Sampson v R [2025] NSWCCA 25

Sampson v R [2025] NSWCCA 25 · Read the judgment on AustLII

Catchwords: Sentencing – mandatory discounts – resulting sentences cannot be rounded to months or years

In this judgment the Court of Criminal Appeal (‘CCA’) has held that, unfortunate as it may be, the mandatory sentencing discount scheme requires judges to impose post-discount sentences which cannot be rounded to even months. It would appear many head sentences, at least, are set to become expressed in years, months, and days – notwithstanding that practice having previously been discouraged by the CCA.

The applicant pleaded guilty to intentionally causing grievous bodily harm with another offence on a Form 1. The plea was entered at a ‘super call-over’ in the District Court. The sentence imposed was one of 5 years with a non-parole period of 3 years, with the sentencing judge indicating a 10% discount for the plea of guilty, and an unspecified discount for assistance to authorities on the basis of the plea at the super call-over. The sentencing judge had proposed a starting point before discounts of 5 years and 6 months, discounted by 10% ‘with some rounding to even years’. The applicant appealed on grounds including that the sentencing judge erred in rounding down the discount of 10% in order to make the sentence one of even months.

The Court (Davies J, with whom Dhanji and Huggett JJ agreed, each with brief additional remarks) observed that whilst it was clear that the sentencing judge was allowing a discount under s 25D of the Crimes (Sentencing Procedure) Act, it was less clear what other discount had been allowed (at [35]-[37]). However, it was likely that his Honour had intended a discount under s 22A of the same Act, which has been held (in BAP v R [2024] NSWCCA 206 SUMMARY IN COLUMN PREVIOUSLY – DECEMBER 2024) to be available in super call-overs, and was assumed by the judges on this appeal to be available.

The Court observed that the discount scheme established for pleas of guilty in indictable matters is a mandatory scheme subject only to the two minor exceptions in s 25F(2) and (4) – and those exceptions were not relied upon by the sentencing judge in this case. As inconvenient as it might have been because the discount involved part of a month, the sentencing judge was obliged to provide the 10% discount stipulated in s 25D (at [43]). Previous decisions of the CCA going back as far as 2012 had discouraged the practice of imposing a sentence expressed in years, months, and days, on the basis that authority did not require a precise mathematical approach to the application of the discount. However, those decisions came either before the enactment of Division 1A of the Sentencing Procedure Act (which sets out the mandatory discount regime), or else had not made reference to that legislation (at [46]-[48]). However, it was now not open to the sentencing judge to round the discount, either up or down. The sentencing judge was obliged to discount his notional starting point by 6.6 months with the result that the sentence should have been 4 years, 11 months, and 12 days. In the circumstance of this particular case, it would then have been open to round that sentence down in order to afford the offender the ‘lesser penalty’ referred to in s 22A (at [49]).

For those and other reasons the appeal was allowed. The applicant was resentenced to a sentence of 5 years, from which he was allowed a 10% discount, making the sentence 4 years, 6 months. Notably, the Court in resentencing did round the non-parole period (only) down to whole months, as part of exercising its discretion to vary the ratio between the non-parole period and the head sentence (see [117]). No separate discount was ultimately allowed under s 22A, on the basis that it would have resulted in an unreasonably disproportionate sentence.

It follows that it seems to be mainly head sentences which are liable to become more complicated as a result of the requirement to give effect to precise sentences – although the same obligation would apply if the sentencing judge or magistrate declines to find that there are special circumstances in relation to the non-parole period. Practitioners may find it useful to bookmark a date calculator on the internet ready on their phone or computer for the day of sentence.