New South Wales Court of Criminal Appeal CITATION: Collon v R [2009] NSWCCA 187 HEARING DATE(S): 8/07/2009 JUDGMENT DATE: 29 July 2009 JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Johnson J at 56 DECISION: Leave to appeal granted, but the appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentence - standard non parole period - impairment of mental capacity through deprived upbringing and intoxication - whether offence fell within the mid range - late plea but mental health issues - suggested case exceptional - whether sufficient discount for guilty plea - utilitarian value of plea - whether sentence manifestly excessive. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Cheatham [2002] NSWCCA 360 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Stewart [2008] NSWSC 1359 CASES CITED : House v The King [1936] HCA 40; (1936) 55 CLR 499 Mulato v Regina [2006] NSWCCA 282 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 R v Borkowski [2009] NSWCCA 102 R v Israil [2002] NSWCCA 255 PARTIES: Mark Anthony Collon (App) Regina (Resp) FILE NUMBER(S): CCA 2007/3374 COUNSEL: G Bashir (App) D Arnott SC (Resp/Crown) SOLICITORS: S O'Connor - LAC (App) S Kavanagh (Resp/Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 2007/3374 LOWER COURT JUDICIAL OFFICER: Mathews AJ LOWER COURT DATE OF DECISION: 18/02/08 LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 174 IN THE COURT OF CRIMINAL APPEAL 2007/3374 McCLELLAN CJ at CL KIRBY J JOHNSON J Wednesday 29 July 2009 Mark Anthony COLLON v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Kirby J. 2 KIRBY J: Mark Anthony Collon (the applicant) was charged with having murdered Daryl Ogden (the deceased) at Redfern on 27 October 2006. On 18 February 2008, he pleaded guilty to that charge. He was thereafter sentenced by Mathews AJ to imprisonment for 21 years, made up of a non parole period of 14 years and 6 months (commencing 27 October 2006 and expiring 26 April 2021), and a balance of term of 6 years and 6 months (expiring on 26 October 2027). Mr Collon seeks leave to appeal against that sentence. 3 Before going to the Notice of Appeal, I should describe the circumstances in which the offence occurred. I should also say something about the applicant's personal circumstances. The offence. 4 Mr Collon was born in September 1985. At the time of the offence he was 21 years old. He came from a deprived background, as I will shortly describe, and at various times had been homeless. 5 In August 2005 Mr Collon was approached by an outreach worker from an organisation known as Open Family Australia. That organisation provided assistance and support to homeless people. It arranged for Mr Collon to see South Sydney Youth Services, who found him accommodation in a home unit at Redfern. The unit was owned by the Department of Housing. It was shared accommodation, where each resident had his or her own bedroom. 6 In August 2006, that is approximately one year later, Daryl Ogden (the deceased) moved into the unit. He also had been homeless. He was somewhat older, aged 24 years. However, he was much smaller, 60 kilograms, compared to Mr Collon, who was 95 kilograms. 7 One gathers there was friction almost from the outset. Both spoke to social workers from South Sydney Youth Services and Open Family Australia about their grievances against each other. Each said he no longer wished to live in the unit. The deceased also said that he was worried about Mr Collon's behaviour. He had placed his bar fridge against the door of his bedroom to prevent Mr Collon gaining access. 8 Attempts were made to resolve these issues. Meetings were arranged to discuss their differences. On Wednesday 25 October, that is two days before the murder, it was arranged that they meet. The deceased attended but not Mr Collon. A meeting was then arranged for the following day. The same thing happened. A third meeting was set up for 11.00 am on Friday 27 October 2006, the day of the murder. Again the deceased attended and again Mr Collon failed to do so. Later that afternoon an officer from South Sydney Youth Services telephoned Mr Collon. She told him that, as he plainly did not want to work through his differences with Daryl Ogden, he may be asked to leave. 9 At some time between 7.00 and 7.30 that evening, a person in a neighbouring unit heard yelling. At 7.26 pm Mr Collon rang 000 ambulance emergency. The conversation was recorded. The call began with these words: "000 Op.: Ambulance Emergency, what suburb? Male: 5 slash 40 Morehead Street, Redfern. 000 Op.: Redfern's the suburb is it? Male: Surry Hills. 000 Op.: You ... Male: I just stabbed a guy, man." 10 The operator then sought the caller's mobile phone number, which Mr Collon provided. The call terminated and she telephoned him back. The sentencing Judge, who listened to the recording, said that he sounded extremely stressed and on the verge of panic. His answers, nonetheless, were responsive and included the following: "000 Op.: Ok, you need to go, go and be with the patient ok. Tell me when you're with him. Male: I slit his throat, he's dead man. 000 Op.: Tell me when you're in the same room as him. Are you in there now? Male: Yes. 000 Op.: Ok. Male: He's not moving or breathing. 000 Op.: Now is there serious bleeding? Male: Yes. 000 Op.: You need to get pressure on the bleeding. Male: I can't, I slit his throat. I stabbed him first." 11 Whilst they were conversing, the ambulance arrived and the police soon thereafter. Mr Collon was seated at the entrance of the block of units, rocking back and forth. He was covered in blood and tears were running down his face. Mathews AJ described what then occurred in these words: (ROS para [5]) " ... He told the police that he had started sniffing butane at about 9.00 or 10.00 that morning and had been drinking wine from 2.00 pm. He said 'Daryl came home about 7.30pm and we had a fight. Daryl had stolen a pack of my cigarettes and damaged my bedroom door. Daryl also accused me of taking his play station too. I went into the kitchen and grabbed a long carving knife and then I stabbed him in the eye then cut his throat.'" 12 Mr Collon was taken to Redfern police station where he was interviewed. He said that they had an argument which degenerated into a fight. He threw the first punch. He ran into the kitchen, took a long carving knife and then returned to the deceased's bedroom. He then stabbed him "in a few places", he was not sure precisely where. The police recovered two knives from the kitchen sink, one large and the other smaller. Both had obvious signs of blood on the blade. A pair of scissors was also found in the deceased's bedroom with blood on both blades. All three items were tested. The blood had the same DNA profile as that of the deceased. 13 A post mortem examination revealed multiple sharp force wounds. The significant wounds included: (ROS para [7]) "A stab wound to the right side of the neck that passed downwards through the structures of the side of the neck. A stab wound to the left side of the back that entered the left pleural cavity and the upper lobe of the left lung. A large incised wound that passed across the neck. In addition there were 15 superficial wounds to the head and neck, at least 4 wounds to the hands and 8 relatively superficial wounds to the deceased's back." The subjective case. 14 The sentencing Judge was provided with the file of the Department of Community Services relating to Mr Collon. It was voluminous and described the torment of his early years. Mathews AJ summarised this material in these words: (ROS para [9]) " ... The offender had an extremely disturbed and disrupted childhood. When he was 3 or 4 years old his mother left the family home leaving the offender and his older brother in their father's care. For the next two years or so the offender lived with his paternal grandparents. Then his father remarried and he and his brother returned to live with their father and step-mother. It is apparent that the offender suffered a great deal of physical and mental abuse at the hands of both his father and his step-mother. The first official notification of child abuse occurred in 1992 when he was 7 years old. Many more followed. At the age of 10 the offender was placed into Glenfield Park Special School for children with behavioural problems and learning difficulties. At about that time he was diagnosed with Attention Deficit Disorder and placed on medication. When he was 12 years old his father, saying that he was unable to control him, handed him over to the care of DOCS and he was made a State ward. He has had minimal contact with his father since then. He was put into various placements but foster care was always unsuccessful, with the offender generally running away after a relatively short time. He spent a great deal of time on the streets, saying that he preferred this type of existence." 15 It is unsurprising that the applicant turned to drugs. Since the age of 12 years he has consistently abused alcohol, marijuana and butane. Butane became his principal drug because it was cheap and readily available. He had no secondary schooling and acquired no skills. 16 It was also unsurprising that his chaotic life brought him into contact with the police. Dr Rosalie Wilcox, psychiatrist, had access to Mr Collon's file from Juvenile Justice. She noted that 98 pages related to his prior contact with the police. There were many reports of poor impulse control, as well as threats and acts of violence. He came before the Children's Court on a number of occasions. Although still a child, he was charged with a number of offences which Mathews AJ described in these words: (ROS para [11]) "...As early as August 1998, when he was not yet 13, he was charged with assaulting a police officer in the execution of his duty, and malicious damage to property. In February of the following year he committed several assaults. At that time he was approximately thirteen and a half years old. He was described as already having a 'lengthy criminal history'. Very significantly, there have been two previous incidents in which he has threatened to use a knife: once in March 1999 and again in May 2003 when he was placed under a Control Order for 12 months in relation to two charges of robbery being armed with an offensive weapon, namely a knife." 17 Before his plea of guilty, Mr Collon was assessed by a number of psychiatrists. Dr Jonathan Carne saw him at Long Bay Gaol on 22 August 2007. He diagnosed a number of psychiatric disorders, including Attention Deficit Hyperactivity Disorder and a mild intellectual disability characterised by, amongst other things, impulsivity and significant poly-drug abuse problems. In respect of the offence, Dr Carne said this: (Report 24.8.07) "In my view the events which led to the death of Daryl Ogden were the results of the effect of intoxication with alcohol, inhaled butane and marijuana having a significant effect of Mr Collon's thinking which had already been shown to have long-term deficits characterised by impaired reasoning and impulsivity." 18 The Crown arranged for Mr Collon to be seen by Dr Rosalie Wilcox, psychiatrist. Mr Collon told her that he had no memory after going to the kitchen. He did not recall the stabbing. He said he had blacked out. That history, as Dr Wilcox remarked, was at odds with the information Mr Collon had provided to the police and others immediately after the stabbing. She believed that either he was dissembling, or had deliberately blocked out the stabbing from his memory. Her conclusion was expressed in these terms: (report 17.12.07) "The fact that he was shocked by his actions and when he realized what he had done called the ambulance, waited around for the police and made no attempt to flee from the site of the alleged offence suggested to me that there had been a period of time where his capacity to control himself had been significantly impaired. For this reason I believe his capacity to control his actions was influenced by his abnormality of the mind. However whether his impairment due to his abnormality of mind was so substantial as to warrant a reduction of the crime of murder to manslaughter is for the jury to decide." 19 Dr Wilcox later listened to the 000 calls. Having done so, she expressed the view that, if Mr Collon had lost control, it was for a brief period. He managed to regain control to make the 000 call and thereafter follow the directions of the operator. Notice of Appeal. 20 The application for leave (as later amended) identified three issues where it was said that the sentencing Judge had been in error. They were: Ground 1: The sentencing Judge erred in determining that "in my view it is in the mid range of seriousness for the offence of murder" and should have held that the offence was in the low range. Ground 2: The sentencing Judge erred in law in not affording the applicant significant leniency on behalf of both his guilty plea and his admissions. Ground 3: In the circumstances of this case, the sentence was manifestly excessive. 21 I will deal with each ground in turn. Ground 1: The finding of a mid range offence. 22 Under the Crimes (Sentencing Procedure) Act 1999 ("the Act"), the standard non parole period fixed in respect of the murder committed by Mr Collon was 20 years imprisonment. That standard presupposes an offence "in the middle of the range of objective seriousness" (s 54A(2) of the Act). Her Honour, in identifying where in the range of objective seriousness Mr Collon's crime fell, referred to two aggravating factors, namely: (ROS para [17]) " ... First that the offence involved the actual use of a weapon and secondly that the offence was committed in the home of the victim." 23 Her Honour thereafter dealt with the Crown's submission that the offence was "well above the mid range". She said this: (ROS para [18]/[19]) "18 I regard the first of these factors as by far the most significant. Not only did the offence involve the use of one weapon, but the forensic evidence clearly shows that two separate knives and a pair of scissors must have been wielded by the offender against the deceased. The number and extent of the injuries revealed in the autopsy report bear testament to the ferocity of this attack. Because of this factor, the Crown has submitted that this offence falls well above the mid-range of objective seriousness for the offence of murder. 19 I accept that the ferocity and violence of the attack upon the deceased is a serious aggravating factor, as is the fact that no less than three weapons were used. On the other hand, the killing itself was neither planned nor premeditated. There was a background of friction between the two men, but the evidence reveals no previous serious violence between them. The sequence of events which all parties accept as the most likely is this: After the deceased arrived home on the evening of 27th, the offender took a knife intending to threaten him with it. At some point in the confrontation between them, the offender lost control of himself and launched into his ferocious attack on the deceased. He nevertheless had enough self-awareness, and consciousness of the horror of the consequences of his actions, to make the 000 call shortly afterwards." 24 Her Honour then made the following determination: (ROS para [20]) "20 Given the lack of planning involved, I do not consider that the objective seriousness of this offence is as high as the Crown would put it. In my view it is in the mid-range of seriousness for the offence of murder." 25 Counsel for the applicant asserted there was error. The sentencing Judge failed to address adequately the criminality of Mr Collon. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the Court identified relevant circumstances that can objectively affect the seriousness of the offence, including the following: (at 186-187) "86 ... This would extend to ... mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67." 26 Here, it was common ground that the crime was the product of a loss of self control. That loss, according to the applicant, could be traced to two matters, each reducing the moral culpability of Mr Collon. The first was that he was significantly (although not substantially) impaired, as recognised by Drs Wilcox and Carne. Each found that he had an abnormality of mind, the consequence of his deprived upbringing (cf R v Cheatham [2002] NSWCCA 360, per Smart AJ at para [125] and Beazley JA at para [139]). 27 Secondly, at the time of the incident, Mr Collon was further impaired because he was intoxicated through the combination of drugs and alcohol ingested that day. Ordinarily, self induced intoxication is not a matter in mitigation. However, Mr Collon, according to counsel for the applicant, fell within the exception recognised in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In that case, Wood CJ at CL said this, in the context of drug addiction, when identifying factors relevant to the objective criminality of the offence: (at 398) "273 ... (c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might: (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible ... or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;" 28 Counsel for the applicant, in written submissions, also added the following: (p 5) "23 ... Relevant to this were the findings that this was not an offence where there was an intention to kill (inferred from the rejection of the Crown submission in this respect) and the intent that arose (at a time of loss of self control) was neither planned or premeditated." 29 Counsel for the applicant was also critical of other aspects of her Honour's remarks, including her reference to the ferocity of the attack (para [19]) and her finding, as a circumstance of aggravation, that the offence took place in the victim's house. 30 Let me quickly deal with the subsidiary issues before going to the Crown submissions in answer to the applicant's main argument. The ferocity of the attack was plainly relevant. Paragraph [19] of her Honour's remarks was simply descriptive. In support of the argument that it was not an aggravating factor that the crime was committed in the deceased's house, counsel drew attention to another sentencing matter involving her Honour Justice Mathews. In R v Stewart [2008] NSWSC 1359 (at para [48]), her Honour (adopting an agreed position by the parties) stated that, although the crime in that case was committed in the victim's house, and that was "technically" a matter of aggravation, it should be given no weight, since it was the home of both the offender and the deceased. 31 However, the accommodation occupied by the applicant and the deceased was akin to a boarding house. Each shared facilities but had separate rooms. The murder occurred inside the deceased's bedroom. He ought to have been safe within his bedroom. Further, counsel then appearing for Mr Collon on sentence did not dispute that, in the circumstances, it was an aggravating factor (ROS para [17]). 32 Returning to the main argument concerning Mr Collon's moral culpability, the Crown responded in a number of ways. First, the evaluation undertaken by her Honour involved a discretionary judgment. It was necessary, therefore, to demonstrate error in the exercise of that discretion, in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. According to the Crown, her Honour's assessment was plainly open to her. 33 Secondly, counsel then appearing for the applicant before her Honour, when answering the submission by the Crown that the offence was "well above mid range", submitted that it would be "mid range at worst" (T 7: 22.2.08). 34 Thirdly, there was plainly an intention to kill. Indeed, it had not been disputed during the sentencing hearing that Mr Collon intended to kill the victim, because it was beyond argument. The issue which her Honour was called upon to address was whether there was also premeditation having regard to the history of bad relations between the deceased and Mr Collon. Her Honour resolved that issue in Mr Collon's favour and thereafter determined that the matter was mid range. 35 Dealing with these submissions, there can be no question, even though her Honour made no express finding, that Mr Collon intended to kill the deceased. His intention was demonstrated by the ferocity of the attack, which culminated in slitting the victim's throat. Mr Collon told the police what he had done, saying he "stabbed him in the eye, then cut his throat". 36 The real issue was the moral culpability of the applicant in forming an intention to kill. I believe her Honour was acutely aware that Mr Collon was significantly impaired. She was also aware that he was intoxicated. She referred to each aspect in the paragraphs which preceded her conclusion, extracting the opinions of both psychiatrists, the evidence concerning Mr Collon's intoxication, and describing the circumstances in which his association with drugs and alcohol began. These were not matters overlooked. 37 In Mulato v Regina [2006] NSWCCA 282, the Chief Justice said this: (para [37]) "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 38 Simpson J made the following additional observations: (para [46]) "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. ..." 39 The finding by her Honour that the offence was mid range was plainly open to her. There was no error. I would dismiss Ground 1. Ground 2: The discount for the plea. 40 The complaint by the applicant in respect of Ground 2 arises from the following passage in her Honour's remarks: (ROS para [25]) "25 As to mitigating factors, Mr Winch submits that the offender has shown remorse, through his 000 call, his plea of guilty and also through evidence which he gave in the sentencing proceedings when he expressed his feelings of guilt for his actions. I accept that there is a degree of remorse and I take that into account. Much more significant is the offender's plea of guilty. Submissions have been made by both parties as to the timing of this plea, whether it was made at a reasonably early opportunity and the extent of its utilitarian value. I do not propose to go through these in detail. In realistic terms, the plea was made fairly late in the day. In my view a discount of 15% is appropriate." 41 It was submitted that the case was exceptional and warranted a full 25% discount. The applicant, according to his counsel, pleaded guilty to murder at the first reasonable opportunity, even though that was shortly before the matter was listed for trial. It was plain from the outset that there were mental health issues. They required investigation. Mr Collon was represented by experienced lawyers. They immediately recognised the issue. They made arrangements for Dr Carne, a forensic psychiatrist, to interview Mr Collon. They separately arranged for Associate Professor Wayne Reid, a neuropsychologist, to investigate the applicant's intellectual function. Dr Carne provided his report. He gave support to the defence of substantial impairment. The Crown was immediately provided with a copy of that report. Mr Collon, meanwhile, signified in the Local Court his preparedness to plead guilty to manslaughter, dispensing with a committal. The Crown, upon receipt of Dr Carne's report, arranged for the applicant to be seen by Dr Rosalie Wilcox. Dr Wilcox reported on 17 December 2007. However, her report for some reason was not received until 28 January 2008. Once received, it was immediately served by the Crown. She found significant impairment, but not substantial impairment. The Crown, in these circumstances, indicated that it pressed the charge of murder. The lawyers for Mr Collon immediately obtained instructions. The matter, by this time, had been set down for hearing on 18 February 2008. On 11 February 2008 the Crown was told that Mr Collon would plead guilty to murder. He did so on 18 February 2008. 42 Counsel for the applicant drew attention to a concession by the Crown before Mathews AJ. It was acknowledged that prudence required the investigation of these issues. The Crown added that the applicant was not to be criticised for exercising caution in relation to his plea. 43 That being the context, attention was drawn to the words of the Chief Justice in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, where he said this: (at 418) "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." (emphasis added) 44 The plea, according to the applicant, was at the earliest opportunity, having regard to the complex issues in the trial. Reference was made to the statement by Gaudron, Gummow and Callinan JJ in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 where their Honours said this: (at [20]) "The question whether it was possible for a person to plead guilty at an earlier time is not one that is answered simply by looking at the charge sheet. ... the question is when it would first have been reasonable for a plea to be entered." 45 Further, it was submitted that her Honour had undervalued the remorse displayed by Mr Collon and had overlooked the assistance that he had provided. Even his indication of a willingness to plead guilty to manslaughter, it was submitted, significantly cut down the length of the potential trial, removing all issues apart from the single issue of Mr Collon's mental state. 46 The Crown responded to these submissions by again pointing out that the evaluation of the discount for a plea of guilty involved the exercise of a discretion by the sentencing Judge. The principles had recently been restated by this Court in R v Borkowski [2009] NSWCCA 102, where Howie J (McClellan CJ at CL and Simpson J agreeing) said this: (at para [32]) "1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. ... 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448." 47 Here, whatever the reason, the plea was entered shortly before the trial was listed to begin. The trial itself was not complex. According to the Crown, the discount by her Honour of 15% was within her discretion and indeed was generous. The case of Cameron v The Queen (supra) concerned a kindred but different issue, namely facilitating the course of justice. Here Mr Collon had not signified his willingness to facilitate the course of justice until shortly before the hearing. 48 It was further submitted by the Crown that her Honour plainly made an assessment of remorse and did not overlook the assistance that Mr Collon had provided by his immediate acknowledgment of having stabbed the deceased. She made reference to both matters in her remarks. 49 Dealing with these submissions, it may be said at once that the lawyers for Mr Collon acted responsibility and with despatch. However, in resolving these issues, it is important to return to what was said by Spigelman CJ in Thomson & Houlton. The Chief Justice said this: (at 418) "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." 50 He added: "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 the 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 a plea." 51 So the determining issue remains the utilitarian value of the plea. As the date of trial approaches, that will diminish, unless the case is expected to be unusually long or complex. The Chief Justice, in the passage quoted, recognised that there may be exceptional cases (Thomson & Houlton, para [155]: supra para [43]). In cases, such as the present, where time has not been wasted, there is therefore scope within limits to give a discount greater than the 10% which you would expect for a late plea, there being only a modest utilitarian benefit. Her Honour in this case exercised her discretion to provide a 15% discount. That finding was well within her discretion. There was no error. I would dismiss Ground 2. Ground 3: Was the sentence manifestly excessive? 52 It was submitted on behalf of the applicant that the sentence was "so far above that appropriate" that error should be imputed (AS: para [51]). Reference was made to the early history of Mr Collon, as revealed by the Department of Community Services file. His neglect and mistreatment, his reduced capacity by reason of that treatment, his youth and his prospects of rehabilitation, make it appropriate that a lesser sentence be imposed. The sentence imposed was, in his circumstances, "crushing" (cf R v Israil [2002] NSWCCA 255). 53 However, giving full weight to each of these matters, the sentence appears to me to be well within range. Her Honour made a very significant discount from the standard non parole period, no doubt reflecting many of the matters relied upon by counsel for the applicant in support of this ground. 54 I would dismiss Ground 3. Order. 55 I therefore propose that leave to appeal be granted, but the appeal be dismissed. 56 JOHNSON J: I agree with Kirby J. ********** 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.