New South Wales Court of Criminal Appeal CITATION: Regina v Griffiths [2005] NSWCCA 184 HEARING DATE(S): 4 May 2005 JUDGMENT DATE: 4 May 2005 JUDGMENT OF: Grove J at 1; Hulme J at 26; Simpson J at 29 DECISION: BY MAJORITY, APPEAL ALLOWED IN PART CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - "DISCOUNT" FOR PLEA OF GUILTY AT EARLIEST OPPORTUNITY - WHETHER STATED INTENTION TO ALLOW SUBSTANTIAL DISCOUNT ACHIEVED - NO SPECIAL POINT OF PRINCIPLE LEGISLATION CITED: Crimes Act 1900 R. v Dowd [2005] NSWCCA 113 R v Johnston [2004] NSWCCA 307 CASES CITED: R v Thomson and Houlton 2000 49 NSWLR 383 R v Way 2004 60 NSWLR 168 PARTIES: Regina v Darrell Anthony Griffiths FILE NUMBER(S): CCA 2005/226 J. Girdham (Crown) COUNSEL: P. Winch (Applicant) S. Kavanagh (DPP) SOLICITORS: P. Dwyer (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0063 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2005/226 GROVE J HULME J SIMPSON J 4 May 2005 REGINA v DARRELL ANTHONY GRIFFITHS Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Blackmore DCJ in Sydney District Court. The applicant was committed for sentence after pleading guilty before a magistrate to offences of aggravated breaking, entering and stealing and resisting arrest, both offences occurring on 9 April 2004. 2 The facts were before the Court in an agreed statement which in brief described the applicant climbing onto the first floor balcony of a building in Redfern at about 6.12 pm on the date mentioned. He was observed by neighbours. They called police. Within the premises the applicant took a pair of motorcycle pants from a wardrobe and a toiletries bag. However, before he could depart, police arrived and he was called upon by them. He ran up the stairs of the premises where he encountered an occupier who was drinking with friends. He said "Don't say anything, the cops are after me", but thereafter police entered this room. 3 Acting Inspector Wallbank told the applicant he was under arrest and directed him to go to the floor. The applicant refused and resisted attempts to have him do so by stiffening his limbs and body. Other police came to assist in restraining the applicant who continued to resist by straightening his arms and moving them around, but eventually the applicant was handcuffed and taken to the police station where he was in due course charged. 4 The maximum prescribed penalty for resisting arrest contrary to s 58 of the Crimes Act is five years imprisonment. His Honour imposed a sentence consisting of a fixed term of imprisonment for six months dating from the date of arrest and expiring on 8 October 2004. The maximum prescribed penalty for aggravated breaking, entering and stealing is twenty years imprisonment. His Honour imposed a sentence consisting of a full term imprisonment of four years and six months commencing upon the expiry of the sentence for resisting arrest, with a non parole period of three years and three months. Thus, the earliest date for parole available to the applicant became 8 January 2008. 5 The circumstance of aggravation relied upon by the prosecution was that the applicant was aware that there were occupants in the house when he broke in. 6 It might be noted that the applicant gave evidence in the sentencing proceedings. He claimed that he initially climbed up to enter the premises because his girlfriend had thrown a jumper there during an argument. It was after he entered the premises for this purpose that he saw the items which he decided to take. The sentencing judge rejected this evidence and no error in this fact finding is demonstrated. There was no evidence corroborating what the applicant said concerning his jumper. 7 A statement by the neighbour who called the police saw the person subsequently identified as the applicant climb to a balcony and stand there for about two minutes looking about. He heard a female voice scream and when this happened the applicant turned around and took off his tracksuit top and threw it over the balcony onto the street. 8 The applicant is a person considerably disadvantaged and was, at the time of offence, living in impoverished circumstances, virtually camping in an abandoned building. He had little in the way of possessions. He was addicted to drugs. He was on parole after serving a sentence for armed robbery and that parole had approximately another year to run. The learned sentencing judge expressed himself as taking these matters into account and also the applicant's deprived upbringing but noting his resort to crime, violence and drugs he observed that his case is: "by no means unique either in the aboriginal or wider community. Rather, his attitude, as identified by the psychologist, is to see himself as a victim". 9 The reference to the psychologist is to Mr Peter Champion, part of whose report his Honour expressly recited. As that report revealed aspects of rehabilitation of the applicant remain for the future. 10 Finally, with reference to his Honour's remarks, he noted that in respect of the offence of aggravated breaking, entering and stealing, there was a prescribed standard non parole period of five years but, in accordance with authority (R v Way 2004 60 NSWLR 168) the plea of guilty was an indication that the standard period may not be appropriate. In addition, his Honour assessed the applicant's offence as lying outside the mid range of seriousness for such an offence. Of course, in the circumstances of his arrest nothing was actually taken. 11 The first ground of appeal asserts that the sentencing judge allowed an inadequate discount for the applicant's plea of guilty. His Honour expressly found that it was offered at the earliest opportunity. The guideline judgment of R v Thomson and Houlton 2000 49 NSWLR 383 suggests a "discount" range for this of between 10 and 25 percent from sentence otherwise assessed. His Honour indicated that, but for the guilty pleas, he would have assessed a sentence in total for both offences of six years. The effective total, after accumulation, amounted to five years with a period in custody of three years and nine months before eligibility for parole. 12 The applicant has pointed out that the figures disclosed by his Honour represent an arithmetical discount of 16.7 percent. It is submitted that the applicant should have received a discount at the upper end of the guideline range and that the reduction, which can be observed by reference to what I have called the arithmetic, discloses error. 13 It needs to be remembered that the guideline to which I have referred did not create a rule: R v Dowd [2005] NSWCCA 113. It has been said however, that it can be expected that a sentencing judge who has concluded that a just discount is at the lower rather than the higher end of the guideline range ought to give some explanation or indication as to why he reached that conclusion: R v Johnstone [2004] NSWCCA 307. 14 In this case the discount was not at the bottom or lower end of the range but approximated a point above the middle of it. 15 His Honour merely said that he would provide a substantial discount with respect to the total, having regard to the plea entered, and it cannot be denied that a discount of 16.7 percent, if regard is not paid to the guideline figures, could fit the description "substantial". 16 It is suggested in a submission on behalf of the Crown that the utilitarian value of the plea was diminished by the expected brevity and lack of complexity of any trial. The ingredients mentioned are self evidently correct, but his Honour did not ascribe them as reasons for his conclusion. The departure from the application of the discount at the upper end of the range mentioned in the guideline authority has a perceptible effect on the period of time for which the applicant must be kept in custody before eligibility for parole. Of course, it also affects the total sentence. 17 I confess that I am reluctant to impute error to his Honour in the circumstances and that is a pre-condition to the exercise of power by this Court. Despite my reservation, in the absence of any explanation for the significant departure from what can be observed to be an increasingly common practice that the vast majority of offenders who plead guilty at the very earliest opportunity do in fact appear to receive a discount on sentence otherwise assessed at the upper end of the range, I have concluded that this Court should intervene to the extent of according similar benefit to the applicant. 18 The second ground asserts that the sentences were manifestly excessive. 19 In relation to the offence of resisting arrest, it is pointed out that that offence is dealt with in the Local Court unless the prosecutor elects trial upon indictment. Undoubtedly, it can be inferred that the matter was dealt with in the District Court because it was associated with the serious offence of aggravated breaking, entering and stealing. The issue before this Court is whether sentence was tainted by error. The applicant has a considerable record which would disentitle him to leniency but of particular importance in assessing an appropriate sentence for this offence are the circumstances that the applicant has been convicted of offences of resisting arrest on three previous occasions (in 1990, 1992 and 1996) and of assaulting police on a further three occasions (in 1991, and two offences in 1995). 20 The sentence assessed by his Honour was appropriate for this particular offender. 21 It is argued that the objective seriousness of the offence of aggravated breaking, entering and stealing was towards the lower end of the range of seriousness because it was opportunistic, amateurish in its execution in the sense that the applicant climbed to a balcony in view of neighbours, the motive was need as opposed to greed in the sense that the property was taken to supplement the applicant's meagre possessions rather than for sale or the like, and that there was neither actual taking of property nor damage to the premises. 22 All of those propositions in support of the submission were demonstrable from the material before the sentencing judge. Nevertheless the assessment of sentence was a matter for discretionary judgment. There is no indication that his Honour failed to take these matters into account, to the contrary, he made express reference to most of them. 23 Given the circumstance of aggravation (in addition to that constituting the offence) that the applicant was on parole at the time, I am unable to conclude that his Honour's assessment was excessive, particularly when gauged against the prescribed maximum penalty for the offence. 24 I would reject this ground of appeal. 25 To implement what I have already said in relation to the discount for the plea of guilty, I would propose the following orders: (1) Application for leave to appeal granted. (2) Appeal allowed in part, and sentence imposed in the District Court for the offence of aggravated breaking, entering and stealing quashed, and in lieu thereof the applicant sentenced to imprisonment consisting of a non parole period of three years commencing on 9 October 2004 and expiring on 8 October 2007, and to a total term of four years commencing on 9 October 2004 and expiring on 8 October 2008. (3) The first date of eligibility for parole specified as 8 October 2007. 26 HULME J: I disagree. In my view the appeal should be dismissed. My point of disagreement with the reasons of the presiding judge lies in the issue of the discount for the plea of guilty. His Honour said he would provide a substantial discount. He did so. 27 In the guideline judgment in R v Thomson and Houlton 2000 49 NSWLR 383 at par 154 it was said by the Chief Justice, with whom the other members of the Bench agreed, that one of the circumstances which would generally affect the appropriate level of discount in a particular case was the complexity of the issues about which evidence will have to be gathered and adduced. 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. 28 In this case there was no complexity about the issues and it is impossible to concede that the trial could have been other than one of the shortest with which the Courts have to deal. In that situation I see no error in the sentencing judge's decision to give a discount of one year from 6 or, 16 and two-thirds in percentage terms rather than 25 percent. 29 SIMPSON J: I agree with the presiding judge. 30 GROVE J: The order of the Court will be, by majority, as I have proposed. ********** 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.