REGINA v DIB [2003] NSWCCA 117

New South Wales Court of Criminal Appeal

CITATION : REGINA v DIB [2003] NSWCCA 117 HEARING DATE(S) : 6 March 2003 JUDGMENT DATE : 27 May 2003

JUDGMENT OF : Hodgson JA at 1; Dowd J at 10; Barr J at 50 DECISION : Leave to appeal be granted; appeal dismissed.

CATCHWORDS : CRIMINAL LAW - Appeal against sentence - Plea of guilty - Utilitarian discount - Relevance of circumstance that plea is to lesser charge than that originally brought. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 Cameron v R (2002) 76 ALJR 382 Lowe v The Queen (1994) 154 CLR 601 R v Atkinson [2001] NSWCCA 135 CASES CITED : R v Farroukh (NSWCCA, unreported, 29 March 1996 R v Gorgievski [2002] NSWCCA 45 R v Lo [2001] NSWCCA 271 R v Thomson and Houlten (2000) 49 NSWLR 383 PARTIES : Mohamed Dib (Applicant) Crown (Respondent) FILE NUMBER(S) : CCA 60026/03 COUNSEL : SJ Odgers SC (Applicant) GIO Rowling (Respondent) SOLICITORS : Galloways (Applicant) SE O'Connor (Respondent)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70006/02 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60026/03

HODGSON JA DOWD J BARR J

Tuesday 27 May 2003 REGINA V. Mohamed DIB Judgment 1 HODGSON JA: I agree with the orders proposed by Dowd J, and generally with his reasons. I also agree with the remarks of Barr J. 2 In the course of his remarks on sentence, the sentencing judge said this: 38 Although there had been mention during the course of the judgment in R v Thomson and Houlton of situations where the late entry of pleas was or may have been influenced by the attitude of the prosecuting authorities - see [20] and [29], no separate consideration was given to that factor. Where the Crown accepts a plea to a lesser charge in full satisfaction of an indictment including a higher charge, a benefit is necessarily conferred on an offender even without any grant by a court of the normal discount for a plea. When one has regard to the rationale for that discount it does not seem to me that the rules or extent of the discount which apply in other situations should necessarily apply. I do not, of course, suggest that the sentence should reflect any component because the offender might have been guilty of the higher charge. I merely suggest that the interests of the courts do not require that the discount be as great or, at times, that it should exist. After all, the primary function of the punishment is to deal with the offender's criminality.