R v Lo [2001] NSWCCA 271

New South Wales Court of Criminal Appeal

CITATION : R v Lo [2001] NSWCCA 271 FILE NUMBER(S) : CCA 60798/00 HEARING DATE(S) : 9 July 2001 JUDGMENT DATE : 13 July 2001

PARTIES : Regina Julian Lo JUDGMENT OF : Simpson J at 1; Sperling J at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0215 LOWER COURT JUDICIAL Naughton DCJ OFFICER :

COUNSEL : P R Boulten for the Applicant P G Berman SC for the Crown SOLICITORS : D J Humphreys for the Applicant S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - sentencing - plea of guilty - whether discount at the bottom of the range erroneous - utilitarian value of plea of guilty not diminished by strength of Crown case CASES CITED: Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 DECISION : (1) Leave to appeal granted; (2) Appeal allowed; (3) Sentence quashed; (4) In lieu thereof, applicant sentenced to imprisonment for five years commencing on 14 June 2000; (5) A non-parole period of three years commencing on 14 June 2000, and expiring on 13 June 2003, that being the earliest date on which the applicant will be eligible to be released on parole.

- 1 -IN THE COURT OF CRIMINAL APPEAL Friday, 13 July 2001

Simpson J Sperling J

60798/00 Julian Lo v Regina

Judgment 1 SIMPSON J: I have read in draft the judgment of Sperling J. I agree with the orders proposed, and generally, with his Honour's reasons. I would merely add this, in order to make explicit the nature of the error in sentencing as I perceive it. 2 The sentencing judge referred to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383, and then said: "In all of the circumstances of this case and bearing in mind that the Crown case was a very strong one and that the plea of guilty has, I find as a fact, little utilitarian value I quantify the value of the plea of guilty at 10 percent." 3 In my opinion the correct interpretation of this passage is that the sentencing judge considered that the strength of the Crown case bore upon the utilitarian value of the plea. That runs counter to an express conclusion stated in Thomson and Houlton. At para 137 Spigelman CJ, with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed, wrote: "In Winchester v The Queen [(1992) 58 A Crim R 345], 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 (c/f R v Beavan [unreported, Court of Criminal Appeal, NSW, 22 August 1991]. 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." 4 The last sentence makes it clear that the sentencing judge should not have approached the question of the quantification of the discount for the plea of guilty on the basis that its utilitarian value was diminished by reason of the strength of the Crown case. The strength of the Crown case was available to aid the evaluation of the applicant's asserted contrition. 5 The applicant was entitled to the maximum benefit of the allowable reduction in sentence attributable to the timing of the entry of the plea; but, by reason of the length of a trial, had it taken place (two or three days) the allowance for that aspect of the utilitarian value of the plea was minimal. However, as promulgated in Thomson and Houlton, the minimum allowance to which an offender would ordinarily expect to receive is 10 percent on the sentence nominated as the starting point. I agree with Sperling J that, by reason of the timing of the applicant's plea alone, he could legitimately have expected something in excess of that. However, as I have said, the estimated length of a trial meant he could not legitimately have expected that his sentence would be reduced by the 25 percent nominated as the upper end of the range in Thomson and Houlton. In my opinion the appropriate reduction in these circumstances was of the order of 15 percent. 6 Accordingly, I agree with the orders proposed by Sperling J. 7 SPERLING J: On 12 February 1999, the applicant turned 18. Over the previous two years, he committed eight robberies in company and other serious property offences. He committed his first serious property crime when he was 15. Mostly, he targeted banks. 8 Having turned 18, the same pattern of behaviour continued. In February 2000, the applicant was convicted of being on enclosed lands without lawful excuse. In April 2000, he was convicted of stealing. For that last offence, he was placed under a community service order. He defaulted. 9 On 14 June 2000, the applicant was by then 19 years of age. The community service order was still current. With two companions, he entered the premises of State Government Employees' Credit Union at Westmead Hospital. He leapt over the counter and demanded money. He and his companions ransacked the premises. In the noise and confusion that followed, the applicant stood over a female employee, terrorising her to such an extent that she became hysterical. Hospital staff intervened, putting their own safety at risk. The offenders fled. The applicant was caught. The offenders had got away with only $4 but that is of little moment. It belies the objective. This was no trifling episode. 10 The applicant was sentenced to imprisonment for five years and 10 months. But for a finding of special circumstances, the non-parole period would have been something over four years. The sentencing judge found special circumstances and fixed a non-parole period of three years. 11 One of the grounds on which the sentence is impugned is that inadequate allowance was made for an early plea of guilty. The applicant maintained his right to silence when apprehended. He pleaded guilty before he would have been committed for trial in the ordinary course. Whether the public expense of preparing a Crown brief had then been incurred or not at that stage is not clear. The case should, however, be classified as involving an early plea of guilty. 12 The trial would not have been long, perhaps two or three days. But the cost of that trial was avoided. The trial judge allowed a 10 percent discount for the utilitarian value of the plea in that regard. 13 In Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Spigelman CJ said at [152] - [154]: "In my opinion, the appropriate range for a discount is from 10-25 per cent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea." 14 In the present case, the plea was early, although the prospective trial was short. An allowance at the very bottom of the range was erroneous in these circumstances. 15 This point alone vitiates the sentencing process. The sentence should be set aside and this Court should resentence the applicant. 16 I did not consider, at the time of writing, that there was a need, in these circumstances, for me to consider other grounds on which the sentence was impugned. However, I have since read Simpson J's proposed judgment. I agree that the appeal should also be allowed on the ground that the sentencing judge misdirected himself concerning the relevance of the strength of the Crown case for the reasons given by Simpson J in that regard. 17 As to resentencing, in Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, this Court promulgated a guideline range of sentences for armed robbery of four to five years. The applicability of the guideline range was made subject to certain conditions. Robbery in company carries the same maximum penalty as armed robbery. It is a comparable offence. 18 The conditions in Henry, set out at [162], included that the offender was young, little or no criminal history, and a late plea of guilty (the latter as explained in Thomson and Houlton at [161]). Thus, Henry contemplated a discount for an early plea on a sentence otherwise fixed under the guidelines promulgated in that case. 19 The condition relating to little or no criminal history is not satisfied in the present case. On the other hand, a discount for the utilitarian value of an early plea has to be made. 20 Deterring others is an important factor in sentencing. That consideration is given less weight in the case of young offenders. However, the importance of deterring others does not cease to be a factor altogether when sentencing young offenders. It continues to be a significant factor where the offence is grave and where there is a history of offending, as in the present case. These principles are well recognised. They apply in every case involving a young offender. The authorities need not be cited here. 21 In the present case, the applicant's criminal history is so grave that I would give little weight to his youth as a mitigating factor. 22 Evidence was given at the sentencing hearing by Ms Elizabeth Kusch, psychologist. His Honour accepted her evidence. This Court should do likewise. She recorded that the applicant used heroin from the age of 15 or so. He had been raised in a dysfunctional family. He had suffered damaging experiences throughout his formative years which had impeded healthy personality development. He was of average intelligence. Notwithstanding that heroin addiction was likely to have been a contributing factor in the offence for which he was convicted, the applicant denied that he had any drug problem. 23 Unfortunately, this is a familiar profile in a prisoner with a history of serious property crimes: personality deficits, drug addiction, raising the money for drugs by criminal behaviour and little insight into the process. There is nothing in Ms Kusch's report which makes the applicant a special case. 24 I would make no allowance for contrition. The applicant's mother gave evidence. She said that the applicant had told her that he was sorry for what he did. He was crying and she believed him. She said she asked him if he was really going to change, and he said, "Yes". The family is Fijian. She asked him if he would like to go to Fiji when he came out of gaol. He said he would, that he would love to get away from his friends and that he wanted to be changed. 25 It does not appear that the sentencing judge gave any weight to this evidence. Nor would I. In cross examination of Ms Lo, it became clear that the applicant did not inform his mother of anything like the true extent of his criminal history. Nor did the applicant give evidence at the sentencing hearing. Ms Kusch's evidence indicated that the applicant had no insight into his own behaviour. 26 Evidence tendered on the appeal shows that the applicant has co-operated well with the prison authorities. He has worked conscientiously. He has applied for entry into the Violence Prevention Program and to see a welfare officer. There has been no adverse report. This conduct is commendable but it falls short of evidence that the applicant is contrite. 27 I would attribute no such motivation to the plea of guilty. The strength of the Crown case is sufficient explanation for that. The early plea has a utilitarian value but that is all. 28 In re-sentencing the applicant I would begin with a head sentence of six years imprisonment. This includes some allowance for the applicant's youth. I would reduce that by approximately 15 percent to five years for the early plea. 29 The non-parole period must not be less than three quarters of the sentence, absent special circumstances. That would, provisionally, be a minimum non-parole period of three years and nine months. 30 The sentencing judge found special circumstances, particularly because of the need for an extensive period of supervised rehabilitation on the applicant's release from prison. I agree with that approach and would also find special circumstances for that reason. I would not, however, reduce the non-parole period to the same extent as was done by the sentencing judge. 31 The applicant has been in custody since 14 June 2000. 32 I would propose the following orders: