10 April 2012 and expiring on 9 October 2015. The offences and sentences imposed by Nield AJ were as follows: (a) For an offence of ride/drive motor vehicle without consent, the appellant was sentenced to one year nine months’ imprisonment to commence on 10 April 2012 and end on 9 January 2014. (b) For an offence of theft, the appellant was sentenced to one year nine months’ imprisonment to commence on 10 June 2012 and end on 9 March 2014. (c) For an offence of drive motor vehicle without consent, the appellant was sentenced to two years eight months’ imprisonment to commence on 10 June 2012 and end on 9 February 2015. (d) For an offence of damage motor vehicle, the appellant was sentenced to two years eight months’ imprisonment to commence on 10 August 2012 and end on 9 April 2015. (e) For an offence of assault, the appellant was sentenced to two years eight months’ imprisonment to commence on 10 August 2012 and end on 9 April 2015. (f) For an offence of assault, the appellant was sentenced to two years eight months’ imprisonment to commence 10 October 2012 and end on 9 June 2015. (g) For an offence of attempted aggravated robbery, the appellant was sentenced to three years seven months’ imprisonment to commence on 20 December 2012 and end on 9 July 2016. (h) For an offence of aggravated burglary, the appellant was sentenced to three years seven months’ imprisonment to commence on 10 February 2013 and end on 9 September 2016. (i) For an offence of aggravated robbery, the appellant was sentenced to four years six months’ imprisonment to commence on 10 February 2013 and end on 9 August 2017. (j) For an offence of theft, the appellant was sentenced to two years eight months’ imprisonment to commence on 10 April 2013 and end on 9 December 2015. (k) For an offence of aggravated robbery, the appellant was sentenced to four years six months’ imprisonment to commence on 10 April 2013 and end on 9 October 2017.
The appellant has appealed from the sentences imposed by Nield AJ. The grounds of appeal are: (i) The learned sentencing judge failed to properly apply the totality principle; (ii) The learned sentencing judge failed to give sufficient weight to the fact that the appellant had already served a lengthy sentence of imprisonment in New South Wales prior to his being extradited to the Territory to face the charges in respect of which he was sentenced in this honourable Court; (iii) The learned sentencing judge erred by giving no or insufficient weight to the sentences imposed upon the appellant’s co-offenders; (iv) The learned sentencing judge failed to give sufficient weight to the age of the appellant at the time of the commission of the offences; (v) The learned sentencing judge erred in concluding that a discount of only 10% was appropriate for the appellant’s pleas of guilty to the charges in respect of which he was sentenced; and (vi) The learned sentencing judge erred in giving weight to information and/or documentary material that was not properly before the Court. Principles governing this appeal
In sentencing the appellant, Nield AJ was exercising a discretion. The principles governing an appeal from a discretionary judgment are well settled. This Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentences imposed. This Court may only interfere with the sentences imposed if there is error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-5, that is, where the sentencing judge acted on a wrong principle, took into account irrelevant matters, failed to have regard to a material consideration, mistook the facts or the result was so “unreasonable or plainly unjust” that this Court might infer error. A sentence will be “unreasonable or plainly unjust” where it is manifestly inadequate or excessive: Markarian v The Queen (2005) 228 CLR 357 at [25].
The appellant has not alleged in his grounds of appeal that the sentences imposed by Nield AJ, either individually or in the aggregate, are manifestly excessive. Facts
At about 7:30 pm on 9 October 2010, the appellant entered Oxley Court serviced apartments in Griffith in the Australian Capital Territory with two co-offenders and armed with a wooden-handled axe. The appellant used the axe to enter the office area of the apartments. Property within the office was damaged, however nothing was taken. Shortly after, BC and TL were leaving the serviced apartments when they saw the appellant leave the reception area. After a brief conversation, the appellant raised the axe and lunged towards BC. BC and TL ran from the appellant and his co-offender and entered BC’s vehicle. BC attempted to start the vehicle, however the appellant approached the driver’s side door and yelled for BC to get out and hand over his keys. The appellant then broke the driver’s side window using the axe with such force that the axe head was dislodged and landed on the passenger side foot well within the vehicle. The axe head struck BC as it entered the broken window. BC and TL escaped the vehicle and ran to a nearby shop to get help. The appellant and a co-offender took a wallet from the vehicle and then left the area.
Sometime on 9 October 2010, a silver Alfa Romeo motor vehicle was stolen from a residence in Jerrabomberra New South Wales. At about 7:50 pm there was an incident at a supermarket in Narrabundah in which the appellant threw the wallet belonging to BC at a staff member, before leaving the supermarket. The appellant then entered the stolen silver Alfa Romeo, which was driven away by a co-offender.
At about 8:20 pm on 9 October 2010, the appellant approached a vehicle that was parked on Light Street, Griffith, ACT. The vehicle’s owner, SB, and another person RT were seated in the vehicle. The appellant opened the doors of the vehicle and yelled at SB and RT before moving a short distance away. The appellant then ran back to the vehicle and jumped onto the bonnet, standing on the windscreen and causing it to crack. The appellant then jumped down from the windscreen, and approached the open passenger door and struck RT a number of times before the appellant and a co-offender dragged RT from the vehicle. RT then felt someone stomping on his neck and spine. An esky was removed from the vehicle at this point. While this was happening, a co-offender approached SB and demanded cigarettes. When she refused, the appellant’s two co-offenders had a conversation about punching SB. Someone then struck SB. After a short time the appellant and his co-offenders left. SB’s wallet had been stolen from the centre console of the vehicle. As a consequence of the assault RT suffered cuts to the inside of his mouth which caused bleeding, a lump on the forehead and cuts and abrasions to his head and face.
At about 8:36 pm on 9 October 2010, the appellant together with four co-offenders broke into a small supermarket in Kambah. They took items from the store and placed them in the stolen Alfa Romeo before leaving the area at high speed. A large amount of property was stolen including alcohol, bus tickets and phone cards.
At about 9:30 pm on 9 October 2010, SH was walking to her car parked at Griffith shops. As she was walking to her car she saw that a vehicle was driving slowly around the car park. SH reached her car and got into the car and locked the doors. At this point the appellant and a female co-offender approached the car and banged on the windows of the car. The appellant and his co-offender gestured to SH to get out of the vehicle. SH began beeping her car horn to try to attract attention. The appellant then said words to the effect of “Bitch, you are going to get it now”. The appellant then moved away from the vehicle before kicking it. The appellant and his co-offender continued banging on the vehicle before the appellant walked to the front of the vehicle and gestured he was going to throw a rock at the vehicle. SH placed the vehicle into reverse and collided into a parked vehicle. At that time, she heard her front windscreen smash and was sprayed with glass. Either the appellant or his co-offender then attempted to reach into the vehicle to grab SH’s handbag. SH continued reversing, and was able to leave the car park.
At about 10:10 pm on 9 October 2010, LD arrived at her home in her Toyota Avalon motor vehicle, with her five-year-old son sitting in the back. After getting out of her car LD went to the back passenger door to remove her son. While she was doing this, the appellant entered the vehicle and sat in the driver’s seat of the car and began to reverse out of the car port. The appellant then began to drive away, but got out of the vehicle when it was still moving, taking LD’s handbag with him. Throughout this incident two of the appellant’s co-offenders were in a nearby vehicle watching.
At about 10:20 pm on 9 October 2010, SM arrived at Northbourne Flats in Braddon to meet a friend. While waiting for his friend, one of the appellant’s co-offenders asked SM a cigarette, which he provided. A further co-offender took SM’s phone, which she refused to return. The appellant struck SM to the face, causing him to fall to the ground. SM was then punched and kicked by the appellant and his co-offenders. As a consequence he suffered abrasions, lacerations and swelling. The grounds of appeal Grounds (i) and (ii): The Totality Principle
It is convenient to deal with these grounds of appeal together. The offences for which sentences were imposed by Nield AJ all occurred on 9 October 2010. On the night of 9 October 2010, after having committed these offences, the appellant left the ACT and in the early morning hours of 10 October 2010 was arrested by New South Wales police.
On 13 January 2011, the appellant was sentenced at Griffith Local Court for contravening an Apprehended Violence Order on 15 August 2010. He was sentenced to two months and two days’ imprisonment commencing 12 November 2010.
On 2 March 2011, at Griffith Local Court he was sentenced in relation to a range of offences as follows: (a) Offences which occurred on 22 and 23 July 2010 – (i) Damage property – three months’ imprisonment commencing 10 October 2010; (ii) Assault occasioning actual bodily harm – twelve months’ imprisonment commencing 10 October 2010, with a non-parole period of eight months commencing the same date; and (iii) Stalking – six months’ imprisonment commencing 10 October 2010. (b) Offences which occurred on 7 August 2010 – (i) Two counts of stalking – twelve months’ imprisonment commencing 10 October 2010 with a non-parole period of eight months commencing the same date; (ii) Dangerous driving – four months’ imprisonment commencing 10 October 2010; and (iii) Driving while disqualified – five months’ imprisonment also commencing 10 October 2010. (c) Offences which occurred on 8 August 2010 – (i) Driving while disqualified – twelve months’ imprisonment commencing 10 October 2010; and (ii) Driving dangerously in a police pursuit – sixteen months’ imprisonment commencing 10 October 2010 with a non-parole period of twelve months commencing the same date. (d) An offence of assaulting a police officer which occurred on 14 August 2010 – sixteen months’ imprisonment commencing 10 October 2010, with a non-parole period of nine months commencing the same date. (e) An offence of being armed with intent to commit an indictable offence which occurred on 24 August 2010 – fifteen months’ imprisonment commencing 10 November 2010 with a non-parole period of nine months commencing the same date. (f) An offence of taking and driving a conveyance without consent of the owner which occurred on 19 September 2010 – eighteen months’ imprisonment commencing 10 December 2010 with a non-parole period of twelve months commencing the same date. (g) An offence of dishonestly obtaining a benefit by deception which occurred on 20 September 2010 – two months’ imprisonment commencing 10 December 2010. (h) Offences which occurred on 25 September 2010 – (i) Driving dangerously in a police pursuit – nineteen months’ imprisonment commencing 10 December 2010; and (ii) Driving whilst disqualified – twenty months’ imprisonment commencing 10 December 2010, with a non-parole period of thirteen months commencing the same date. (i) Offences which occurred on 4 October 2010 – (i) Driving dangerously in a police pursuit – two years’ imprisonment commencing 10 April 2011, with a non-parole period of eighteen months; and (ii) Driving whilst disqualified – two years’ imprisonment commencing 10 April 2011 with a non-parole period of eighteen months commencing the same date. (j) Offences which occurred on 10 October 2010 – (i) Being carried in a conveyance without the consent of the owner – eighteen months’ imprisonment commencing 10 December 2010, with a non-parole period of thirteen months; and (ii) Receiving stolen property – six months’ imprisonment commencing 10 December 2010.
These sentences produced an effective total sentence of two and a half years.
The appellant appealed the sentences imposed in the Local Court in March 2011 and, in May 2011, the District Court at Griffith dismissed all appeals with the exception of the 4 October 2010 offences, for which the non-parole period was reduced from eighteen months to twelve months to date from 10 April 2011. This resulted in the appellant’s release on parole in New South Wales on 9 April 2012, at which time he was extradited to the ACT.
Nield AJ recognised the necessity to take into account the sentences imposed in New South Wales when sentencing the appellant. In the course of his sentencing remarks his Honour said at [46]: I must refer to the fact... that the offender since his arrest on 10 October 2010 has been dealt with in New South Wales for 17 offences committed before 9 October 2010 and the fact... that the offender since his arrest on 10 October 2010 has been dealt with in New South Wales for two offences committed on 10 October 2010, albeit, as I have said, that the sentences for the offences committed on 10 October 2010 were subsumed in the sentence for the offence committed on 4 October 2010. The offender’s counsel submitted that the decision of the High Court in Mill (1988) 166 CLR 59 required that I take into account, in determining an appropriate sentence for each of the subject offences, the fact that the offender was imprisoned in New South Wales from 10 October 2010 to 9 April 2012 for a number of offences committed earlier than 10 October 2010. However, it must be noted that the 17 offences for which sentences were imposed upon the offender... were not, “so closely related in time and character”, to use the words of Street CJ in Todd (1982) 2 NSW LR 517, to the subject offences committed on 9 October 2010. It is difficult to see that the sentences imposed upon the offender for the 17 offences committed before 9 October 2010 should be taken into account in determining appropriate sentences for the subject offences, because the offences committed before 9 October 2010 were not “of the same nature and committed at about the same time” to use the words of the High Court in Mill. Indeed, the High Court stated, as to the facts in Mill, that: The proper approach... Was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. The offender had committed the various offences... in New South Wales all unrelated to the offences committed on 9 October 2010 in the ACT. That said, however, I realise that the long deferment of the punishment of the offender with the consequent uncertainty of what will happen to him raises considerations of fairness to an offender which must be taken into consideration when the Court is determining an appropriate head sentence.
In his written submissions in support of the appeal, the appellant said: The first two grounds of appeal raise an issue concerning whether the learned sentencing judge applied the principle of totality when sentencing the Appellant. The Appellant submits that he did not. In the Appellant submission in the circumstances facing the learned sentencing judge, it was necessary for His Honour to approach the task of sentencing the Appellant by considering what sentences should be imposed for the Territory offences additional to that already imposed in New South Wales as if all offences had been committed in the one jurisdiction. That this is the proper approach appears to be clear from a line of authorities including R v Harrison (1990) 48 A Crim R 197 and Regina v The Queen (2004) 149 A Crim R 583.... This line of authority extends the principle enunciated in Mill v R (1988) 83 ALR 1 to cases such that [sic] this case.
In Mill v The Queen (1988) 83 ALR 1, the offender committed three armed robberies, two in Victoria and one in Queensland, within a period of six weeks in December 1979 and January 1980. In September 1980, he was sentenced for the Victorian offences to 10 years’ imprisonment with a non-parole period of eight years. On his release on parole in Victoria, he was arrested and returned to Queensland where he was convicted of the Queensland offence and sentenced to imprisonment for eight years, with a recommendation that he be considered for parole after three years in recognition of the fact that he had already served eight years for the Victorian crimes. An application for leave to appeal on the ground that the Queensland sentence was manifestly excessive was refused by the Court of Criminal Appeal. On appeal in the High Court, the offender argued that when being sentenced for the Queensland offence, he should receive a sentence which would be consistent with the totality of the sentences he would have received if he had committed all of the offences in the State of the original sentencing court (Victoria) and had been sentenced for all offences on the same date. In a joint judgement, the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) referred at 3, with approval, to the description of the totality principle found in Thomas, Principles of Sentencing (2nd ed, 1979): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.
The High Court said, at 3: Where the principal falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
The difficulty which confronted the sentencing judge in Queensland in Mill was that there were no statutory provisions allowing the commencement of the sentence imposed for the Queensland offence to be backdated. The sentencing judge imposed a head sentence consistent with the nature of the offence and the circumstances of the offender, and only took into account the sentences imposed for the Victorian offences by reducing what would otherwise have been the appropriate non-parole period. The High Court held that, in those circumstances, the application of the totality principle required not only a reduction in the non-parole period for the Queensland offence, but also a reduction in the head sentence. The High Court acknowledged that this was undesirable, as the low head sentence would fail to reflect adequately the seriousness of the crime in respect of which it was imposed, however, this was preferable to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State borders.
Similarly, in R v Harrison (1990) 48 A Crim R 197, the New South Wales Court of Criminal Appeal considered a case where an offender, after being sentenced in Queensland for offences of armed robbery, later came to be sentenced in New South Wales for similar offences which had occurred in that State. Hunt J, with whom Wood and Finlay JJ agreed, said at 198-9: The duty of the court in the second State which is sentencing a prisoner in those circumstances is to consider what sentence should be imposed for the local offences additional to that already imposed in the other state as if all the offences had been committed in the one State, bearing in mind the principle of totality. But, because there is no power to backdate any new sentence to a time when the prisoner was in custody serving the sentence earlier imposed in the other State, the new sentence should be reduced in order to reflect properly the totality of the prisoner’s criminal behaviour, notwithstanding that the reduced sentence by itself will not reflect adequately the seriousness of the local crime in respect of which it is imposed (and notwithstanding that it may indeed appear by itself to be quite unduly lenient when that crime is viewed alone). Where there has been a lengthy delay in the prisoner being dealt with in the second State, weight must be given to the staleness of the local crime, to the effect upon the prisoner of the uncertainty as to what was to happen by way of punishment for that crime, and the progress of the prisoner’s rehabilitation during that period whilst serving the sentence earlier imposed. That is the approach laid down by this Court in Todd [1982] 2 NSWLR 517, as approved by the High Court in Mill (1988) 166 CLR 59... The principle of totality, of course, applies not only to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 158. It must also be applied where ever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence – whether committed roughly contemporaneously or at widely different times: Bakhos (1989) 39 A Crim R 174 at 177-178; and see Holder and Johnston [1983] 3 NSWLR 245 at 261.
Hunt J’s reasoning was approved by McHugh J in Postiglione v The Queen (1997) 198 CLR 295, and by the Northern Territory Court of Criminal Appeal in Regina v The Queen (2004) 149 A Crim R 583 and a similar approach was taken by the Western Australian Court of Criminal Appeal in Vlek v The Queen (Unreported, WACCA, 29 March 1999). Two distinct principles may be distilled from these cases: (a) the totality principle applies in all cases where a court comes to sentence an offender who is currently serving a term of imprisonment; and (b) where a court is sentencing a multi-jurisdictional offender and cannot achieve appropriate totality by backdating the commencement date of a subsequent sentence, it is appropriate to reduce the head sentence, as well as the non-parole period, of the subsequent sentence to achieve that end.
The present appellant was serving a term of imprisonment imposed in New South Wales, albeit that he had been released to parole, at the time that he was sentenced by Nield AJ and, accordingly, his Honour was obliged to take into account the principle of totality in sentencing the appellant. In that portion of Nield AJ’s sentencing remarks set out at [8] above, his Honour referred to the necessity of taking into account the sentences imposed in New South Wales when he sentenced the appellant. His Honour then went on to deal with a specific submission apparently made by the appellant in the course of sentencing, being that the head sentence for each of the offences should be reduced because of the sentences that had been imposed in New South Wales. That submission was rightly rejected by Nield AJ. In the ACT a sentencing judge may backdate the commencement of a sentence of imprisonment, so that the particular difficulties which arose in Mill, and which led to a reduction in the head sentence in that case, were not present: see s 63(1) Crimes (Sentencing) Act 2005 (ACT). The submission that the totality principle required a reduction in the individual head sentences was not pursued in the course of this appeal. In this appeal, the appellant complained that Nield AJ did not take into account the New South Wales sentences in setting the aggregate sentence which he imposed and in fixing the non-parole period.
The aggregate sentence of five years and six months’ imprisonment imposed by Nield AJ was expressed to commence on 10 April 2012, the date the appellant was released to parole in New South Wales after serving one and a half years of the two and a half year aggregate sentence imposed in that State. This meant that the sentences imposed by Nield AJ were to be served concurrently with the remaining 12 months of the New South Wales sentences. This is a significant period of concurrency. Similarly, the non-parole period of three years and six months imposed by Nield AJ was concurrent with 12 months of the sentences imposed in New South Wales. The effect of the sentences imposed by his Honour, taking into account the sentences imposed in New South Wales, was a head sentence of seven years’ imprisonment and an effective non-parole period of five years. Such a non-parole period was towards the top of, but within the range of, non-parole periods that may be expected to be imposed in this jurisdiction, particularly where, as here, the offender’s prospects for reform were not considered good.
Indeed, the total sentence of seven years for offending that included two aggravated robberies, one attempted aggravated robbery, one aggravated burglary, three offences of driving dangerously in a police pursuit, four assault offences (including one on a police officer) and 19 other offences, suggests a surprisingly lenient approach to the totality of the appellant’s criminal conduct.
Based upon the level of concurrency of the sentences imposed by Nield AJ with the sentences imposed in New South Wales, and the ratio of the effective non-parole period for all offences (both ACT and New South Wales) compared to the aggregate head sentence for all offences we are not persuaded that his Honour did not properly apply the totality principle to the circumstances of the appellant’s offending. This ground of appeal must fail. Ground (iii)
The appellant abandoned this ground of appeal. Ground (iv): Failure to Give Sufficient Weight to the Appellant’s Age
The appellant did not address this ground in his written submissions. It is clear from the sentencing remarks of Nield AJ that he took into account the age of the appellant in sentencing him. As such, his Honour did not fail to take into account a relevant consideration as referred to in House v The King. The present ground of appeal, alleging a failure to give sufficient weight to a material consideration, does not allege a House v The King error (see Bugmy v The Queen [2013] HCA 37, Gageler J at [53]). If it were to have any relevance, it could only be as a particular of a complaint that the sentences imposed were manifestly excessive, a ground not pursued by the appellant (see The Queen v Ang [2014] ACTCA 17 at [22]-[25]). This ground must fail. Ground (v): The Discount for the Appellant’s Pleas of Guilty
The appellant complained that Nield AJ only afforded him a “minimal” discount of 10% in respect of the pleas of guilty he entered. The appellant says that this suggests that not only did his Honour not consider the pleas to be early, but that he regarded them as being late pleas. If he did so regard them, the appellant says, this was an error as some pleas had been entered in the Magistrates Court and other pleas were entered following negotiations between the Crown and the appellant’s representatives, which resulted in some charges not proceeding. In that regard, the appellant referred us to the decision in Cameron v The Queen (2002) 209 CLR 339. In that case the offender was arrested at Perth airport after a quantity of tablets was found in his hand luggage. In a police interview conducted shortly thereafter, he denied any knowledge of the contents of his luggage. He was then charged that he had “in his possession a prohibited drug, namely 3, 4 Methylenedioxy-n, Alpha-Dimethylphenylethyl-Amine with the Intent to Sell/Supply”. The substance referred to in the charge is commonly known as “Ecstasy”. Subsequent analysis of the tablets established that it contained a different substance, namely, methyl amphetamine (also a prohibited drug), and not the substance charged. The particulars of the charge against the offender were appropriately amended, and the offender pleaded guilty to the amended charge. In sentence proceedings the offender submitted that he should be sentenced on the basis that his plea of guilty was a plea entered at the earliest opportunity. The sentencing judge allowed a discount of 10% for his plea of guilty. On appeal, the Court of Criminal Appeal of Western Australia rejected the argument that it was not possible for the offender to enter a plea of guilty until the charge was amended, holding that the nature of the substance was purely a matter of particulars which should not have precluded the offender from entering a plea at an earlier time. The Court nevertheless accepted that the plea of guilty had resulted in an important saving of time and administration in the District Court.
In the High Court, the majority (Gaudron, Gummow and Callinan JJ) held that although the original charge specified the elements of the offence to which he ultimately pleaded guilty, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record. The majority held that the Court of Criminal Appeal was in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly specify the substance which he had in his possession.
The statutory regime in the ACT is relevant to considering this ground of appeal. Section 33 of the Crimes (Sentencing) Act 2005 (ACT) relevantly provides:
Sentencing – Relevant Considerations (1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court: ... (j) a plea of guilty by the offender (see section 35); ... (w) whether the offender has demonstrated remorse. 33. Section 35 of the Sentencing Act specifically deals with the reduction of a sentence for a guilty plea: 35 Reduction of sentence – guilty plea (1) This section applies if – (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plea guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (7) In this section: “available documents”, in relation to the offence, means any of the following: (a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence; (b) depositions taken at any committal proceeding for the offence; (c) any written statements or admissions used as evidence in any committal proceeding for the offence; (d) any other relevant written documents. “defence” means – (a) the offender; or (b) any lawyer representing the offender. “established facts” means facts established by – (a) evidence given at the trial; or (b) available documents; or (c) admissions by the offender; or (d) submissions made by the prosecution or defence.
Concerning the appellant’s pleas of guilty, Nield AJ said in his sentencing remarks (at [37]–[40]): I note that the offender was extradited from New South Wales to the ACT on 10 April 2012 and that he has been in custody, bail refused, since 10 April 2012. On 11 April 2012, the offender appeared before a magistrate in the Magistrates Court in relation to the subject offences. Thereafter, he appeared before a magistrate in the Magistrates Court on five further occasions before 5 July 2012, when he was committed to this court to stand his trial for the offences, other than [an offence of attempted aggravated robbery and an offence of theft] to which he had earlier pleaded guilty. On 12 July 2012, the offender appeared in this court for the first time. Thereafter, he appeared before a judge of this court on a further 17 occasions before 26 April [2013], when he pleaded guilty to the various offences, in addition to the offences to which he had earlier pleaded guilty. It cannot be said that the offender entered early guilty pleas to the offences other than those to which he had earlier pleaded guilty. I do not know why, in view of his admissions to police when interviewed on 22 October 2010, he did not enter guilty pleas earlier than when he did. However, his guilty pleas have value. They have confirmed the Crown’s cases. They have saved the time and costs of the trial. They show that he has accepted responsibility for what he did. They have facilitated the course of justice. However, the value to be given to his guilty pleas must be assessed having regard to the strength of the Crown’s cases, and I think that the Crown’s cases are strong, even to the point of being overwhelming. I intend [to] discount the sentences that I will determine to be appropriate by 10% on account of the offender’s guilty pleas.
In the present case only three of the eleven charges upon which the appellant was sentenced by Nield AJ were less serious charges than those originally proffered by the Crown. The circumstances of this case are very different to those which pertained in Cameron, and the appellant was in a position to indicate his intention to plead guilty to the bulk of the charges at a much earlier stage in the proceedings than he did. Whilst it must be accepted that the pleas to the substituted charges were entered at a relatively early stage, as were the pleas entered to the two charges in the Magistrates Court, this does not, of itself, entitle the appellant to any particular level of discount. In R v Dib [2003] NSWCCA 117 Hodgson J considered (at [5]–[6]) a plea entered after negotiations to have less utilitarian value even if entered at the earliest opportunity: If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages [sic] to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.
It must not be forgotten that in determining the appropriate discount for the appellant’s pleas of guilty, Nield AJ was exercising a discretion. It is not to the point that this Court may have imposed a greater discount with respect to some, or even all, of the pleas entered by the appellant. Error, in the sense contemplated by House v The King, must be demonstrated. Such an error may be demonstrated where a sentencing court incorrectly applies s 35 in assessing the discount for a plea of guilty. While s 35 makes no reference to “early” or “late” pleas of guilty, it is clear that the legislature intended that, as a general rule, the earlier a plea of guilty is entered the greater the discount which may be anticipated: s 35(5).
One of the circumstances a sentencing court is obliged to take into consideration in determining the appropriate reduction of sentence for a guilty plea pursuant to s 35 is whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty: s 35(2)(c). In our opinion, this is a legislative direction that a plea of guilty may nevertheless attract a significant discount if it comes as a consequence of negotiation between the offender and the prosecution, irrespective of when the plea is entered. It seems clear that the intention of the legislature is to encourage negotiation between the parties for the purpose of ensuring the efficient disposition of criminal proceedings. As such, in determining what reduction of sentence for a guilty plea is appropriate under s 35, a sentencing court must consider when it became reasonable for the offender to enter a plea of guilty. The closer a plea of guilty is entered to the time when it first became reasonable for the offender to enter a plea of guilty, the greater the discount that may be expected, leaving aside other considerations.
The time when a plea of guilty is entered is, of course, not the only consideration relevant to determining the level of reduction of sentence under s 35 of the Sentencing Act. A sentencing court must also take into account the seriousness of the offence and the effect of the offence on the victims, both circumstances usually indicating a lesser discount. In addition, a sentencing judge or magistrate must not make any significant reduction for a plea of guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong: s 35(4). His Honour expressed the view that the cases against the appellant were overwhelmingly strong. In these proceedings the appellant has not challenged that finding. As such, Nield AJ was not entitled to make a significant reduction in sentence based upon the appellant’s pleas of guilty.
The question is not whether Nield AJ properly characterised the appellant’s pleas of guilty to those charges where pleas were not entered in the Magistrates Court as not being early pleas. The question is whether he gave an appropriate discount for the pleas as required by s 35. By virtue of s 35(4) he was precluded from making a significant reduction in sentence based upon the appellant’s pleas of guilty due to his finding that the cases against the appellant were overwhelmingly strong. As such it cannot be said that the discount of 10% given by his Honour indicated any error in his Honour’s approach to the pleas of guilty. This ground of appeal must fail. Ground (vi) – Using Information Not Properly Before the Court
An Agreed Statement of Facts was tendered in the sentence proceedings. In the course of his sentencing remarks, Nield AJ supplemented the information in the Agreed Statement of Facts by reference to some material which was apparently contained within a Police Statement of Facts tendered in the Magistrates Court and which presumably found its way onto the Supreme Court file with the rest of the committal papers. At the conclusion of his sentencing remarks, his Honour advised the parties that he had supplemented the information in the Agreed Statement of Facts in this way “to make the recital of the facts more understandable”. The appellant identifies the information used by his Honour in this way as that found, at [30]-[34], of his Honour’s sentencing remarks. The information so identified simply provides an exposition of what occurred after the appellant committed the offences in the ACT, explaining how he came to be arrested and held in custody in New South Wales. The use of this information, which was not properly before his Honour, was undesirable; however there is nothing in his Honour’s sentencing remarks to suggest that his Honour somehow used this information to arrive at the sentences he imposed upon the appellant. To the contrary, his Honour made it very clear that the information was simply used for the purpose of making it the narrative more easily understood. This ground of appeal must also fail. Conclusion
Finally, it should be noted that even if there had been error in his Honour’s approach to totality, to the appellant’s guilty pleas or to the New South Wales material not in evidence before his Honour, the court would not be required to uphold the appeal unless it was also satisfied that some other sentence should be imposed. Having regard to our earlier comments about totality, we would not in this case have found that another sentence was required and accordingly would still have dismissed the appeal.
The appeal must be dismissed.

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