New South Wales Court of Criminal Appeal CITATION : R v Daley [2003] NSWCCA 109 HEARING DATE(S) : 2 April 2003 JUDGMENT DATE : 28 April 2003 JUDGMENT OF : Spigelman CJ at 1; Dunford J at 2; Hidden J at 22 DECISION : Leave to appeal granted, appeal dismissed. CATCHWORDS : CRIMINAL LAW - sentencing - multiple counts of aggravated sexual assault - pleas of guilty after lengthy voir dire - application to withdraw pleas - challenge to evidence on sentence - utilitarian value of guilty pleas - willingness to facilitate the course of justice - no discount for pleas of guilty - whether less severe sentence warranted. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss 22(1), 24 Criminal Appeal Act 1912, s 6 (3) Cameron v The Queen [2002] HCA 6, 76 ALJR 382 CASES CITED : R v Sharma [2002] NSWCCA 142, 54 NSWLR 300 R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 PARTIES : Anthony James Daley (Applicant) FILE NUMBER(S) : CCA 60233/02 COUNSEL : RJ Button (Applicant) DML Woodburne (Respondent / Crown) SOLICITORS : DJ Humphreys (Applicant) SE O'Connor (Respondent / Crown) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70001/01 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60233/02 SPIGELMAN CJ DUNFORD J HIDDEN J Monday, 28 APRIL 2003 R v Anthony James DALEY Judgment 1 SPIGELMAN: I agree with Dunford J. 2 DUNFORD J: This is an application by Anthony James Daley for leave to appeal against the sentences imposed on him by Simpson J on 26 April 2002 following pleas of guilty to two counts of aggravated sexual assault, two counts of armed robbery and two counts of detain for advantage. In addition, the applicant asked that her Honour take into account pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 a number of further offences namely, four counts of aggravated sexual assault, one count of attempted aggravated sexual assault, five counts of armed robbery, two counts of detain for advantage, and one count of indecent assault. 3 The total effective sentences imposed amounted to imprisonment for 22 years with an effective non-parole period of 16½ years. For present purposes it is not necessary to detail the manner in which the sentences were distributed amongst the various counts, except to say that the matters on the Form 1 were taken into account in sentencing on count 4 (aggravated sexual intercourse) in respect of which her Honour sentenced the applicant to imprisonment for a term of 18 years with a non-parole period which was later revised to 12½ years. 4 The only ground of appeal relied on is that the learned sentencing judge was wrong in finding that, in the circumstances, there should be no discount for the utilitarian value of the pleas of guilty. 5 The history of the proceedings and her Honour's reasons for not reducing the sentence on account of the utilitarian value of the pleas were set out in paras [42]-[45] and [50] of her Honour's Remarks on Sentence: [42] "In the ordinary course, an offender who pleaded guilty to an indictment would be entitled to expect a significant reduction in sentence in recognition of his decision to enter such a plea (see Sentencing Procedure Act , s22). There are a number of rationales advanced for this. They include that the plea of guilty signifies an acceptance of responsibility and a willingness to facilitate the course of justice ( Cameron v R [2002] HCA 6; unreported, 14 February 2002); that the victims have been spared the ordeal of recounting, in a public forum, their experiences of sexual assault; and that the plea of guilty may be some evidence of contrition. Neither the first nor the third of these considerations here exists. [43] The offender entered his pleas of guilty at a very late stage, and only after challenging the admissibility of almost the whole of the Crown case, in a voir dire that was conducted over a two week period. A number of the victims were required to give evidence, generally relating to their identification of the offender or of clothing or other items associated with the attacks. True, they were not required to give detailed evidence of the assaults upon them, but they were subjected to cross examination and they lived with the expectation that they would be required to give, in open court, and in the presence of the offender, intimate details of their ordeals - ordeals they have, no doubt, been endeavouring to put to the back of their minds. [44] Finally, the offender's willingness to facilitate the course of justice, as evidenced by the pleas, was short lived indeed. The pleas were entered on 24 May 2001. Sentencing submissions were scheduled for hearing on 23 July 2001. On that day the offender appeared unrepresented, having terminated the instructions of his legal representatives. At that time he claimed to have been pressured into pleading guilty to crimes he had not committed, and sought adjournment of the proceedings to enable him to obtain alternative representation. He was granted that adjournment. The following week, he having obtained alternative representation, I was informed that the offender proposed to apply to withdraw the pleas of guilty. A Notice of Motion to that effect was filed on 15 October 2001. In support of the application, the offender gave oral evidence, during the course of which he repeatedly denied his involvement in the offences. By judgment dated 6 February 2002 I refused the application. The offender has, nevertheless, maintained his position to the present day. Further, in order to found a challenge to the strength of the Crown case, and relevant to the weight to be given to the pleas of guilty on sentence, the offender required the attendance of three witnesses involved in the obtaining and analysis of DNA evidence. In my opinion, that evidence only reinforced the view I had already expressed, when refusing leave to withdraw the pleas, that the Crown case against him was very strong. The offender, therefore, obtains no benefit on sentence by reason of having pleaded guilty to a Crown case which had only slim prospects of succeeding. [45] The offender was well within his rights in taking each of these steps, and his punishment is not to be increased because of his having done so. The history I have outlined is relevant only as throwing light on the extent to which the offender has demonstrated a willingness to facilitate the course of justice, an acceptance of responsibility, and the presence or absence of remorse or contrition. I conclude that the offender has failed to show that his pleas of guilty entitle him to any reduction in sentence on any of these bases. … [50] Counsel for the offender argued that, notwithstanding some acknowledged difficulties, the offender is entitled to credit for the utilitarian value of the pleas of guilty. For the reasons I have given, I reject that argument." 6 Section 22(1) of the Crimes (Sentencing Procedure) Act 1999 provides as follows: In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. 7 It is to be noted that whilst the Court "must" take into account the fact of plea and when such plea was entered, it "may" impose a lesser penalty, clearly indicating that the Act does not require a lesser penalty in all cases in which there has been a plea. 8 In the guideline judgment of R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 this Court said (at [160]) that sentencing judges should explicitly state that a plea of guilty has been taken into account, that the amount of the reduction on account of the plea should be quantified, which may encompass all matters to which the plea is relevant including contrition, witness vulnerability and its utilitarian value, (including where relevant, assistance to the authorities); and that the utilitarian value of the plea should generally be assessed in the range of 20 to 25% on sentence, the primary consideration being the timing of the plea. 9 The Court also said (at [156]-[158]) that particular complexity or trial duration may justify a higher discount whilst in some cases no discount is appropriate at all, including cases where the protection of the public requires a long sentence be imposed or crimes which so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate, notwithstanding the plea, including cases in which a life sentence can be and is imposed. 10 Subsequently in Cameron v The Queen [2002] HCA 6, 76 ALJR 382 (judgment delivered 14 February 2002), the High Court on an appeal from Western Australia, held that the ratio for mitigation of sentence on account of a plea of guilty was the subjective matters revealed by the plea namely remorse (contrition), acceptance of responsibility, and a willingness to facilitate the course of justice, and rejected the view that the mitigation of the sentence was on the utilitarian basis that the plea had saved the community the expense of a contested hearing. 11 When her Honour came to sentence the applicant on 26 April 2002 she did so on the principles enunciated in Cameron. However, in the meantime (actually two days earlier on 24 April 2002), this Court in R v Sharma [2002] NSWCCA 142, 54 NSWLR 300, in another guideline judgment held that, having regard to the express words of s 22 of the Crimes (Sentencing Procedure) Act, and also having regard to the Second Reading Speech for the amendments which introduced the precursor of s 22 (namely s 439) into the Crimes Act 1900, the reasoning in Cameron was not applicable to this State, and that R v Thomson should continue to be followed, thereby restoring the utilitarian value of the plea of guilty as the relevant consideration to the discount to be allowed on account of such plea. 12 It follows that, because of the proximity of the dates of these two last mentioned judgments, her Honour proceeded on a wrong principle in determining whether any discount should be allowed in respect of the pleas, holding as she did that the pleas did not demonstrate any remorse, contrition, or acceptance of responsibility, and did not signify a willingness to facilitate the course of justice, as they were only entered after lengthy voir dires, when in practical terms, all other avenues of defending the case were closed to the appellant, they were followed by an application to reverse such pleas and the DNA evidence was challenged on the sentencing hearing. 13 There was also a factual error in her Honour's Remarks on Sentence in that, whereas she said that a number of victims were required to give evidence on the voir dire, in fact only one victim was required whilst another was required to give evidence on the sentencing proceedings in relation to the conduct of the applicant at court. But in my view this error of fact is of only minimal significance to the utilitarian value of the pleas because all the victims lived with the expectation that they might be required to give evidence and that remained the situation beyond the date of the entry of the pleas because of the application to withdraw such pleas and the subsequent application for leave to appeal against the refusal of that application (subsequently abandoned). 14 Generally speaking, matters which are relevant to a willingness of an accused to facilitate the course of justice will be the same as those relevant to the utilitarian value of the plea; but this will not necessarily always be the case. In this case a number of matters, including the history of the case, the lengthy voir dires, the late entry of the pleas, the subsequent adjournment, followed by the application to withdraw the pleas involving the calling of counsel and solicitor who had previously appeared, the appeal against such ruling, and the challenge on sentence to the DNA evidence were all matters relevant both to a willingness to facilitate the interests of justice and also to the utilitarian value of the pleas. 15 However, beyond all this there was some, although minimal, utilitarian value in the pleas in the saving of court time and the avoidance of the necessity for the attendance of a jury; and notwithstanding their justifiable apprehension, the victims were ultimately not required to give evidence concerning the intimate details of the assaults upon them. On the other hand, by the time the pleas were entered, the Crown case had been compiled, the case had been prepared for trial, the Crown case on the issues of tendency and coincidence evidence, DNA evidence and identification evidence had been vigorously tested and argued on the voir dires, which involved witnesses being called to give evidence. 16 Notwithstanding the learned sentencing judge's error, s 6(3) of the Criminal Appeal Act 1912 requires this Court to dismiss the appeal unless it is satisfied that some other sentence, whether more or less severe is warranted in law and should have been passed. As observed in R v Thomson there are and will be cases in which, notwithstanding pleas of guilty, no discount is appropriate, including cases where the protection of the public requires a long sentence to be imposed. There will also be cases where the utilitarian value of the plea is so slight as to justify no discount. 17 In my opinion in this case, the minimal utilitarian value of the pleas, followed by the application to withdraw them, and the multiple series of offences extending over a period of almost two years some of which were committed whilst on parole for a previous offence (break enter and steal), a factor not adverted to by her Honour, the use of a knife or similar instrument on five out of the seven victims, and the threat to kill one of them, all render this to be such a case; and that no less severe sentence is warranted in law. 18 So far I have not referred to the additional affidavit evidence that was filed in Court at the hearing, and I consider there is much to be said for the view that, notwithstanding that error has been shown, it is only after the Court has taken s 6(3) into account and concludes that some other sentence should be imposed that regard should be had to such additional material. But, it is not necessary to finally resolve this issue because, having taken the additional material into account, I am not persuaded that it is such as to affect what I otherwise regard as the appropriate sentence for these very serious matters. 19 The matters described by the applicant in paragraphs 4 to 8 of his affidavit and similar matters described in the other affidavit, may in part explain the applicant's conduct, but they cannot excuse it, particularly the attacks on strangers, or the threats and use of knives. 20 I do not regard the applicant's outburst in court on 26 April 2002 as relevant to the appropriate sentence and neither apparently did her Honour. 21 For these reasons, I would grant leave to appeal, but dismiss the appeal. 22 HIDDEN J: I have read in draft the judgment of Dunford J but, after anxious consideration, I find that I am unable to agree with it. Notwithstanding the sorry history of the proceedings, the fact remains that the applicant's pleas of guilty averted a lengthy trial in which each of the complainants would have to have given evidence of a distressing nature. The applicant was entitled to some, admittedly limited, benefit for the utilitarian value of those pleas. 23 On that basis alone I am satisfied, for the purpose of s 6(3) of the Criminal Appeal Act, that a somewhat lesser sentence is warranted. Like Dunford J, I find it unnecessary to express any concluded view about whether the fresh material before this Court should be taken into account for the purpose of the determination required by that subsection. That material is unchallenged, but its significance is difficult to assess and not much weight can be given to it for the purpose of re-sentence. I would be prepared to see it as a partial explanation for the applicant's conduct and as indicative of a nascent insight into the seriousness of his crimes. It might also be seen as the first step in a long path towards rehabilitation. 24 I would reduce the sentence on count 4 to imprisonment for 16 years with a non-parole period of 11 years. This would result in a total effective sentence of 20 years with a non-parole period of 15 years. ********** Last Modified: 05/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.