Woodland v R

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mary Lee Woodland, pleaded guilty and was sentenced in the Drug Court for an offence of take and drive a conveyance without consent and two offences of drive motor vehicle while disqualified. The appellant received an initial aggregate sentence of 1 year and 9 months imprisonment, which was suspended to enable her to participate in the Drug Court program. The appellant's program was terminated as a result of repeated non-compliance, and the appellant appeared for her final sentence, where the initial sentence was confirmed, and a non-parole period of 1 year was imposed. The appellant advanced three grounds: first, that the sentencing judge/s failed to take into account the appellant's early pleas of guilty, or alternatively failed to explain in the remarks on sentence how the guilty pleas were accounted for; second, that the sentencing judge/s took into account an irrelevant consideration when assessing the objective seriousness of the take and drive conveyance without consent offence; and third, that the aggregate sentence imposed was manifestly excessive. The Court (Dhanji J with Beech Jones CJ at CL and Chen J agreeing) held, granting the appeal, quashing the appellant's sentence, and resentencing the appellant: As to ground 1: Per Dhanji J (Chen J agreeing; Beech-Jones CJ at CL agreeing as to the principles but disagreeing as to the conclusion): 1. The question is whether the Court is "affirmatively satisfied that the [appellant's] plea was taken into account and an appropriate discount allowed": at [43]; (Beech-Jones CJ at CL agreeing at [2]). Lee, Matthew v R [2016] NSWCCA 146 at [37], applied, Borri v R [2023] NSWCCA 166 at [36]-[45]; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14], considered. 1. Subjective assessments about the degree of experience of the sentencing judge are irrelevant: at [49]; (Beech-Jones CJ at CL, agreeing at [2]). Per Dhanji J (Chen J agreeing, Beech-Jones CJ at CL contra): 1. Given the significance of the discounting of a sentence for the utilitarian value of a plea of guilty as a distinct second step in the process of sentencing, and in the absence of any reference to the fact of the plea of guilty, its timing, or its significance, the Court cannot exclude the possibility that, even if it was taken into account in some way, it was not properly taken into account: at [51]. Per Beech-Jones CJ at CL: 1. Given that the entry of a plea of guilty is a condition of entry into the Drug Court program, and the indicative sentences that were proposed, it was a common assumption of the sentencing proceedings and judgment that the appellant would be receiving a 25% discount on account of her plea of guilty: at [2]. As to ground 2: Per Dhanji J (Beech-Jones CJ at CL and Chen J agreeing): 1. Error was established by the sentencing judge sentencing the appellant on the basis that the vehicle had not been recovered, in circumstances where her Honour had earlier accepted that there was no evidence as to whether the vehicle had been recovered or not: at [54]. As to ground 3: Per Dhanji J (Beech-Jones CJ at CL and Chen J agreeing): 1. As error was established, it was not necessary to address whether the aggregate sentence was manifestly excessive: at [55]. As to the admission of further evidence on resentence: Per Dhanji J (Chen J agreeing; Beech-Jones CJ at CL contra): 1. In the present context, the power to admit evidence on resentence for an appeal under s 5AA of the Criminal Appeal Act 1912 (NSW) should operate in a manner similar to that which occurs in an appeal pursuant to s 5(1) of the Criminal Appeal Act 1912: at [63]. Per Beech-Jones CJ at CL: 1. It is not necessary to decide whether further evidence can be admitted on an appeal such as this if error in the sentencing process at first instance is established: at [3].