New South Wales Court of Criminal Appeal CITATION : R v G J Davies [2004] NSWCCA 319 HEARING DATE(S) : 16/09/04 JUDGMENT DATE : 21 September 2004 JUDGMENT OF : Wood CJ at CL at 1; Kirby J at 8; Buddin J at 40 DECISION : (1) Leave to file an appeal out of time granted; (2) Leave to appeal granted; (3) Appeal dismissed. CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error in Court taking account strength Crown case in fixing discount for plea - standard non parole period - whether Court should intervene - whether more lenient sentence warranted. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 R v Mouloudi [2004] NSWCCA 96 R v Way [2004] NSWCCA 131 R v Carter [2001] NSWCCA 245 CASES CITED : R v Thomson and Houlton (2000) 49 NSWLR 383 R v Sutton [2004] NSWCCA 225 R v Boulghourgian (2001) 125 A Crim R 540 R v Simpson (2001) 53 NSWLR 704 PARTIES : Regina Glenn John Davies FILE NUMBER(S) : CCA 60246/04 (2004/1868 CCAP) COUNSEL : B Knox SC (Crown/Resp) P Strickland (Appl) SOLICITORS : S Kavanagh (Crown/Resp) S E O'Connor (Appl) LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0197 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1868 CCAP (60246/04) WOOD CJ at CL KIRBY J BUDDIN J Tuesday 21 September 2004 REGINA v Glenn John DAVIES Judgment 1 WOOD CJ at CL: I have read in draft the reasons of Justice Kirby. I agree with those reasons and with the orders proposed. 2 In so far as it was argued that s54B of the Crimes (Sentencing Procedure) Act has no application to a case in which there was a plea and that the decision in Regina v Mouloudi [2004] NSWCCA 96 provides support for that proposition, then I wish to express my disagreement with it. 3 It may be noted that the manner in which s54B was to be applied was the subject of consideration in Regina v Way [2004] NSWCCA 131. Specifically in relation to sentences imposed after plea, the Court observed: "68 Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial . This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor. 69 If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period . It would, in any event, be contrary to long-standing sentencing practice, save in exceptional circumstances, for there to be no differentiation in the setting of a non-parole period, between matters resolved by plea, and at trial. 70 The judgments in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300 indicate that a deduction in the range of 10 to 25 percent would be appropriate as a general guideline, for the utilitarian value of a plea, depending on its timing. It is true that there is no presumption in favour of, or entitlement to, any specific discount ( R v Scott [2003] NSWCCA 286, and there are cases involving such enormity that no discount will be extended: for example R v Kalache (2000) 111 A Crim R 152. 71 Notwithstanding, a plea will, in most instances, have a utilitarian value such as to attract some level of discount. Absent the specification of separate standard non-parole periods, we are of the view that the periods specified in the Table should be understood as having been specified for sentences imposed for midrange cases after conviction at trial . We do not understand the Crown to be contending for the contrary." 4 Subsequently the Court observed: "117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" 118 That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). 119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. 120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act . 122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost , along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount . 123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range." (Emphasis added). 5 In Regina v Mouloudi, Bergin J with whom Simpson and Sperling JJ agreed said (at para 62): "62 The first step in re-sentencing the respondent is the fixing of a non-parole period. Both offences were in my view far more serious than an offence in the middle of the range of objective seriousness. Although the standard non-parole period does not apply in this case because the respondent was convicted after a plea rather than after a trial, the appellant submitted that it is convenient to ask the question posed in R v Way at par [117] namely "are there reasons for not imposing the standard non-parole period"? It seems to me that in sentencing after a plea the Court may have regard to the standard non-parole period applicable after conviction but it must be remembered that the discretion in fixing a non-parole period after a plea is unfettered. " (Emphasis added). 6 I do not understand her Honour to have intended, by the concluding reminder "that the discretion in fixing a non-parole period after a plea is unfettered", to suggest that s54B had no application, and was to be ignored in a case where the sentencing followed a plea. To the contrary, it is clear that she recognised, in accordance with para 122 of the judgment in Way, that, in such a case, the standard non-parole period specified in s54B is still to take its place as a reference point. It performs that function in so far as it specifies the standard non-parole period for a mid range case determined after trial, before any necessary adjustment which might be made in accordance with the section. 7 Otherwise the discretion which attaches to sentencing, remains to be exercised in accordance with the principles in Way. To the extent that adjustment may properly be made in accordance with those principles, then it is correct that the traditional sentencing discretion continues. I do not understand the passage in Mouloudi to have gone any further, let alone to have suggested that the sentencing discretion in such a case is entirely at large. Any such proposition would be contrary to principle. 8 KIRBY J: Glenn John Davies (the applicant) filed a late notice in which he seeks leave to appeal against a sentence imposed by Christie DCJ on 13 August 2003. Mr Davies was one of three offenders who pleaded guilty to two counts, namely: Count 1 : Aggravated break and enter and commit a serious indictable offence, namely, assault occasioning actual bodily harm whilst in company (contrary to s112(2) Crimes Act 1900) (maximum penalty: imprisonment for 20 years). Count 2 : Malicious damage to property (contrary to s195(a) Crimes Act 1900) (maximum penalty: imprisonment for 5 years). 9 His Honour sentenced Mr Davies as follows: Count 1 : To imprisonment for 4 years 9 months, with a non parole period of 3 years 3 months to expire on 30 June 2006. Count 2 : A concurrent fixed term of imprisonment for 6 months. 10 Before dealing with the submissions made on behalf of Mr Davies, I should describe the circumstances in which the offences were committed. The offences. 11 On 1 April 2003, Mr Davies spent part of his day drinking with two companions, William Marsh and Brian Marsh, who were father and son. Mr Davies was then aged 40 years. William Marsh was about the same age. His son was 19 years. Mr Davies had a defacto wife, Kate. The three men apparently decided that a particular woman, known to each of them, was responsible for a missing credit card belonging to Kate. The card had been used to withdraw money from her account. 12 Mr Davies and his companions determined that they would seek retribution. They went to the woman's home at about 5.00 pm. Each was armed with a weapon. Mr Davies had a block of wood. His companions had a baseball bat and a cricket bat. 13 The woman was at home with her nine year old son and a boarder, a young man aged 17 years. Suddenly she heard the sound of breaking glass. The lounge room window had been smashed. She rushed to the front door and was confronted by the three men who entered the house. 14 It was asserted by Mr Marsh Snr, speaking from the floor of the Court during the sentencing process, that the intention was to smash this woman's property. Whether that be right or wrong, the three quickly resorted to violence against the woman herself. They also smashed her property. Meanwhile the child and the young man fled. The woman was struck across her forehead. She began bleeding profusely. She retreated up the hallway. 15 The three, including Mr Davies, followed her. They demanded to know what she had done with "Katie's card". The woman denied any wrongdoing. She said that she was then repeatedly struck by the three men, using their weapons. Again she retreated, this time to the kitchen. As she was pursued, her assailants used their weapons to smash the stereo and a number of windows in the kitchen. 16 Once in the kitchen, the woman said the small refrigerator was knocked over. It "ended up on top of her", that is, she was struck by it as it fell. Again all three started punching her. She was dragged out of the house onto the front lawn. 17 The cricket bat had, by this time, splintered. Mr Marsh Jnr, according to the victim, then used the point of one fragment to interrogate her about what had happened to the money. Eventually his father pulled him back. The woman broke away and ran back inside her home. 18 The three men then left. By this time neighbours had summoned the police and an ambulance. The police approached Mr Davies and Mr Marsh Snr in a nearby street. They were arrested. Mr Marsh Jnr was arrested shortly thereafter. 19 The material before the sentencing Judge included statements from the police officers who attended the house in response to the emergency call. They saw a number of pools of blood. Windows had been smashed and the stereo had been damaged. There were smashed CDs strewn on the floor. The police saw pieces of broken baseball bat and cricket bat, which they took into their possession as exhibits. The refrigerator was on its side. There were blood smears on the bedroom door. 20 The victim was photographed. She had a number of bruises to her back and side. They were black and extensive. She received a wound to the head, near the bridge of her nose. She required three sutures inserted at the local hospital. Her left wrist was both bruised and swollen. The subjective case of the applicant. 21 Mr Davies did not give evidence on sentence. He was not seen by the Probation and Parole Service. No other material was tendered describing his background, apart from his antecedents. He was born on 3 September 1962. Before 1998 he had no criminal record, apart from a conviction for being unlawfully on premises in 1987, for which he was fined, and various driving offences. The driving offences, perhaps significantly, included offences for driving whilst under the influence of alcohol (two offences in 1983 and two offences in 1994). On each occasion he was fined and disqualified. One of the offences involved a "high range PCA". 22 In 1998 Mr Davies was convicted of common assault. He was placed upon a recognisance for two years. On 22 July 2002 he was convicted of assault occasioning actual bodily harm. He was ordered to perform 200 hours community service. At the same time he was convicted of having contravened an apprehended violence order. He was placed upon a s9 bond for twelve months, requiring the supervision of the Probation and Parole Service. The bond was current at the time of these offences. The grounds of appeal. 23 The applicant relied upon a single ground of appeal, that his Honour, in identifying the appropriate discount for the plea of guilty, had erred, in that he had taken into account the strength of the Crown case. His Honour, in his remarks on sentence, said this: (ROS 8) "The plea of guilty, if I did not mention it, has a utilitarian value to the community in so much as it saves the witnesses having to come here, it saves the cost of a trial and all the usual utilitarian things that flow from a plea of guilty, and this plea was entered, as I say, at the earliest opportunity, and probably entitles the prisoners, even having regard to the strength of the Crown case, probably entitles them to a discount of something between 15 and 20%. A full discount would be about 25%, but in the face of the strength of this Crown case I'm not sure that it is completely applicable here." (emphases in applicant's submissions) 24 The strength of the Crown case was not a relevant consideration (R v Carter [2001] NSWCCA 245, paras 13-15). In R v Thomson and Houlton (2000) 49 NSWLR 383, Spigelman CJ said this: (at 419) "The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 25 The Crown acknowledged the error. Indeed, it was a common error, as Howie J recently lamented in R v Sutton [2004] NSWCCA 225, when he said this: (para 12) "[12] This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence. The following are but some of the decisions on this point in the four years since Thomson and Houlton was decided, and this is not to indicate that the principle was other than patently obvious from the judgment of the Chief Justice in the guideline judgment. ..." (references omitted) Was another sentence warranted? 26 However, error by the sentencing Judge does not necessarily require the Court to intervene. In R v Boulghourgian (2001) 125 A Crim R 540, Spigelman CJ said this: (at para 34) "[34] Even though there is error detected in the reasoning process of a trial judge, s6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v Astill (No 2) (1992) 64 A Crim R 289 per Sully J at 303 and Lee AJ at 304." (see also R v Simpson (2001) 53 NSWLR 704) 27 It was said on behalf of the applicant that the plea of guilty was at the earliest opportunity. It was therefore appropriate that the full discount of 25% should have been given. Moreover, his Honour recognised that this was the first time in custody for Mr Davies. The Crown conceded before the sentencing Judge that a finding of special circumstances was warranted. In the applicant's submission a more lenient sentence should have been passed. 28 The Crown, however, drew attention to Pt 4 Div 1(1) of the Crimes (Sentencing Procedure) Act 1999. That Part was introduced in October 2002, with operation from 1 February 2003. It identified standard non parole periods in respect of offences set out in a table which formed part of that Division (s54A). The offence in count 1 (under s112(2) of the Crimes Act 1900) was included in the table, setting a standard non parole period of 5 years. The standard non parole period is described as representing "an offence in the middle of the range of objective seriousness for offences" in the table (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account. 29 At the time Mr Davies was sentenced, the regime introduced by s54A and s54B was new. His Honour did not have the benefit of the judgment of this Court in R v Way [2004] NSWCCA 131 (Spigelman CJ, Wood CJ at CL and Simpson J) (handed down on 11 May 2004). In that case the Court identified a number of principles to be used when interpreting these amendments. First, the Court explained what should be understood as "an offence in the middle of the range of objective seriousness" (paras 72-102). Secondly, it made it clear that the standard non parole period in the table must be taken as referring to an offender who has been convicted after trial (para 68). It would therefore be appropriate, where an offender had pleaded guilty, to use the standard non parole period as a reference point and to take account of the plea as a mitigating factor (s21A(3)(k)). Whilst it was argued that the standard non parole period had no application where there had been a plea of guilty (cf Bergin J in R v Mouloudi [2004] NSWCCA 96 at para 62), it is plain from R v Way that this was not so. 30 His Honour, not having that exposition, did his best in unchartered waters. He said this (referring to the standard non parole period for the offence under s112(2)): (ROS 9/10) "Having regard to some of the types of sentences that are distributed throughout this State by some of my brother Judges, I find that level of sentence to be unbelievable and unsustainable. Not because I disagree with it, because simply I do not, but because it is completely out of kilter with any perception that I have of the type of sentences that some Judges in the State visit upon some quite serious criminals." 31 He added: (ROS 10) "But be that as it may, I do not think that this offence attracts, in all of these circumstances, a non parole period of five years for any of these prisoners. I may be in disagreement then with the government in that regard, but it would be completely out of kilter with any understanding or appreciation of the sentencing guides and the sentencing methods presently used in this State. I see a need for increasing sentences. Obviously the government does too, or that section would not have come into existence. I cannot believe that that section is envisaged to be mandatory. Indeed, the Crown agrees with my thinking out loud that it is not so, that it is not mandatory." 32 His Honour concluded by saying: (ROS 10/11) "I think these are very serious sentences, and had these men ever committed anything remotely close to this before, they would be looking at very serious sentences, and they would be anyway. But in the presence of a plea of guilty I simply find myself unable to impose a non parole period of five years on any of them." 33 The Crown submitted that his Honour, not having the benefit of R v Way, had not undertaken the task which the section required. Had he done so, he would have been driven to a sentence exceeding that which he passed. In R v Way (supra), the Court made it clear that the sentencing Judge must ask and answer the question: "Are there reasons for not imposing the standard non parole period?" That question will be answered by considering the following: (para 118) "(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)." 34 Here, according to the Crown, his Honour implicitly determined that the offence was above the middle of the range of objective seriousness. He said that, whilst it was not in the worst category, "it cannot be enormously far removed from it". It was a sustained and vicious attack upon a vulnerable woman, carried out, at least initially, in the presence of a child. There were, in addition, a number of aggravating factors within s21A(2). The actual bodily harm upon the victim was an element of the offence and therefore was not an aggravating factor. The fact that the offence was committed in company was a matter included in the indictment, but would have added to the terror suffered by the victim (R v Way at para 107). The use of a weapon was a matter of aggravation, as was the fact that Mr Davies was subject to a bond at the time of the offence (s21A(2)(j)). 35 There were also matters in mitigation. Mr Davies had pleaded guilty at the first available opportunity (s21A(3)(k)). There was some expression of remorse (s21A(3)(i)), although it was far from complete. 36 On the Crown's argument, therefore, had his Honour followed the new regime, as required by the section, and explained in R v Way, and even allowing the full 25% discount for the early plea, he still would have reached a sentence exceeding that which he imposed (approximately 3 years 7 months, cf 3 years 3 months non parole period imposed). 37 His Honour did find special circumstances, it being Mr Davies' first time in custody. Even making an adjustment to take account of that finding, on the Crown's argument no lesser sentence should have been passed, especially since the offence, properly characterised, was worse than "an offence in the middle of the range of objective seriousness". 38 I accept the Crown's argument. Notwithstanding error, I am not persuaded that a more lenient sentence should have been passed. Orders. 39 I would therefore propose the following orders: 1. That leave to file an appeal out of time should be granted. 2. That leave to appeal should be granted. 3. That the appeal should be dismissed. 40 BUDDIN J: I have read in draft form the reasons of Kirby J. I agree with those reasons and with the orders proposed. I also agree with the additional remarks of Wood CJ at CL. ********** Last Modified: 10/05/2004 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.