New South Wales Court of Criminal Appeal CITATION : Regina v Turner [2004] NSWCCA 260 HEARING DATE(S) : 30/06/2004 JUDGMENT DATE : 30 June 2004 JUDGMENT OF : Ipp JA at 1; Hulme J at 2; Hislop J at 13 DECISION : Leave to appeal granted; Appeal allowed; Sentence quashed; In lieu thereof the applicant is sentenced to a term of imprisonment of three years to date from 12 March 2003 and to expire on 11 March 2006; A non-parole period of two years and three months is fixed to expire on 11 June 2005 on which date the applicant is to be eligible for consideration for release to parole. CATCHWORDS : Criminal law - Sentencing - Utilitarian value of plea not qualified by strength of Crown case - Double jeopardy. Crimes Act 1900 - s 113(1), 114(1)(b) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - ss 21, S21A(3)(k), 22(1), 47(3) Criminal Appeal Act - s 6(3) R v Bishop NSWCCA 23 September 1996 unreported CASES CITED : R v Lee (2002) NSWCCA 236 R v Sharma (2002) 54 NSWLR 300 Veen v R (No 2) (1988) 164 CLR 465 PARTIES : Darren James Turner - Applicant Regina - Respondent FILE NUMBER(S) : CCA 60048/04 COUNSEL : A Francis - Applicant E Wilkins - Respondent SOLICITORS : S O'Connor (Legal Aid Commission of NSW)- Applicant S Kavanagh (Director of Public Prosecutions (NSW))- Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0094 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60048/2004 IPP JA HULME J HISLOP J WEDNESDAY 30 JUNE 2004 REGINA v DARREN JAMES TURNER Judgment 1 IPP JA: I agree with Hislop J. 2 HULME J: I agree with the orders proposed by Justice Hislop and generally with his Honour's reasons. I would, however, add the following remarks. 3 The Crown, though acknowledging the error in his Honour's approach to the topic of the discount for the plea, submitted that, nevertheless, the sentence was not one with which this court should interfere. In this respect the Crown sought to rely on s 6(3) of the Criminal Appeal Act, which provides:- "6(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 4 Counsel for the appellant sought to avoid the conclusion clearly apparent from the actual words of the section by reference to remarks in three previous decisions of this Court. The first to which reference was made was the decision in The Queen v. Lee (2002) NSW CCA 236 at 29. In that case the court allowed an appeal against sentence and imposed a lower sentence but in paragraph [29] the Chief Justice, with whose judgment the other members of a five member Court agreed, said this:- "His Honour fixed the non-parole period at fifty percent of the head sentence. It is not clear to me that all of the maters to which his Honour referred constituted special circumstances which justified a variation in the statutory ratio of this degree. Nevertheless, I am not minded to change the proportion bearing in mind the principle of double jeopardy." 5 Although his Honour used the expression, "the principle of double jeopardy" in that paragraph it seems to me that he was not being precise. I say that because there is, firstly, no consideration in the reasons of earlier decisions which had dealt with the principle of double jeopardy and when that expression is appropriate and, secondly, because it seems to me his Honour was saying that, the trial Judge having fixed the non-parole period at 50 per cent of the head sentence, there was no sufficient reason why this court should come to a different view and increase the non-parole period. 6 On my understanding the authorities dealing with the topic of double jeopardy relate to cases where an offender is at risk of having a heavier sentence imposed pursuant to a Crown appeal and the expression is not one apposite to the situation envisaged by s 6(3) of the Criminal Appeal Act. 7 A second case upon which reliance was placed was The Queen v. Parkinson (2001) 125 A Crim R 1. I observe at the outset this was a two Judge bench and there is, or at least used to be, a principle that decisions of two Judge benches were not regarded as sufficiently authoritative to be quoted in the Court of Criminal Appeal. There is much to be said for the maintenance of that principle. Be that as it may the passage relied on is at par 37: "I wish to make it clear that the total sentence which I have proposed is unduly lenient and verging on the inadequate, but has been brought about in order to permit the applicant to see that he has received some benefit for his pleas and to encourage him to work for parole and to assist him when he is released. He has not received the full measure of the benefit he should have received in terms of the percentage discount because to do so would result in a grossly inadequate sentence if this Court did not substantially increase the sentences imposed by Judge Bellear. But in effect he has received the full benefit of the pleas before the magistrate because the sentence now imposed is the very least that could have been imposed even giving him the fullest measure of discount for his pleas of guilty." 8 In that case, and in particular in that paragraph, Justice Howie, with whom Justice Barr agreed, gave no attention to the terms of s 6(3) of the Criminal Appeal Act. Their decision was made ex-tempore. There had been no Crown appeal and accordingly the sentence previously imposed could not properly be increased and, if effect was to be given to the Court's view that the parole period fixed at first instance was erroneously inadequate, the non-parole period had to be reduced. 9 The third reference upon which reliance was placed was the decision The Queen v. Petrie (2003) NSW CCA p 205 at [21] where again Justice Howie delivered the decision, with which the other members of the court agreed. His Honour said: "Although because this Court has found error, it can exercise the judge's sentencing discretion afresh, I do not believe that any lesser sentence than that chosen by the sentencing judge is appropriate to reflect the objective seriousness of the applicant's conduct and the need for general and in particular personal deterrence. The 6 years, however, should be reduced by 25 percent and result in a head sentence of 4 years and 6 months. …" 10 His Honour again directed no specific attention to the terms of s 6(3) and on one view seems to have applied the sub-section to the trial Judge's starting point rather than, as the section itself requires, attention to the sentence ultimately imposed. However, when all his Honour said is taken into account it is clear that by the expression "lesser sentence than that chosen by the sentencing judge", Howie J was referring to the sentencing judge's starting point and not the sentence originally imposed. 11 That it is the sentence ultimately imposed to which s 6(3) refers is made clear by the decision of this court in The Queen v. Simpson (2001) 53 NSWLR 704 at par 79 wherein the court said inter alia: "By s 6(3) this court must form a positive opinion that 'Some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed the essential pre-condition of the exercise of the power to quash the sentence and pass such other sentence in substitution therefore, is not satisfied." 12 The terms of s 6(3) itself and the remarks of this court in The Queen v. Simpson provides strong grounds for concluding that the passages relied upon by counsel for the appellant in this area should not be followed either upon the ground that they are wrong, or more probably, that the Judges did not mean them to be taken in precisely the way upon which the appellant has sought to place reliance. 13 HISLOP J: On 3 June 2003 the applicant pleaded guilty to the offence of break and enter a dwelling house with intent to commit a serious indictable offence therein, namely stealing, contrary to the Crimes Act 1900 s 113 (1). 14 The maximum penalty for such an offence is ten years imprisonment. Bell DCJ sentenced the applicant to three years four months imprisonment. He set a non-parole period of thirty months. His Honour found there were no special circumstances. 15 In sentencing the applicant his Honour took into account on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act 1999 ("the Act") an offence of possessing house breaking implements contrary to the Crimes Act section 114 (1) (b). The offence arose from the same incident that gave rise to the offence to which the applicant had pleaded guilty, and related to a screwdriver which he found in a receptacle near the premises. 16 The applicant seeks leave to appeal against sentence. 17 The facts as found by his Honour were: "On 12 March this year the (applicant), who was then on parole, was at his father's home. An incident took place that one might, in many respects, regard as a rather minor matter. Mr Darren Turner was assisting in handling some food for other persons and touched his mouth and his father told him that he should be careful in handling other people's food by not putting his fingers to his mouth, and told him to wash his hands. This, Mr Darren Turner has told the psychologist, Anna Robilliard (whose report is part of Exhibit A), took him back to his childhood when his father was a dominating figure and he had experienced difficulties in handling that, so he left his father's home, went to a house nearby and, it would appear, located a screwdriver that was in a receptacle near the premises and used it to force a lock to a window and, thus, gain entry into the house. It happened that the female resident of that house was returning home at this time with her shopping- it being about midday. She heard movement inside her home, entered the premises, and saw the offender running out the back door. She chased Mr Turner, who ran to his father's home, or rather, ran back toward his father's property. He was, in effect, cornered by this lady who, in some manner, was able to raise the alarm. The police were called and Mr Turner was arrested. He was taken into custody on that date 12 March 2003 and has remained in custody since that time." 18 His Honour accepted that this offence was "something of a spontaneous reaction to the incident in the father's home". However, as his Honour observed, the applicant at the time of the offence was aged 41, had a lengthy criminal history, including, but not limited to, numerous convictions for break enter and steal and related offences, and was on parole at the time. 19 The applicant relies in his written grounds of appeal upon a single ground, namely "The sentencing judge erred in having regard to the strength of the Crown case in determining the utilitarian value of the plea of guilty". 20 The applicant submits the error is to be found in the following comments made by his Honour on sentence: "Mr Turner has entered a plea in the Local Court, and he is entitled to recognition of the benefit of the plea of guilty in the sentence. The degree to which the benefit accrues, as it were, does take into account the strength of the Crown case and it seems to me here that it would have been a very very strong case for the Crown to have run if Mr Turner had decided to enter a plea of not guilty, so the discount is not as high as might otherwise be granted in circumstances where a case can be clearly perceived to be of strong contest. I, therefore, as I am required to do, specify a discount, and the discount is of 10 percent." 21 S21 A (3) (k) of the Act provides that a plea of guilty by an offender is to be taken into account as a mitigating factor in determining the appropriate sentence for the offence. 22 S 22 (1) of the Act provides, "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." 23 The rationale for reducing the penalty by reason of a plea of guilty is that the plea may be seen as a manifestation of remorse or contrition, it may spare victims from the painful process of giving evidence, and it has a utilitarian value in that the community is spared the expense of a contested trial. 24 It is relevant to have regard to the strength of the Crown case when considering whether the plea is a manifestation of remorse or contrition: "Where guilt would inevitably be discovered and established whatever attitude is adopted by the prisoner, a plea of guilty does not evidence any particular degree of contrition, so that leniency will be extended for the plea of guilty only so far as there is a utilitarian benefit in the savings of the time and cost of a trial ... None of this is to say that contrition cannot still be taken into account. All that is said is that the plea of guilty does not evidence such contrition" - R v Bishop NSWCCA 23 September 1996 unreported per Hunt CJ at CL at 5-6. 25 The strength of the Crown case does not qualify the utilitarian value of the plea - R v. Thomson (2000) 49 NSWLR 383 at [137]. 26 His Honour concluded, correctly, that the Crown case was very very strong. It would follow that the plea of guilty in this case does not evidence contrition or remorse, nor was this a case where the nature and circumstances of the offence were such that the giving of evidence by the victim was a matter of concern. 27 Thus the relevance of the plea related solely to its utilitarian value. His Honour, in assessing the discount to be made for the utilitarian value of the plea, erred in having regard to the strength of the Crown case. 28 In the guideline judgment of this court in Thomson Spigelman CJ (with whom the other members of the court agreed) held that, generally, in relation to the discount for the utilitarian value of a plea of guilty: "(152) In my opinion, the appropriate range for a discount is from 10-25 per cent. (153) 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. (154) 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 a 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 the plea. (155) The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." That decision remains applicable in this State - R v Sharma (2002) 54 NSWLR 300. 29 There was, in this case, a plea of guilty at the committal stage but the case, had there been no plea of guilty, would not have involved any great complexity. In my opinion the appropriate reduction for the plea of guilty should have been in the order of 20 per cent. 30 If a 20 per cent discount rather than a 10 per cent discount had been made for the plea the sentence would have been approximately three years with a non-parole period of two years and three months. 31 The Crown, in its written submissions, has conceded the error by his Honour but contends that a 10 per cent discount for the guilty plea was not erroneously low or, alternatively, the effect on the sentence of the 10 per cent discount for the guilty plea is more than offset by the failure of the sentencing Judge to impose a heavier sentence by reason of the aggravating feature of breach of parole and by reason of the application of the principles in Veen v R (No 2) (1988) 164 CLR 465 when considering the effect of the prior offences. I do not accept these submissions. 32 In my opinion the 10 per cent discount was erroneously low for the reasons previously expressed. The plea was entered at the committal stage and the benefit to the public of avoiding a trial and the expense thereof was fully realised. 33 The Crown has submitted that by reason of the breach of parole his Honour should not have directed the sentence commence from the date of the applicant's arrest for the subject offence. However, s 47(3) of the Act provides that the court must take into account any time for which the offender has been held in custody in relation to the subject offence. His Honour did so. Additionally there would be an element of double punishment if the sentence was not backdated to when the applicant went into custody particularly if, as may well be the case, it was the subject offence which constituted the breach of parole. 34 The subject offence, as his Honour found, was something of a spontaneous reaction to the incident in the father's home. His Honour, in my opinion, did not err in not imposing a heavier sentence by reason of the applicant's record. It is apparent from the transcript of the submissions on sentence that his Honour was well aware that such a course was open to him had he thought it appropriate. 35 In the course of argument counsel for the applicant sought to resist the Crown's submissions that the sentence should remain the same on the basis that the Crown's submissions involved placing the applicant in double jeopardy and she relied upon the statement by the Chief Justice in R v Lee (2002) NSWCCA 236 at [29]. I do not consider it necessary to express any view on this in the light of the conclusion to which I have ultimately come in this case. 36 In my opinion the sentence warranted in law and which should have been passed by his Honour is a head sentence of three years with a non-parole period of two years and three months. 37 I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentence quashed. In lieu thereof the applicant is sentenced to a term of imprisonment of three years to date from 12 March 2003 and to expire on 11 March 2006. A non-parole period of two years and three months is fixed to expire on 11 June 2005 on which date the applicant is to be eligible for consideration for release to parole. ********** Last Modified: 08/06/2004 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.