Case: R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225
Outcome: followed
I am of opinion Mr Vu was genuine in pleading guilty and that he promptly acknowledged that he had done something that was wrong. He has not made any attempt to seek to excuse himself from, or to evade, his responsibility for what he did. His statement to the Parole Service that he would pay whatever penalty the court imposed on him demonstrated that. I am quite satisfied that, in his plea of guilty at the earliest opportunity, he was doing what a basically honest person who has made a stupid mistake and engaged in a series of foolish and dishonest criminal acts could be expected to do once the cold light of day had exposed him to a recognition of his own wrongdoing. As Howie J said giving the reasons of the New South Wales Court of Criminal Appeal in R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225 at [12] : 'This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence.' 47 I am of opinion that this was a genuine guilty plea which Mr Vu made at the first available opportunity. Indeed, had Mr Vu been charged shortly after the first visits of the Federation officers, I am sure that his criminal conduct would have ceased then, although I cannot, and do not, take that into account. I reject the police's submission that I should give less than full weight to the plea of guilty. 48 Mr Vu did co-operate with the authorities to a degree, although, as the police pointed out, he made only admissions to hiring out copyright infringing DVDs and not to selling them to the Federation officers. It is not suggested that he concealed or hid any of the material which implicated him in his guilt for the offences. He readily made admissions relating to having purchased the counterfeit DVDs. He also pointed out to the police (when they executed the search warrant) where the counterfeit DVDs were and made admissions as to hiring them out. Although his co-operation was perhaps not as fulsome as his evidence has been today or his admissions to his Honour were, I find that he has co-operated to a significant degree with the authorities. There was evidence of some sales to the Federation officers. But, Mr Vu did not sell the counterfeits on any significant scale. Rather, the sales occurred infrequently from his stock of DVDs used primarily for the hire business. 49 Most significantly I must have regard to the deterrent effect that any sentence or order under consideration may have on Mr Vu. I am satisfied that Mr Vu knows he must be punished. The likelihood that he would re-offend is minimal to non-existent. 50 I am satisfied that the sentence I am to impose will adequately punish Mr Vu for his offences. In that regard I must have, as the police reminds me, regard to the strength of the police's case, the objective gravity of the offences, the need for general deterrence and the need for strong subjective deterrence. As I have said, the latter consideration is one which Mr Vu had accepted himself will be worked on him by a sentence of any kind. 56 Mr Vu has argued that the effect of imprisoning him even on weekend detention would be such as to work a very adverse result on his family. No doubt some embarrassment would be caused to him in having to explain to his children what he had done and why he was to spend time in gaol. His sense of shame at having to do this would be significant and would cause him considerable embarrassment. Nonetheless, the authorities make it clear that in approaching an assessment of the effect on Mr Vu's family and dependents I must interpret s 16A(2)(p) by having regard to whether these circumstances are exceptional: see R v Hinton [2002] NSWCCA 405 ; (2002) 134 A Crim R 286 at 293 [31] per Howie J with whom Wood CJ at CL and Sully J agreed. I am not satisfied that the matters on which Mr Vu relies are exceptional.