Doyle v R

1. [1]

   BELL CJ:

Introduction

1. [2]

   The applicant was subsequently committed to the District Court for sentence. In sentencing the applicant, the Court was asked to take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), a further offence of knowingly dealing with the proceeds of crime, in the sum of $520,300 (the Form 1 matter). That offence is contrary to s 193B(2) of the Crimes Act 1900 (NSW) and is punishable by a maximum penalty of 15 years’ imprisonment.

2. [3]

   On 4 September 2020, the applicant was sentenced to a term of imprisonment of eight years, commencing on 4 September 2019, with a non-parole period of five years. The sentencing judge indicated that she had afforded the applicant certain reductions to what would otherwise have been the appropriate sentence, by reason of his guilty plea, among other considerations. [2]

Did the sentencing judge err in her application of s 25D of the Sentencing Act?

1. [4]

   It was common ground that, as the applicant had entered a guilty plea in committal proceedings, he was entitled to a 25% sentencing discount pursuant to s 25D(2)(a) of the Sentencing Act. [3] The sole issue raised in this application for leave to appeal is whether the sentencing judge erred in her application of that section.

2. [5]

   Section 25D of the Sentencing Act came into effect on 30 April 2018, together with Division 1A of the Act of which it forms part. [4] It relevantly provides as follows:

3. [6]

   Section 25D is mechanical in the sense that a specified percentage reduction of the sentence that would otherwise have been imposed must be applied in the circumstances specified in the statute. No element of discretion is involved. By way of contrast, prior to the introduction of s 25D, the utilitarian value of an early plea of guilty was one of a number of factors that could be taken into account in the synthetic sentencing exercise.

4. [7]

   In her sentencing remarks, which related not only to the applicant but also to two co-offenders, the sentencing judge indicated that she had reduced the applicant’s sentence by 25% by reason of his early guilty plea. She explained this reduction in the following terms: [5]

5. [8]

   [Redacted by order of the Court] [6] , [7]

6. [9]

   On appeal, senior counsel for the applicant contended that in applying the s 25D discount the sentencing judge impermissibly ran together the “utilitarian value of the plea”, the applicant’s “acceptance of responsibility” and his “willingness to facilitate the course of justice”. He contended that in so doing, her Honour must have either failed to give effect to s 25D(2), which mandates a 25% reduction solely for the utilitarian value of a guilty plea entered in the circumstances set out in s 25D(2)(a), or, notwithstanding the language of her sentence remarks reproduced at [7] above, in fact gave no weight to the applicant’s “acceptance of responsibility and … willingness to facilitate the course of justice”.

7. [10]

   In support of this submission, reference was made to authorities decided before the introduction of s 25D, which have discussed all three concepts referred to by the sentencing judge, namely: the utilitarian value of a guilty plea; an offender’s remorse; and a willingness to facilitate the course of justice, which may be indicated by a guilty plea: see Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [114]–[123] (Thomson); Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [11]–[19] (Cameron).

8. [11]

   An early guilty plea may or may not involve or be motivated by or manifest remorse. It may be actuated by the mechanical benefit that a provision such as s 25D offers to an offender. As was observed by Spigelman CJ in Thomson at [117], a plea is of itself equivocal with respect to remorse. At [116], the Chief Justice had said, drawing a contrast with utilitarian benefits:

9. [12]

   On the other hand, a plea of guilty may be consistent not only with remorse but, as was observed by Gaudron, Gummow and Callinan JJ in Cameron, it may also and at the same time indicate acceptance of responsibility and a willingness to facilitate the course of justice: at [11]. Their Honours preferred the latter concept to the language of utilitarianism expressed in terms of the saving of the expense to the community of a contested hearing: see at [14]. This was on the basis that, as so expressed, it was apt, at least in some circumstances, to operate in a discriminatory way and thus to undermine the cardinal requirement that a person not be penalised for pleading not guilty.

10. [13]

    In Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [111], Simpson J (as her Honour then was) pointed out that:

11. [14]

    The applicant also referred to decisions of this Court which drew similar distinctions in the context of sentence reductions for guilty pleas to Commonwealth offences pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth): see Bae v R [2020] NSWCCA 35 at [57] (Bae); Lu v R; Huang v R [2021] NSWCCA 68 at [28]–[38]. In Bae at [57], Johnson J (with whom Walton J and I agreed) noted that:

12. [15]

    The simple but key point made by Mr Game SC, who appeared for the applicant in the current case, was that whilst an offender may show remorse, be willing to facilitate the course of justice and may, by his or her early guilty plea, make a utilitarian contribution to the criminal justice system, each of those matters is not synonymous with the other. An offender may, for example, qualify for a 25% discount because of an early guilty plea under s 25D but completely lack remorse. As I explained, in the context of Commonwealth offending, in Baden v R [2020] NSWCCA 23 at [16]:

13. [16]

    Following the introduction of s 25D, the utilitarian value of any guilty plea is quantified by that section in respect of state offences. If an offender also shows remorse and/or has manifested a willingness to facilitate the administration of justice, they are considerations to be taken into account quite separately from the utilitarian value of an early guilty plea.

14. [17]

    The Sentencing Act now explicitly differentiates between the utilitarian benefit of an early guilty plea (in s 25D) and the power conferred by s 22A “to reduce penalties for facilitating the administration of justice”. An offender’s remorse is specifically referred to as a mitigating factor in s 21A(3)(i).

15. [18]

    In my view, the applicant’s criticism of the “rolled up way” in which the sentencing judge dealt with the triple considerations of utilitarian value, remorse and willingness to facilitate the course of justice in that paragraph of her sentencing remarks reproduced at [7] above is well made. The language of s 25D(1) of the Sentencing Act makes it clear that sentencing discounts pursuant to that section are to be made solely “for the utilitarian value of a guilty plea” and no particular or individualised assessment of that utilitarian value is required. Rather, as explained above, the discount is fixed by the statute and operates upon an early guilty plea in the circumstances specified in the statute.

16. [19]

    The authorities referred to above establish that an offender’s acceptance of responsibility and willingness to facilitate the course of justice are conceptually distinct from, and require separate treatment to, the utilitarian value of a guilty plea. So much is reinforced by the language of the statute. The sentencing judge therefore erred in attributing the s 25D discount in part to the applicant’s “acceptance of responsibility and… willingness to facilitate the course of justice”. Rather, the utilitarian value of the applicant’s guilty plea alone entitled him to a sentencing discount of 25%, and his acceptance of responsibility and willingness to facilitate the course of justice ought to have formed part of the process of instinctive synthesis entailed in the sentencing process. Remorse was to be taken into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act, and the degree to which the administration of justice had been facilitated by the defence authorised a “not… unreasonably disproportionate” reduction of the penalty in accordance with s 22A.

17. [20]

    For the foregoing reasons, the ground of appeal is made out as the sentencing discretion was vitiated by an error of law: see House v The King (1936) 55 CLR 499; [1936] HCA 40.

Resentencing the applicant

1. [21]

   As the sentencing judge fell into error, this Court must now exercise its sentencing discretion for the purpose of determining whether a lesser sentence is warranted in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (Kentwell).

2. [22]

   Section 6(3) of the Criminal Appeal Act provides:

3. [23]

   In undertaking this task, the Court should take into account all relevant matters, including any evidence of the applicant’s rehabilitation since he was first sentenced: Kentwell at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

4. [24]

   The facts of the offending were the subject of agreement before the sentencing judge. The agreed overview of the facts was as follows: [8]

5. [25]

   A more detailed account of the facts, drawn from the statement of facts in the sentencing proceedings, was provided by the sentencing judge at [13]–[94] of her Honour’s sentencing remarks which it is necessary and convenient to reproduce:

6. [26]

   The sentencing judge found that, on the evidence presented, the offence to which the applicant pleaded guilty may not have been committed had the authorities not facilitated it. [9] On the other hand, her Honour noted, correctly, that the evidence in the agreed facts was overwhelmingly that the applicant was very willing to engage once the offer of a transaction was made to him. [10]

7. [27]

   The objective gravity of the offence was reflected in the fact that the quantity of the drugs contemplated by the transaction was 50 times the threshold for a large commercial quantity of cocaine. The seriousness of the offence is also reflected in the maximum penalty provided for the offence: see [1] above.

8. [28]

   The sentencing judge also correctly held that the applicant was the principal participant in the transaction and was motivated by greed. As summarised by the sentencing judge, over a five-month period the applicant’s conduct included: [11]

9. [29]

   The sentencing judge assessed the objective gravity of the offence as at the mid-range for an offence under s 25(2) of the Drug Misuse and Trafficking Act. In my opinion, although no drugs were in fact trafficked, the quantity of drugs anticipated to be trafficked by the applicant coupled with the conduct summarised in [28] above more than justified that assessment. Indeed, the degree of objective gravity could reasonably be assessed as being above mid-range. The fact that no drugs were in fact trafficked or distributed — a matter relied upon by the applicant in submissions on appeal — is not necessarily a matter that reduces moral culpability although it is undoubtedly a factor that may be taken into account: Taysavang v R; Lee v R [2017] NSWCCA 146 at [50]–[52], citing R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [97] and AB v R [2013] NSWCCA 273. As Johnson J observed in the latter case at [92]:

10. [30]

    In the present case, because of the nature of the operation, the drugs never existed, still less were disseminated into the community. That, too, is not in my opinion a mitigating factor. To treat it as otherwise would be a matter of serendipity for the applicant.

11. [31]

    I also do not accept the applicant’s submission that:

12. [32]

    On the other hand, the sentencing judge held that the applicant had very good prospects of rehabilitation and could become a contributing and law-abiding member of the community. There was no submission made that this Court, in resentencing the applicant, should depart from that assessment nor from the sentencing judge’s finding that the applicant demonstrated genuine remorse. As to this matter, the sentencing judge stated that: [12]

13. [33]

    Further, in the view of the forensic psychologist, Professor Stephen Woods, the applicant’s risk of re-offending was low. That assessment, too, may be accepted for the purposes of resentencing.

14. [34]

    The sentencing judge found that special circumstances existed in the applicant’s case, emphasising his youth and the fact that he would benefit from having a longer period of supervision on parole after an inevitably lengthy period in custody.

15. [35]

    There was also evidence, reinforced by further evidence led for the purposes of resentencing and referred to below, about the damaging effect the applicant’s incarceration has had and will have on his infant son, and the effect which that in turn has had and will have on the applicant and his wife. In R (Cth) v Milne (No 6) [2010] NSWSC 1467 at [223], Johnson J observed that adverse consequences on an offender’s family were the “regrettable and almost invariable consequence of … imprisonment”. In R v Girard [2004] NSWCCA 170 at [21] (Girard), Hodgson JA had said:

16. [36]

    The applicant, who is now aged 33, relied upon the following additional material for the purposes of resentencing:

    1. (1)

       an affidavit of the applicant, affirmed on 7 March 2022;

    2. (2)

       an affidavit of Mrs Kelsea Doyle, the applicant’s wife, affirmed on 7 March 2022;

    3. (3)

       a psychological report of Ms Leah Vircoe, dated 13 February 2022;

    4. (4)

       a psychological report of Mr Sam Borenstein, dated 30 August 2021; and

    5. (5)

       a psychological report of Professor Stephen Woods, dated 24 February 2022.

17. [37]

    It was submitted and, having reviewed it, I accept that this material supports the following additional findings:

    1. (1)

       that the applicant’s son, who is currently aged four years, is suffering psychologically as a result of his separation from the applicant, such separation being exacerbated by the effects of the COVID-19 pandemic and the applicant’s placement;

    2. (2)

       that the applicant’s wife is suffering considerably as a result of the applicant’s incarceration, particularly in the absence of any support from the applicant, [redacted by order of the Court] and her son is experiencing psychological difficulties due to his separation from the applicant;

    3. (3)

       that the applicant’s anxiety has increased as a result of the knowledge that his son is suffering psychologically, thus making his time in custody more onerous than would otherwise be the case;

    4. (4)

       that the applicant’s anxiety has increased [redacted by order of the Court], thus making his time in custody more onerous than would otherwise be the case;

    5. (5)

       that the conditions of the applicant’s incarceration are, as a result of the COVID-19 pandemic, more onerous than had previously been anticipated; and

    6. (6)

       that the conditions of the applicant’s incarceration are, [redacted by order of the Court], more onerous than had previously been anticipated, [redacted by order of the Court].

18. [38]

    [Redacted by order of the Court]

19. [39]

    [Redacted by order of the Court]

20. [40]

    Taking into account the 25% discount under s 25D of the Sentencing Act, [redacted by order of the Court], the objective seriousness of the offence to which the applicant pleaded guilty, the Form 1 matter, the applicant’s remorse, the assessment of his prospects of rehabilitation, the hardship to his family as amplified by the material summarised at [36]–[37] above (which I take into account in the way contemplated by Hodgson JA in Girard at [21]), together with the onerous conditions of the applicant’s incarceration as also amplified by the further evidence, and the same special circumstances as found by the sentencing judge (see [34] above), I am unable to reach a conclusion that any lesser sentence than that which was originally imposed is appropriate, notwithstanding the legal error which affected the reasoning of the sentencing judge.

21. [41]

    For these reasons, whilst leave to appeal should be granted, the appeal must be dismissed.

22. [42]

    BELLEW J: I have had the advantage of reading, in draft, the judgment of Bell CJ.

23. [43]

    I agree, for the reasons set out by his Honour, that the error for which the applicant contended has been established and that, as a consequence, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion.

24. [44]

    Bell CJ has set out the facts of the offending, the seriousness of which needs no further comment. I have taken into account the entirety of the subjective material and I agree with the findings made by Bell CJ (at [37]) arising from the additional evidence which was relied upon by the applicant before this Court for the purposes of re-sentence. However, it remains the case that there must be reasonable proportionality between the gravity of the offending and any sentence imposed. An offender’s subjective case, however powerful, must not be permitted to result in the imposition of a sentence which fails to reflect that gravity: Edwards v R [2021] NSWCCA 57 at [65]; Abousleiman v R [2021] NSWCCA 110 at [35]. In all of these circumstances I am not of the view that some lesser sentence is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW) s 6(3).

25. [45]

    I agree with the orders proposed by Bell CJ.

26. [46]

    IERACE J: I also agree with Bell CJ.