Regina v Carter [2001] NSWCCA 245

New South Wales Court of Criminal Appeal

CITATION : Regina v Carter [2001] NSWCCA 245 FILE NUMBER(S) : CCA 60693/00 HEARING DATE(S) : 27/06/01 JUDGMENT DATE : 27 June 2001

PARTIES : Regina v Kristen Carter JUDGMENT OF : Barr J at 24; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/06437 LOWER COURT JUDICIAL Nash ADCJ OFFICER :

COUNSEL : M.C. Grogan - Crown C.B. Craigie - Applicant SOLICITORS : S.E. O'Connor - Crown D.J. Humphreys - Applicant CATCHWORDS : Sentence - discount for plea of guilty - totality - application of Pearce v The Queen LEGISLATION CITED : Crimes Act 1900 - s 112 Justices Act 1902 - s 51A R v Thompson and Houlton (2000) 49 NSWLR 383 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Veen v The Queen (No. 2) (1988) 164 CLR 465 DECISION : See para 23

IN THE COURT OF CRIMINAL APPEAL

60693/00

BARR J HOWIE J

WEDNESDAY 27 June 2001 REGINA v KRISTEN CARTER JUDGMENT 1 HOWIE J: The applicant seeks leave to appeal against the sentences imposed upon him by Acting Judge Nash at the District Court in Sydney on 20 October 2000 following his plea of guilty to an indictment containing two counts of break enter and steal contrary to s 112 of the Crimes Act. The applicant had previously pleaded guilty to those matters before a magistrate and was committed for sentence under s 51A of the Justices Act. However, owing to a defect in the s 51A document, an indictment was presented to the District Court and the applicant pleaded guilty on arraignment. The offences each carried a maximum penalty of 14 years imprisonment. 2 In relation to the second count on the indictment His Honour sentenced the applicant to a sentence of 5 years imprisonment with a non-parole period of 3 years dating from 20 May 2000. The non-parole period is to expire on 19 May 2003. With respect to the first count His Honour sentenced the applicant to a fixed term of 2 years and 7 months imprisonment that was also to date from 20 May 2000. 3 The first offence occurred on the afternoon of 5 May 2000 at residential premises in Glebe. The applicant succeeded in jemmying the grill away from a front ground floor window and opened the unlocked window. The applicant then proceeded to remove various items from the house, including a video player, an answering machine, numerous music CDs and a gold chain. He made good his escape through the same window. 4 The second offence occurred on 20 May 2000 in Paddington. The applicant and a co-offender entered a dwelling house by breaking the glass of the rear door and making use of a key that was hanging by the door. Both side glass doors were smashed and the back balcony rail was broken. The front bedroom was ransacked and drawers in various rooms opened. The owner of the premises, when returning home, happened upon the pair while they were still engaged in the offence. They both fled the house with the owner in pursuit. The applicant's co-offender punched the owner, but the two were eventually detained with the aid of bystanders. The applicant was in possession of a backpack, which he claimed belonged to him, but which had in fact been removed from the premises. It contained various items removed from the house including a camera and a walkman stereo. The co-offender had a gold bracelet that had also been removed from the house. 5 The applicant was arrested and released on bail. Subsequent tests revealed his fingerprints in the premises where the offence of 5 May had been committed. He was arrested again on 12 June 2000, in relation to another offence, and declined to participate in an electronically recorded interview. He remained in custody thereafter. 6 The applicant was born on 21 August 1973 and was, therefore, twenty-seven years of age at the time of sentence. He enjoyed a stable upbringing until his parents separated when he was fifteen years old. The applicant then moved to Queensland to live with his father for a period, before returning to reside with his mother in Sydney. From the age of twenty-two he was living on the streets, residing in halfway houses or being held in custody. 7 The applicant began using cannabis when he was fourteen, and then amphetamines for several years before he started using heroin in his early twenties. The applicant's longest period of employment was from 1994 to 1996 when he was working full time with a removalist company. He has been continuously unemployed since 1997. It appears that all of the offences that have been committed by the applicant were for the purpose of financing his heroin addiction. 8 The applicant has been in and out of prison for various offences since 1997. He was released to parole on 5 February 1998 after serving a sentence for break enter and steal. This parole was revoked on 4 March 1998 after the applicant committed other offences including a break enter and steal, unlawfully obtaining goods and receiving. The applicant was sentenced to a further minimum term of two years. 9 He was released again to parole on 31 March 2000, however this parole was revoked on 18 May 2000 when he ceased contact with the Probation and Parole Service. It seems that after the applicant was released on parole he took up residence in a halfway house where he met other individuals who had also been released from prison. Under their influence he was unable to avoid sliding back into his old drug habits and began to use heroin once more. The applicant, of course, was on parole at the time of the commission of the offences the subject of this appeal. 10 In his remarks on sentence Acting Judge Nash noted that the applicant had been seeing drug and alcohol counsellors during his time in prison and that he had applied to attend an alcohol and drug rehabilitation centre. He commented on the applicant's improved prospects of rehabilitation from the last time he was before a court and the benefit that the applicant would receive from a longer than usual period of supervision. 11 The material which has been placed before this Court today, in the event that the applicant might need to be re-sentenced by this Court, indicates that the prospects of rehabilitation are continuing and that the applicant has fulfilled the assessment made by Judge Nash that there was a purpose to be served in promoting his rehabilitation. 12 The first ground of appeal is that his Honour erred in giving the applicant the benefit of a reduction of only 15 per cent for his early pleas of guilty. His Honour did not indicate why it was that he chose 15 per cent as the appropriate discount notwithstanding that the applicant had pleaded guilty before the magistrate. But it can reasonably be inferred from what his Honour said in relation to the discount, that he took into account the strength of the Crown case against the applicant. 13 Unfortunately, it is apparent from two appeals before the Court today arising from sentences imposed by different judges, that there is a misunderstanding by some members of the District Court of the decision in R v Thompson and Houlton (2000) 49 NSWLR 383 and the basis upon which the discount for the utilitarian benefit of a plea of guilty is assessed. There is a view held by some judges that in determining the quantum of such a discount a relevant consideration is the strength of the Crown case. It is not. That is a factor that is relevant to a consideration of whether the plea of guilty shows contrition and whether any discount over and above that for the utilitarian benefit of the plea should be allowed. 14 It is perfectly clear from the reasons of the Chief Justice in the guideline judgment, with whom all other members of the Court agree, that, although the evaluation of the discount is a matter for the discretion of the sentencing judge, that are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may, according to the Chief Justice, exceed the normal upper range of 25 per cent. 15 Further, it was also made perfectly clear that the strength of the Crown case is not a relevant factor in assessing the purely utilitarian value of the plea. The Chief Justice stated at 137: "Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564. In Winchester v The Queen , Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): "… The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable." In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea." 16 It was, therefore, erroneous for his Honour, when determining the utilitarian value of the pleas before the magistrate, to consider the fact that the case against the applicant on both charges was very strong. Thus the exercise of the discretion miscarried. There is no reason why the applicant should not receive the full benefit of his early pleas. 17 The other grounds of appeal can be dealt with together in light of the view I take of this first ground. It is submitted in effect that the sentence imposed was manifestly excessive for two reasons: firstly his Honour failed to give sufficient weight to the fact that the applicant had given assistance to gaol authorities and that, as a result, he would spend his sentence in a more difficult environment and, secondly, his Honour erred in the manner in which he derived the total term of the sentence and, as a consequence, it was manifestly excessive. 18 As to the first matter, Acting Judge Nash noted that, whilst the applicant was on remand, he was approached by inmates to receive drugs from a visitor and then pass the drugs on to these inmates. The applicant declined to do so, and informed prison authorities of the request. His Honour accepted that as a consequence, the applicant was placed into protective custody and would, therefore, serve longer locked in his cell of a day than the general prison population and would be deprived of benefits and privileges he might otherwise have enjoyed. His Honour specifically took this matter into account when finding special circumstances in fixing the non-parole period. There is no error shown in what his Honour said in the remarks on sentence and, therefore, error, if there is any can, only be inferred if the sentence is found to be manifestly excessive. 19 However, the contention that his Honour erred in the manner in which he determined the overall sentenced is well founded. What his Honour did was this: he first determined the appropriate sentence for each offence having applied the discount for the plea of guilty. He assessed the criminality of the first count as 3 years and then deducted 15 per cent to arrive at a sentence of 2 years and 7 months for that offence. Next he determined that the sentence appropriate for the second count was 4 years less 15 per cent, which gave 3 years and 5 months. His Honour then added both sentences together because they were different acts of criminality, giving a total sentence of 6 years. He then deducted 12 months on the basis of the principle of totality, which gave a term of imprisonment of 5 years, which he then imposed for the second count. He set a non-parole period of 3 years in respect of that term. His Honour then imposed a concurrent sentence of 2 years 7 months for the first count as a fixed term. 20 The method by which his Honour determined the sentences for these two offences is inconsistent with what was said by the High Court in Pearce v The Queen (1998) 194 CLR 610 as to the manner in which sentences for more than one offence should be imposed and what has been said on numerous occasions by this Court in applying the High Court's dictates. What his Honour did was to impose what he believed to be the appropriate sentence to reflect the totality of the criminality for the two offences on the second count, even though he had already determined that the appropriate sentence for that offence alone was substantially less than that which he imposed. This is contrary to the High Court's directive that a sentencing judge should impose the appropriate sentence for each offence and then address the question of totality by making an order for cumulative or concurrent sentences. 21 Further, the two offences, although different acts of criminality, were part of the same course of conduct in that they were similar offences, occurred within a period of about two weeks and were a result of the same set of circumstances, being the applicant's drug addiction. It was not as if the applicant had been arrested for one offence and then committed the other while on bail. There was, in my view, nothing to warrant the accumulation of the punishment for each offence. This was a simple case in which the overall criminality could easily be accommodated in the penalty appropriate for the second offence, taking into account that it was committed while on parole, it had other aggravating features and was not an isolated act of criminality. 22 In my view the sentence for the second count is manifestly excessive and there must be a re-sentencing of the applicant. However, the applicant has to receive a significant sentence because these offences were simply part of a continuing disobedience of the law and both general and specific deterrence were necessary; Veen v The Queen (No 2) (1998) 164 CLR 465 at 477. The applicant was entitled to some moderate discount by reason of assistance and the more difficult prison conditions over and above the utilitarian discount for the pleas of guilty of 25 per cent. There are clearly special circumstances as found by the sentencing judge. 23 I propose that the application for leave to appeal be granted, and the appeal allowed. The sentences imposed by Acting Judge Nash should be quashed. In lieu the applicant should be sentenced on the first count to a fixed term of 2 years to date from 20 May 2000 and to expire on 19 May 2002. I have imposed a fixed term by reason of the sentence I am next about to impose. On the second count the applicant is sentenced to 4 years imprisonment with a non-parole period of 2 years and 3 months. The sentence should date from 20 May 2000 and the applicant is eligible for release to parole on 19 August 2002. 24 BARR J: I agree. The orders of the court are as proposed by Howie J. ************