New South Wales Court of Criminal Appeal CITATION: CARMODY v R [2010] NSWCCA 323 HEARING DATE(S): 14 September 2010 JUDGMENT DATE: 16 December 2010 JUDGMENT OF: McColl JA at 1; Hulme J at 2; Latham J at 11 EX TEMPORE JUDGMENT DATE: 14 September 2010 DECISION: Leave to appeal granted. Appeal dismissed. PARTIES: Luke CARMODY Regina FILE NUMBER(S): CCA 2009/258668004 COUNSEL: D Arnott SC (Crown) M Dennis (Applicant) SOLICITORS: S Kavanagh Solicitor for DPP S O'Connfor Solicitor Legal Aid Commission NSW LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Murrell DCJ - 2 - IN THE COURT OF CRIMINAL APPEAL File No: 2009/158668004 McCOLL JA RS HULME J LATHAM J Tuesday, 14 September 2010 Luke CARMODY v R Judgment 1 McCOLL JA: I agree with Justice Hulme. 2 RS HULME J: This Applicant has applied for leave to appeal the sentence of Judge Murrell on 15 December 2009 in respect of a charge of robbery accompanied by the reckless infliction of actual bodily harm. Her Honour was asked to take into account on a form one the offence of recklessly causing grievous bodily harm to a second victim. The sentence imposed included a non-parole period of four years and two months and the balance of term of three years and the sentence was to commence on 19 April 2009. 3 There is only one ground of appeal advanced and that is that her Honour erred in her assessment of the utilitarian value of the plea of guilty. What her Honour said in that connection was this: "The plea of guilty was entered at an early stage although not at the earliest available opportunity. It was entered in the Local Court after the Crown produced DNA evidence linking the offender." 4 The background is that the offender says he has no recollection of the incident. In any event, the plea was entered at an early opportunity and, in my view, the appropriate discount did recognise the utilitarian value of the plea is twenty percent. 5 The complaint advanced on behalf of the applicant is that her Honour did not allow a discount of twenty five percent. In support of the complaint attention is drawn to passages in The Queen v Thompson and Hilton 2002 49 NSWLR 383 where, at paragraph 90, the Chief Justice, in quoting from a judgment in the South Australian Court of Criminal Appeal, referred to an acknowledgment of guilt "at the first reasonable opportunity" and at page 155 of that decision to a statement "at the top of the range, that is, of the ten to twenty five percent contemplated in Thompson would be restricted to pleas at the earliest opportunity". 6 The contention of the Applicant is that the earliest reasonable opportunity in this case for him to plead was after the DNA evidence was served. There is no detailed evidence of what the state of the Crown case was at the time the DNA evidence was served, whether there had been almost complete service of the Crown brief, no indication of how many times the matter had been before the Local Court prior to the service of the DNA evidence. 7 This Court has indicated on numerous occasions that the reason for a discount is the utilitarian value of the plea to the criminal justice system and in that connection the primary consideration is the timing of the plea. It is not the timing as such, though that will commonly be an indication of the utilitarian value of a plea, and there are obvious disadvantages in any suggestion that this Court should embark consideration after consideration of the precise state of preparation of a case at the time the plea is entered. 8 Thompson and Hilton makes clear that it is a matter within the discretion judicially exercised, of course, by the sentencing judge as to where in the range of ten percent to twenty five percent a discount will generally fall. Nothing whatsoever has been put before this Court which would indicate that her Honour erred in her discretion to an allow twenty percent rather than twenty five percent even if the evidence was such as to enable the conclusion to be drawn that the plea was entered at the earliest possible reasonable opportunity. 9 It seems clear it was certainly not entered at the earliest possible opportunity and I see no grounds at all for concluding that there was an error in the exercise of her Honour's sentencing discretion. Indeed, I wonder why this appeal, certainly if it was funded from the public purse, was brought. 10 In my view the leave to appeal should be granted but the appeal dismissed. 11 LATHAM J: I also agree with Justice Hulme. ********** 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.