BAP v R [2024] NSWCCA 206
BAP v R [2024] NSWCCA 206 · Read the judgment on AustLII
Catchwords: Sentencing – Discounts – ‘Super’ call-over – Clarke Kent
In this decision the Court of Criminal Appeal (‘CCA’) has endorsed the proposition that a plea at a ‘super call-over’ may, in appropriate cases, attract a discount which is additional to the discount for the plea of guilty.
The applicant was sentenced in the District Court for three child sexual assault offences, with three more taken into account on a Form 1. The charges related to conduct when the applicant was variously aged 17, 21-22, and almost 24 years old.
He pleaded guilty at a “super call-over”, which is an innovation of the District Court in which, during a 1-2 week call-over, the Court lists all State (and some Commonwealth) matters which have a trial date in the next several months. The Crown allocates significant resources and senior staff to the cause of identifying any alternative pleas that can be offered, an individual judge is allocated to hear the matters, and the defence lawyers are all directed to attend (typically in person) to discuss the matter with the Crown and their client (who is typically also in person). Usually the judge conducting the call-over will also be the sentencing judge. The aim is to reduce the number of trials and, at least to that extent, there is an obvious benefit to the Court system as well as the accused and the community.
In the present case, the sentencing judge afforded the applicant a 10% discount for his plea of guilty. He was sentenced to 10 years, with a non-parole period of 6 years. He appealed on grounds including that the judge failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 (which provides a discretion to reduce a penalty in indictable matters where there has been a facilitation of the administration of justice by the offender). The appeal was brought notwithstanding no submission had been made on the applicant’s behalf that, because the plea was entered at a super call-over, the applicant had facilitated the course of justice in some way beyond the utilitarian value of the guilty plea, such as to warrant an additional benefit or discount.
The Court (Yehia J, with whom Wright and Cavanagh JJ agreed) observed that “super call-overs” are a highly effective way of managing the high volume of work in the District Court by reducing the matters that proceed to trial. That requires engagement from both prosecution and defence. In a particular case, the resolution of a matter may demonstrate an accused person’s facilitation of the administration of justice, over and above the utilitarian value of the plea. Each case must be decided upon its own facts and circumstances (at [61]).
In the present case, however, no such submission was raised in the District Court, and no additional factors were identified on the appeal which would lead to the conclusion that there was facilitation of the administration of justice in this case, beyond the utilitarian value of the plea and remorse (at [62]). This particular ground was duly refused, but the appeal was allowed on other grounds (not discussed here), and the applicant was resentenced to 7 years and 6 months, with a non-parole period of 4 years and 6 months.
Since it seems likely that super call-overs will continue for the foreseeable future, practitioners should consider whether in a given case the facilitation of justice may warrant an additional discount – noting also that the possibility of such an additional discount may offer some incentive for the plea in the first place.