REGINA v SHENTON [2003] NSWCCA 346

New South Wales Court of Criminal Appeal

CITATION : REGINA v SHENTON [2003] NSWCCA 346 HEARING DATE(S) : 17 November 2003 JUDGMENT DATE : 17 November 2003

JUDGMENT OF : Handley JA at 11; Grove J at 13; Adams J at 1 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : Sentence - discount for plea - desirability of explicit statement of extent of discount applied LEGISLATION CITED : ss 33,105A(1)(a), 112(3) Crimes Act 1900 CASES CITED : Thomson and Houlton (2000) 49 NSWLR 383 Regina (Respondent)

PARTIES : v

Patrick Neville Shenton (Applicant) FILE NUMBER(S) : CCA 60269/03 COUNSEL : G I O Rowling (Crown) C Smith (Applicant) SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0194 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60269/03

HANDLEY JA GROVE J ADAMS J MONDAY 17 NOVEMBER 2003 REGINA v PATRICK NEVILLE SHENTON JUDGMENT

1 ADAMS J: The applicant entered the victim's house by opening a door. This constituted a breaking and entering. He then viciously attacked her using a large metal torch, in the course of which the victim suffered serious fractures, including to her skull. 2 He was initially charged with an offence under s112(3) of the Crimes Act 1900, the circumstance of special aggravation being that he maliciously inflicted grievous bodily harm on the victim (s105A(1)(a)). This offence occurred on 9 December 2002 and the applicant was committed for trial on the charge under s112 on 17 September 2002. An indictment pursuant to that committal had been presented to which he pleaded not guilty on arraignment in this Court. 3 The ordinary procedures then followed and the trial on that indictment was set to commence on 9 December 2002. On 11 November 2002 the Office of the Director of Public Prosecutions indicated that the indictment was being reviewed and it was anticipated that the applicant would be indicted instead with an offence under s33 of the Crimes Act 1900, namely, maliciously inflicting grievous bodily harm with the intention to do grievous bodily harm. This offence carries a maximum term of imprisonment of 25 years which is the same maximum term as that provided under s112(3). On 14 November 2002 the Director advised the applicant's solicitor that it had been determined to proceed as had been previously indicated and, on 20 November 2002, a notice of intention to file an indictment in respect of the offence under s33 was forwarded to the applicant's solicitor. As it happened the applicant was then held at Goulburn Correctional Centre and, accordingly, it was not possible for his solicitor to consult with him and obtain appropriate instructions until he was next at Court on 9 December 2002, upon which date, as I have indicated, he pleaded guilty to the fresh indictment. 4 During the hearing of the sentence proceedings his Honour, the learned sentencing judge, observed to counsel then representing the applicant that the plea was a late one, an observation with which his counsel agreed. In his Honour's reasons for sentence the following appears: "His counsel submits that the Court would take into account the utilitarian value of the plea of guilty. It was entered on the day fixed for his trial. It was the first matter in priority in the list and would certainly have been reached. It was not a plea entered at the earliest opportunity in terms of its utilitarian value but it did have the effect of sparing the victim the necessity of giving evidence and still attracts some discount, though not the magnitude that would have been attracted by an early plea. A complicating feature was the previous lack of memory on the part of the prisoner for these events. Dr Lucas had some difficulty in understanding precisely the nature or genuineness of that lack of memory but the prisoner has again confirmed today that he had a problem with recalling what occurred on that occasion. No doubt that may be more difficult for those advising him to be able to give him full advice on his circumstances. Thus, while it is subtracting from the utilitarian value of the plea to some extent, the lateness of the plea does have some plausible explanation and is certainly not inconsistent with his decision to accept his legal responsibility as his plea of guilty did and as he actually stated today." 5 Regrettably his Honour did not specify precisely what allowance he made for the plea of guilty in these circumstances and I wish to bring, if I may do so respectfully, to the attention of judges dealing with these matters, the point (as the Chief Justice made it clear in Thomson and Houlton (2000) 49 NSWLR 383) that it is an important aspect of the policy considerations underlying that decision that judges, where they can do so, should make explicit the allowance which is given to offenders who plead guilty in respect of the utilitarian value of that plea. 6 I also state, by way of parenthesis, it seems to me to be obvious that his Honour indeed gave a significant discount to the applicant. It is otherwise very difficult to see how a sentence of five years with a non-parole period of three years could be justified. 7 Counsel for the applicant makes the perfectly correct point that the applicant pleaded guilty to the indictment which was presented at the first possible opportunity. However, as is obvious from the outline of events which I have given above, this indictment did not in the circumstances significantly differ from the indictment to which he had already pleaded not guilty. 8 The policy reasons justifying the utilitarian discount depend upon a realistic assessment of the procedures of criminal trials which are enumerated in Thomson and Houlton (supra) at para [131], namely, the reduction of congestion in court lists, permitting courts to plan the use of limited resources without over-listing, avoiding the waste of trial court time, reducing the waste of limited resources available to the Director of Public Prosecutions, the Public Defender and Legal Aid, reducing the waste of time of witnesses, and reducing the waste of time of jurors, the discount must be applied to the actual circumstances in which the administration of justice is assisted by the approach taken by an accused person. 9 In this case, although as a matter of form the applicant pleaded guilty at the earliest possible opportunity to the indictment that was presented, in substance his Honour's characterisation of his action as being a late plea, and his Honour's taking into account that it was entered on the day fixed for his trial, which would almost certainly have been reached, seems to me to be an accurate and entirely fair description of what actually occurred. 10 I am satisfied that no error was shown in the way in which his Honour dealt with the only matter raised for appeal and, accordingly, I would grant leave to appeal but dismiss the appeal. 11 HANDLEY JA: I agree. I would merely add, I really emphasise for myself the importance of sentencing judges following the practice commended by the Chief Justice in actually making it clear what discount they have in fact allowed in the sentence that they are awarding. 12 To paraphrase a well-known expression, a sentence which should be discounted for a plea of guilty, must not only be properly discounted, it should be manifestly be seen to be properly discounted. 13 GROVE J: I agree with Adams J. 14 HANDLEY JA: The orders of the Court will be, leave to appeal granted, appeal dismissed.