R v Thomson; R v Houlton [2000] NSWCCA 309 (17 August 2000)
Last Updated: 27 October 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: R v THOMSON; R v HOULTON [2000] NSWCCA 309 revised - 6/10/2000
FILE NUMBER(S):
60705/99
60716/99
60237/00
HEARING DATE(S): 12 May 2000
JUDGMENT DATE: 17/08/2000
PARTIES:
Regina
David John Thomson
Edward Joseph Curtis Houlton
Attorney General for the State of New South Wales (Intervening)
Public Defender (Intervening)
JUDGMENT OF: Spigelman CJ Wood CJ at CL Foster AJA Grove J James J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
P G Berman with M Grogan (Crown/Applicant)
J Doris (Respondent Thomson)
T A Game SC with SJ Odgers (Respondent Houlton)
D G Dalton (Respondent Ramos)
T Buddin SC with Haesler (Attorney General (NSW))
J S Stratton (Respondent Carrion)
J Nicholson SC with AP Cook (Public Defender)
SOLICITORS:
S E O'Connor (Crown)
Neil J O'Connor and Associates (Respondent Thomson)
D J Humphreys (Respondents Houlton and Carrion)
John B Hajje & Associates (Respondent Ramos)
I V Knight (Attorney General (NSW))
CATCHWORDS:
CRIMINAL LAW
sentencing
sentencing guidelines
guilty plea
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900 (ACT)
Crimes Act 1914 (Cth)
Criminal Law (Sentencing) Act (SA) 1988
Penalties and Sentences Act 1985 (Vic)
Penalties and Sentences Act 1992 (Qld)
Sentencing Act (NT)
Sentencing Act 1995 (WA)
DECISION:
Adopt the guideline set out at [160].
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60716/99
60237/00
SPIGELMAN CJ
WOOD CJ at CL
FOSTER AJA
GROVE J
JAMES J
Thursday 17 August 2000
REGINA v Edward Joseph Curtis HOULTON
Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing judge to take into account the fact that an offender has pleaded guilty and when the offender pleaded guilty or indicated an intention to plead guilty. This reflects the longstanding practice of providing a sentence discount for a guilty plea.
The Crown asked the Court to promulgate a guideline judgment with respect to the discount for a plea of guilty in relation to State offences.
Need for a guideline judgment
On the material before the Court the objective of encouraging guilty pleas, especially early guilty pleas, is not being attained. A greater degree of transparency in the sentencing process is required to meet this objective.
Guideline
The following guideline is adopted:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
IN THE COURT OF
CRIMINAL APPEAL
60716/99
60237/00
SPIGELMAN CJ
WOOD CJ at CL
FOSTER AJA
GROVE J
JAMES J
Thursday 17 August 2000
REGINA v Edward Joseph Curtis HOULTON
1 SPIGELMAN CJ: The Crown asks the Court to promulgate a guideline judgment with respect to the discount for a plea of guilty, applicable to State offences generally. The Attorney General of New South Wales has intervened to make submissions to the same effect. The Public Defender was given leave by the Court to intervene and also made submissions generally supportive of a guideline judgment, though not in the same form contended for by the Crown and the Attorney.
2 As is the Court's practice with respect to guideline judgments, a number of cases raising the relevant issue were listed and heard together. The Court gave judgment in two of the cases without awaiting formulation of a guideline judgment. (R v Ramos [2000] NSWCCA 189 and R v Carrion [2000] NSWCCA 191. Judgment in the other two cases will be delivered simultaneously with this judgment R v Thomson [2000] NSWCCA 294; R v Houlton [2000] NSWCCA 183).
3 It has long been the practice of this Court that a plea of guilty should attract a lower sentence than would otherwise be imposed. Three reasons are usually advanced to justify the practice. First, the plea is a manifestation of remorse or contrition. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system. Thirdly, in particular cases - especially sexual assault cases, crimes involving children and, often, elderly victims - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.
4 In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 in a joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ the High Court validated the long standing practice of this and other courts, when their Honours said at [22]-[23]:
"A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
... It is proper for a sentencing judge to observe, in a particular case, that circumstances which might otherwise attract leniency are absent. A trial judge's reference to the absence from the case of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation ..."
5 The distinction between not increasing a sentence by reason of a plea of not guilty and granting of leniency by means of a discount from a plea of guilty has not always been regarded as acceptable. (See the cases considered in R v JCW [2000] NSWCCA 209 at [16]- [22]). Siganto affirms the significance and validity of the distinction.
6 In 1990 the New South Wales Parliament introduced s439 into the Crimes Act 1900. This section has now been re-enacted, in substantially the same form, as s22 of the Crimes (Sentencing Procedure) Act 1999. That section provides:
"22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court."
7 In the course of the Second Reading Speech introducing s439 into the Crimes Act, the then Attorney General, now Dowd J, said (Hansard Parliament of New South Wales Legislative Assembly 4 April 1990 at 1689):
"The aim of this bill is to provide appropriate encouragements to those who are guilty of an offence to plead guilty to that offence. A substantial amount of the time of the courts in this State is taken up in determining the guilt or otherwise of those who plead not guilty. As far less time is involved in sentencing a person than in determining their guilt, even a minor change in a guilty plea rate has a significant effect on court time required. The guilty plea rate would therefore free up court time to deal with the backlog of cases awaiting hearing. I hasten to add that it is not intended that anyone who is not guilty should plead guilty. That is a fairly rare occurrence among people who turn up at court. This is one reason that there should be appropriate encouragements for those who are guilty to plead guilty. Another, equally important reason is that a plea of guilty results in significant benefits to people involved in the criminal justice system. One example of these benefits is that witnesses avoid the often distressing experience of giving evidence. Another is the police are not tied up in court for the length of a trial.
The earlier an offender pleads guilty, the greater the benefits for the courts, victims, witnesses, police and others. Accordingly, this bill provides not only encouragement to plead guilty but also encouragement to indicate a guilty plea to the court as early as possible."
8 The Attorney went on to say at 1689-1690:
"Under the bill the court will not only be able to reduce the quantity of any sentence it would have imposed but for the guilty plea, it will also be able to reduce the severity of the sentence by imposing a sentence of a different nature. For example, a person who would have gone to prison for a full-time period of custody may receive a sentence of periodic detention because of an admission of guilt. Of course, the sentencing court will, as it does now, take care to ensure that a plea of guilty is appropriate in the circumstances. This will ensure that innocent people will not be pressured into pleading guilty. Experienced magistrates have shown that pleas of guilty are not automatically accepted when it is clear that the facts do not support the charge or there is some defect in the charge. There are some cases in which it would be inappropriate to reduce a sentence because of a plea of guilty. It is impossible to predict what sort of cases these will be but one example is where the offence is so serious that it is appropriate for the maximum sentence to be imposed despite a plea of guilty."
9 The Attorney concluded at 1690:
"If a court refuses to reduce a sentence it must give reasons for doing so. This reflects the intention of the amendments that a reduction will usually be given. The new provision is not intended to intimidate the bench. The bench has to make such decisions all the time. Reductions will be made in some circumstances and not in others. Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community."
10 The conflicting policy issues are highlighted in this Second Reading Speech. The courts in New South Wales have a statutory duty to address the question of reducing a penalty - whether by way of discount or by stepping down the hierarchy of severity of sentencing options. The reference in s22(1)(b) to an obligation to take into account "when the offender pleaded guilty" is to be construed as indicating that the earlier a plea is made or indicated, the greater the claim that an offender has to the exercise in his or her favour of the discretion to which the Act refers.
11 The appropriateness of a discount for a plea of guilty is reflected in legislation of all Australian jurisdictions, apart from Tasmania: Criminal Law (Sentencing) Act 1988 (SA) s10(g); Sentencing Act 1995 (WA) s8(2); Sentencing Act 1991 (Vic) s5(2)(e); Penalties and Sentences Act 1992 (Qld) s13; Sentencing Act (NT) s5(2)(j); Crimes Act 1900 (ACT) s429A(1)(u); Crimes Act 1914 (Cth) s16A(2)(g).
12 Section 22 of the New South Wales Act must, of course, be implemented by New South Wales courts. Nevertheless, there are limits to the pursuit of the public interest sought to be served by this section. Some parts of the community, like Aboriginal accused, may be particularly vulnerable to inappropriate pressures to plead guilty. A sizeable discount for a plea may increase such pressures. None of the parties appearing in these proceedings suggested that this was a matter of substantial concern in the practical administration of criminal justice in New South Wales. Nevertheless, it is a matter to which a court may need to be sensitive when leave is sought to withdraw a plea or an appeal is brought, notwithstanding a plea.
13 The general principle is well established. The issue before the Court is whether or not, in accordance with the current practice of the Court with respect to guideline judgments, the Court should provide guidance, including guidance of a quantitative character with respect to the size of the appropriate discount. Prior to the development of the system of guideline judgments, this Court has refused to issue guidance of a quantitative character with respect to this matter.
14 In R v Winchester (1992) 58 A Crim R 345 Hunt CJ at CL said at 350:
"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.
The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the `discount' allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.
Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case - discounts for assistance given to the authorities to one side - it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."
15 The issue before the Court in these proceedings is whether or not the Court should maintain the approach reflected in this judgment in the light of the material now before the Court and the practice of the Court with respect to guideline judgments as established in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
16 The submissions made to the Court proposed guidance of the following character:
(i) The Court should encourage trial judges to expressly address and quantify the effect of a guilty plea upon the sentence they imposed.
(ii) The Court, whilst acknowledging that there would be circumstances in which a plea would lead to a different sentencing option, should indicate a percentage range of discount for a plea of guilty.
(iii) Specific regard should be paid to the benefit of an early plea, perhaps by way of a graduated percentage, reducing the later the plea.
(iv) The Crown and the Attorney submitted that the discount range should encompass all considerations involved in the plea, namely: witness vulnerability and utilitarian aspects. The Public Defender, and other defence counsel, submitted that the discount should relate only to the utilitarian aspects.
Need for a Guideline Judgment
17 The basic proposition advanced in this Court in favour of the promulgation of a guideline judgment was that the objective designed to be attained by the longstanding practice, and by the express statutory provision, now found in s22 of the Crimes (Sentencing Procedure) Act 1999, was not being attained. Counsel appearing in these proceedings for the Crown, for the Attorney General, for the Public Defender and counsel for some of the individual Respondents, all indicated to the Court that there was significant doubt amongst practitioners that a substantial discount was in fact given by all sentencing judges and that there was particular scepticism as to whether an early plea was being appropriately recognised.
18 The collective experience of counsel appearing in these proceedings, together with that of those who instruct them, is entitled to considerable weight. The doubts expressed in this Court are undoubtedly manifest in the advice given to accused on a daily basis throughout the criminal justice system as to the benefit of pleading guilty and, particularly, the benefit of doing so at an early stage. The unanimity of the view expressed is itself a sound basis for this Court to act.
19 Furthermore, the Court had before it a research study undertaken by the New South Wales Bureau of Crime Statistics and Research which provided a body of relevant information. (Weatherburn and Baker Managing Trial Court Delay: An Analysis of Trial Case Processing in the NSW District Criminal Court New South Wales Bureau of Crime Statistics and Research (2000)). This study included a survey of defence representatives in every matter committed for trial in the New South Wales District Criminal Court and listed over a two month period in 1999, in the course of which a guilty plea was entered. The response to the survey was such as to encompass approximately 42 percent of all guilty pleas entered in matters committed for trial during the survey period.
20 Defence representatives were asked to give reasons for late entry of guilty pleas. The first four reasons were: late decision by the Crown to accept a plea to a lesser charge; defence being unable to discuss the matter with the Crown; defence difficulties in getting firm instructions; and, the client changing instructions just before the trial. However, the fifth most highly rated reason for late pleas, identified by defence counsel in this survey, was that there was no clear sentence benefit to the client in pleading any earlier. These five most frequently advanced reasons for a late change of plea, including lack of perceived sentence benefit, appear to apply irrespective of offence type or court location or bail status or other characteristics. This study is particularly valuable in informing the Court that there is a widespread perception of an absence of benefit from entering a plea at an early stage of the proceedings.
21 This perception is manifest in the result of the study that 60 percent of all guilty please are only entered on the day of the trial. There is every reason to believe that a significant proportion of those pleas could have been entered earlier. A number of interconnected reasons are advanced to explain this phenomenon. One is the perception of absence of benefit from an early plea.
22 The existence of widespread scepticism as to whether or not a guilty plea attracts a discount in practice, particularly whether or not an early plea attracts an additional benefit, confirms the study conducted by the Australian Institute of Judicial Administration at the request of the Standing Committee of Attorneys-General (Mack and Anleu Pleading Guilty: Issues and Practices AIJA (1995)). The authors of that study conducted interviews with prosecutors and defence lawyers in a number of States. The responses suggested that many accepted that a plea did give rise to a discount and that an early plea gave rise to a higher discount, but there was a considerable degree of scepticism indicated as to whether in practice this actually occurred.
23 The study noted:
"They observe that there is often a quantum of discount for an early guilty plea, but most qualified their comments by indicating that the discount exists `in theory', `in the appeal books', or in the words of a legal aid lawyer: `it's supposed to be a third ... the judge would actually say look I was going to give you six [years imprisonment] but I'm going to give you four. You wonder whether he would've given him six, but that's what they say'. And another legal aid lawyer says: `I haven't found, by running to trial that, the sentence goes up very much.' Only in South Australia is there a move towards judges explicitly quantifying the actual amount of any discount given." (p34)
"In our interviews, the general view was that the expected reduction in most jurisdictions is about 25-30%, though it can be higher, as much as 40-50% in some circumstances. However, there was substantial scepticism as to how much, if any, discount was actually given in a particular case, because of the practice of not stating the actual amount." (p164)
"A clear statement of the amount of the discount is necessary, otherwise the accused is left to wonder whether the benefit which was the inducement for the plea was actually conferred. This concern was expressed very strongly in many of our interviews, and in UK research." (p173)
24 The authors of this study did not support a discount for a plea, particularly a discount of any size. This is not a position that can be taken by this Court in the light of the statutory requirements to the contrary and long established authorities. The study does, however, confirm the existence of scepticism as to actual practice.
25 The Court was supplied with a number of statistics on sentencing outcomes for various offences from both the District Court and the Local Court, designed to establish that there was a pattern of inconsistency in sentencing after a guilty plea. Those statistics were presented in the form of the median sentence involving full time custody for a range of offences, comparing those in which there was a plea of guilty with those in which there was a plea of not guilty. With respect to a significant number of offences there was no apparent difference between the two categories. Indeed, in a number of cases, the median sentence for those pleading guilty was in fact greater than the median sentence for those pleading not guilty.
26 A similar analysis is contained in the report of the New South Wales Bureau of Crime Statistics and Research Managing Trial Court Delay at p37. That report suggests that the discount varies significantly amongst categories of offences and, in some cases, there is no discount.
27 The statistics presented in this respect are suggestive, but I have found it difficult to draw a conclusion that they establish any substantial degree of inconsistency amongst judges with respect to the weight given to a plea of guilty in the sentencing process. The statistics as presented take the entirety of the population sentenced for a specific offence and divide it into two categories: those who plead guilty and those who plead not guilty. In order to draw conclusions from a comparison between the treatment of these two groups, it is necessary to assume that the two groups did not differ between themselves with respect to other characteristics pertinent to the sentencing process. It does not appear to me that such an assumption is justified.
28 First, it appears to be quite likely that an accused with a significant criminal history is more likely to plead guilty than one without such history. This will distort the sentencing results because the prior history is a very pertinent matter, tending to increase the appropriate sentence in the case.
29 Secondly, the objective seriousness of the offences in the two categories cannot be assumed to be the same. In many instances guilty pleas occur in a context where the Crown accepts a plea to a lesser charge. It is often the case that the prosecution has put forward alternative charges of a lower degree of severity, in a context in which the facts are capable of making out an offence at different levels of gravity. In any such situation it is more likely that the objective circumstances of the offence will be at the highest level of gravity for the lesser charge. Accordingly, a plea of guilty to a lesser charge is likely to attract a higher level of penalty. The group of cases reflected in the not guilty pleas in the statistics presented to this Court, may be less likely to involve objective circumstances capable of satisfying a higher level of charge.
30 Thirdly, the statistics compare only those offenders who had been sentenced to full time custodial sentences. They make no allowance for the fact that in many cases other sentencing options could be, and were, chosen. It appears likely that the rate of imprisonment would be lower for those who plead guilty and, accordingly, the median terms of imprisonment for all of those sentenced for a particular offence after a plea will be higher than they would be if those who did plead guilty were as likely as those who pleaded not guilty to be sentenced to full time imprisonment. This lower instance of full time imprisonment after a guilty plea may have had a skewing effect.
31 Finally it is pertinent to note that with respect to many of the categories of offence presented to the Court, the number of people actually dealt with in the relevant periods was quite small, either generally or with respect to the number of sentences after a non guilty plea.
32 For these reasons the statistics relied on, whilst suggestive, cannot be regarded as establishing a pattern of inconsistency with respect to the allowance that should generally be made for pleading guilty.
33 I have, however, found to be useful the New South Wales Bureau of Crime Statistics and Research statistics which indicates that there is no benefit from an early plea. The kinds of differences to which I have referred above may explain why the two groups that plead guilty and not guilty are not equivalent in a number of respects which effect the ultimate sentence. It is more difficult to see why that should be so with respect to those who plead at committal distinguished from those who plead after committal. It may be that some are operative but not to the same extent as in the general case. Some reliance can be placed on these statistics.
34 The report of the Bureau does not make clear which offences are included in the various categories considered in the tables, nor the number of offences included in each category, nor the period covered by the tables. Nevertheless the results are revealing.
Table 9: Severity of penalty by stage of plea
Plea at committal Plea after committal Difference (%)
Median Median
Imprisonment prison Imprisonment prison Median
rate sentence rate sentence Imprisonment prison
(%) (months) (%) (months) rate sentence
Sex 59 18 65 24 -9 -25
Drugs 68 30 55 25 +24 +20
Fraud 41 24 36 18 +14 +33
Robbery 74 22 80 21 -8 +5
Assault 55 24 38 14 +45 +71
Break and enter 72 12 73 16 -1 -25
35 The authors of the report explain this table in the following way at p37:
"It shows that, while there were some modest discounts given to accused who pleaded early over those pleading late, in most cases the penalties, in terms of the imprisonment rate and the median prison sentence, were a great deal harsher for accused pleading early than for accused pleading later. In the case of assault, the imprisonment rate was 45 per cent higher and the median prison sentence was 71 per cent higher for accused entering early pleas than for those entering late pleas. Again considerable variation in the discount was evident between offences."
36 Accordingly the authors conclude at p38:
"This, then, is an area of law which would clearly benefit from reform. The statutory sentence discounts for guilty pleas obviously have an important role to play in encouraging early guilty pleas. However, there needs to be a significant discount for early guilty pleas and this needs to be applied consistently across different kinds of offences. ... Note, however, that the benefits of an early guilty plea need to be clearly communicated to accused persons at an early stage (in terms which do not place the accused under undue pressure to plead guilty) if they are to achieve their intended purpose."
37 This study is as good as can be made available, without an expensive and detailed research project. It strongly suggests that the degree of scepticism expressed in the interviews, and by counsel in these proceedings, as to whether or not an early plea attracts any benefit, is justified. This scepticism extends beyond the District Court considered in the study.
38 The material before the Court does not establish that, in general, a discount is not given for a plea of guilty or given inconsistently. It does however strongly suggest that there is doubt and, in any event considerable scepticism, as to the value of an early plea of guilty. This scepticism is undoubtedly reflected in the advice given to accuseds. This is of great significance for the achievement of the utilitarian objective designed to be served by the sentencing principle and by the statutory provision. It appears that a greater degree of transparency in the sentencing process is required if the objective of encouraging earlier pleas - reflected in s22(1)(b) of the Act - is to be attained.
39 The Crown submitted that a guideline judgment should be promulgated to change the practice and the perceptions in this respect, by:
(i) Requiring, or encouraging judges to expressly state that a discount had been given for a plea of guilty.
(ii) Requiring, or encouraging judges to quantify the extent of the discount.
(iii) Giving quantitative guidance to trial judges as to the amount, or range, of the appropriate discount, perhaps graduated in accordance with the timing of the plea.
Express Consideration by Sentencing Judges
40 The Crown submitted that this Court should state in a guideline judgment that where a sentencing judge has discounted a sentence because of a plea of guilty, the judge should say so expressly in the remarks on sentence. Whether or not a judge should quantify any such discount raises different considerations further considered below.
41 The Crown noted that s22 of the Crimes (Sentencing Procedure) Act 1999, and its predecessor in s439 of the Crimes Act 1900, only expressly require a sentencing judge to give reasons when not giving the offender a discount for his or her plea of guilty. However, subsection 22(3) states that the obligation to give reasons for not imposing a lesser penalty under s22(3), does not "limit any other requirement that a court has ... to record the reasons for its decisions."
42 Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a Court is to publish reasons for its decision, not merely to provide reasons to the parties. (See Kitto "Why Write Judgments" (1992) 66 ALJ 787; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 385-386; Public Service Board NSW v Osmond (1986) 159 CLR 656 at 666-667; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 273, 277-281; Spigelman "Seen to be Done: The Principle of Open Justice: Part 1" (2000) 74 ALJ 290 esp at 294, 295).
43 The statement of reasons performs particularly significant functions in the administration of the criminal law. As Brennan J said in Jago v The District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 50:
"The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances."
44 To similar effect are the observations of Sir John Barry (quoted with approval by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at [39]) concerning the criminal law that:
"It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just."
(See also Richmond Newspapers v Virginia [1980] USSC 154; 448 US 555 (1980) at 571-572 per Burger CJ).
45 In some cases, the weight given to a plea becomes of particular significance to the sentencing process. This may be the case, for example, in assessing the issue of parity between co-offenders. An express reference is of particular significance in such a case.
46 A plea of guilty is a matter which sentencing judges are obliged to take into account pursuant to express statutory provision and, indeed, at common law. As part of the duty of sentencing judges to give reasons for their decision, express reference to the fact that consideration has been given to this factor ought to be included in reasons on sentence.
47 As Gleeson CJ said, in R v Gallagher (1991) 23 NSWLR 220 at 230, with respect to the discount for assistance to authorities:
"A judge who extends leniency on the ground here in question should say that this is being done and why."
48 The observations by Priestley JA in R v Holder [1983] 3 NSWLR 245 at 268-269, to the effect that this Court has not intervened in many cases in which there was no express reference by the sentencing judge to an allowance for a plea, preceded the enactment of s439 of the Crimes Act which imposed an express statutory obligation with respect to this matter.
49 Hunt J said in Gallagher supra at 234C, with respect to the discount for assistance to authorities, the absence of any reference to the fact that a discount had been allowed "will in most cases inevitably lead to the conclusion on appeal that no such discount has been allowed".
50 Wood CJ at CL said in R v McCarroll [1999] NSWCCA 237 at [14]:
"Although it cannot be imagined, in the circumstances in which the plea was entered that it was overlooked, it was a subjective circumstance capable of operation in mitigation of sentence. As such, it was necessary for his Honour to have spelt out the way in which it was taken into account or, if discounted, to explain why that was so: Winchester (1992) 58 A Crim R 345 at 350-351, and see s439(2) Crimes Act 1900)."
(See also R v Ma [1999] NSWCCA 257; (1999) 107 A Crim R 252 at 254).
51 Similar observations have been made by the Court of Criminal Appeal in South Australia, extending in that case to an identification of the extent of discount. (See e.g. Seagrim v R (Supreme Court of South Australia Court of Criminal Appeal, 9 December 1994, unreported at p3); R v Sutherland (Supreme Court of South Australia Court of Criminal Appeal, 16 November 1992, unreported at p3).
52 The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations, such as that found in s16A of the Crimes Act (Cth) 1914.
53 It may not have been entirely clear prior to this judgment that the absence of reference to consideration of a guilty plea in the sentencing process would generally be regarded, on appeal, as an indication that a relevant consideration had not been given weight. In the course of formulating this guideline the Court has been asked to determine that such should be regarded as the case in the future. This is designed to overcome the problem that the evidence and submissions before the Court in these proceedings have identified, namely the extent to which practitioners do not accept that a guilty plea, particularly an early plea, is in fact taken into account by sentencing judges. As part of the process of overcoming this perception the Court should, in my opinion, adopt the approach as generally applicable to decisions on sentencing for State offences delivered after a reasonable period following the handing down of this judgment.
Quantification and the Instinctive Synthesis
54 There are two distinct but interrelated aspects of a guideline judgment, as proposed in the Crown submissions, involving matters of quantification. First, whether or not the Court should encourage trial judges to state the amount of discount, either in percentage terms or by an indication of the sentence that they would otherwise have imposed. Secondly, whether the Court should lay down a percentage, or range, for a discount for a plea of guilty and, if so, what matters of relevance to the sentencing process should be encompassed within any such percentage or range.
55 Each of these two aspects of the proposed guideline judgment would, if adopted, constitute qualifications on the approach to sentencing which has generally found favour in Australia, to the effect that it is undesirable to separately quantify any of the multifarious elements involved in the process of determining a final sentence (subject of course to express statutory provision). This Court has always recognised that the purposes of punishment include a wide range of incommensurable, and sometimes conflicting, objectives - deterrence, retribution, rehabilitation, and public condemnation - which must be brought together by a sentencing judge in what the Full Court of the Supreme Court of Victoria has aptly described as an "instinctive synthesis". (R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300). That judgment referred with approval to the dictum of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 555, that in the case of sentencing "the only golden rule is that there is no golden rule".
56 The inapplicability of any formulaic approach to the exercise of a sentencing discretion has frequently been emphasised. For example, McHugh, Hayne and Callinan JJ said in Pearce v The Queen supra at [46]:
"Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision."
57 The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
58 On occasions a statute may require a court to expressly indicate what sentence it would have imposed if certain events did not, or do not, occur. This is the case under s21E of the Crimes Act 1914 (Cth), where a court must specify the sentence that would have been imposed if the offender had not undertaken to cooperate with the authorities. There is no reason in principle why the common law principles of sentencing could not establish other such specific exceptions to the general approach, without altering the basic character of the process.
59 The different approaches are often expressed in terms of a contrast between the "instinctive synthesis" approach, on the one hand, and a "two-tier" approach to sentencing, on the other. This contrast has arisen in a number of different contexts, including:
· the separate identification of a sentence "proportionate" to the gravity of the offence and the actual sentence imposed. (R v Young [1990] VicRp 84; [1990] VR 951 esp at 954-5, 957, 960-961 per Young CJ, Crockett and Nathan JJ).
· the separate identification of a sentence appropriate to the objective circumstance of the case and the effect of mitigating circumstances. (R v Garforth (New South Wales Court of Criminal Appeal, 23 May 1994, unreported at 3-4 per Gleeson CJ, McInerney and Mathews JJ); R v Lett (New South Wales Court of Criminal Appeal, 27 March 1995, unreported at 8-9 per Hunt CJ at CL with whom Sully and Levine JJ agreed)).
· express credit for surrendering privileges, such as extradition rights. (AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [99] per Kirby J, contra [12]-[19] per McHugh J and [113]-[120] per Hayne JA).
· Discount for assistance. (R v Gallagher supra at 227-228, 230 per Gleeson CJ, 233-234 per Hunt J; R v Perrier (No 2) [1991] VicRp 37; [1991] VR 697 at 725-727 per McGarvie J (with whom Murphy J agreed), 728-731 per Brooking J (dissenting); R v Harris and Simmonds [1992] SASC 3624; (1992) 59 SASR 300 at 302 per King CJ; R v Nagy [1992] VicRp 45; [1992] 1 VR 637 at 643-645 per McGarvie J (dissenting)).
· Discount for guilty plea. (R v Beavan (New South Wales Court of Criminal Appeal, 22 August 1991, unreported at 12-15 per Hunt J with whom Badgery-Parker and Abadee JJ agreed); R v Holder supra at 258 per Street CJ and 270 per Priestley JA; R v Morton [1986] VicRp 82; [1986] VR 863 at 868 per Young CJ, King and Beach JJ at 868; Pavlic v R [1995] TASSC 96; (1995) 5 TasR 186; Verschuren v The Queen (1996) 17 WAR 467).
60 The proposition that a "two-tiered" approach to sentencing is erroneous has recently been supported by two judges of the High Court, McHugh and Hayne JJ in AB v The Queen supra. These were dissenting judgments, however only the judgment of Kirby J, esp at [99], suggests a different approach. The other members of the majority in AB, Gummow and Callinan JJ at [55], determined the case on the basis that legal error had been shown by reason of the failure to take into account considerations relevant to the sentencing process.
61 McHugh J referred to the Appellant's claim for a "discount" for the conduct that was relevant - waiver of the rule of speciality with respect to extraditable offences. His Honour said at [12]:
"... the claim could have validity only if sentencing was a process that involved a notional sentence which is then increased or reduced arithmetically according to individual factors relevant to the offence and the accused person."
62 His Honour approved the "instinctive synthesis" approach as expressed in Williscroft and referred to the conflicting objectives of sentencing. His Honour said [15]-[18]:
"The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks. ...
To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. ... If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case.
...
The factors bearing on the sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case ..."
63 Hayne J made express reference to the case of a guilty plea at [113]-[114] and referred to the submission made to the Court that a further reduction in sentence should have been afforded to the Appellant by reason of the waiver of his extradition rights. His Honour at [115]-[116] said there were several flaws in the argument as follows:
"First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant's remorse, the harm he has inflicted on his victims and society's denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence - in the end all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as `discount' or `allowance' must not be taken as suggesting that it can be.
Secondly, leniency may be given to an offender where to do so advances some policy of the criminal law. In any case in which an accused person waives his right not to be prosecuted for non-extradition offences it may be expected that his waiver would attract leniency. It may be accepted that there are powerful policy reasons for encouraging and rewarding such conduct. But they are the same policy reasons that operate in the case of confession to previously unknown crime. Waiver of rights will usually reveal remorse and contrition; the State is saved the cost of further protracted and expensive proceedings; the victims are vindicated without their having to suffer the ordeal of giving evidence at the trial. And as is the case where an offender confesses to previously unknown crime, it may be thought probable that no conviction would have been recorded had the offender not taken the step, as he did in this case, of waiving his rights."
64 Kirby J, however, said that an express reference to the credit was desirable and suggested that quantification was permissible. His Honour said at [99]-[100]:
"Unless the sentencing judge were to mark in a specific and express way the credit to which the appellant was entitled for having surrendered his privilege to insist on the rule of speciality under extradition law, the outcome of this case would not encourage others, in a like position, to act as he did. (cf R v Winchester (1992) A Crim R 345 at 350: `The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.') On the contrary, to the extent that the decisions of the sentencing judge and of the majority of the Court of Criminal Appeal became known to the legal profession, they would tend to reinforce the provision of advice to persons extradited to Australia, as the appellant had been, to confess to no further offences and to insist upon the strict observance of the privilege derived from the rule of speciality accorded to them by extradition law. That cannot be a result which is in the interests of the criminal justice system, of accused persons, of the victims of crime or of society. It is not, therefore, a result which a proper approach to sentencing would uphold.
Due and explicit regard ought to have been given to the significance of the appellant's waiver of extradition rights, i.e. his non-insistence on the rule of speciality. It was a consideration different from, and additional to, contrition, the clearing up of crime difficult to detect and the saving of public costs."
See also R v McDonnell (1997) 145 DLR (4th) 577 at 605-606 per McLachlin J.
65 The issue of a "discount" for a plea of guilty involves similar issues to those which arise in the context of a "discount" for cooperation with the authorities. The matter was the subject of consideration in this Court in R v Gallagher supra. In that case the submission was made that the trial judge was obliged to give a discrete discount which was either separately quantified or quantifiable for the assistance given. This Court held that it was not necessary to give a discrete and precisely quantified or quantifiable discount.
66 Gleeson CJ indicated that there had been judgments in which a discount of a specific character was quantified and there were authorities supporting the appropriateness of the two-tier process in some circumstances. Gleeson CJ concluded at 230:
"A judge who extends leniency on the ground here in question should say that this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by `tariffs' derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice."
67 Notwithstanding the forceful and persuasive reasons often expressed in favour of an "instinctive synthesis" approach - most recently by McHugh and Hayne JJ in AB - this passage in the reasons of Gleeson CJ in Gallagher indicates that there will be cases in which a specific element can be the subject of quantification, without turning the process into a mechanical or mathematical exercise.
68 However, as Gleeson CJ had also said earlier in his reasons at 227-228, it may not always be possible or appropriate to separate a particular element:
"As a matter of logic, I find it difficult to understand how it could be the case that it is always necessary, or always possible, to give a specific and separate discount of the kind referred to. The present case provides a good illustration of the difficulties involved. The authorities which discuss the relevant principles demonstrate that, where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be upon a number of grounds, at least some of which may overlap with other subjective matters to be taken into account in his favour. The considerations that are relevant are discussed in R v Perez-Vargas (1986) 8 NSWLR 559. There is what might be called the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. Public opinion seems to accept this as reasonable enough in a case where, for example, a middle level dealer in a drug operation provides information enabling the apprehension and prosecution of more senior persons in the organisation. The approach seems to be less readily accepted in some other circumstances, especially in cases where there is an identifiable victim of violent crime, or where imprisoned informers, sometimes of extremely doubtful reliability, are seen to be taking cynical advantage of a system which may lend itself to exploitation by the unscrupulous. However, those issues, whilst important, are not of immediate relevance. Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by co-operation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated. Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition for which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."
69 In a separate judgment Hunt J said at 233-234:
"... the reference in R v Cartwright (at 250) to the need for a substantial discount to be allowed (and to be seen to be allowed) does not mean that the discount for the prisoner's assistance to the authorities must in every case be shown as a precisely quantified or quantifiable period or percentage. As the Chief Justice has said, in some cases there will be an overlap between the `utilitarian' consideration of encouraging prisoners to give such assistance and what may be called the ordinary subjective features of remorse or contrition which such co-operation may also demonstrate. In such cases it may be difficult to identify a separate quantified discount for the former. In such a case, once the judge has determined that the assistance is a matter which should be taken into account, he or she will sufficiently be seen to be allowing a substantial discount for that assistance if a statement is made merely that it has been allowed.
... the Crown's desire to encourage similar assistance in other cases will adequately be served by such a statement.
Nevertheless, if a separate discount for assistance to the authorities can be identified, I would prefer that it be identified. I consider that a preference for such course to be followed (where possible), is supported by provisions such as s21E of the Crimes Act 1914 (Cth). But I agree with the Chief Justice that, subject to such a statutory requirement, it still remains a discretionary matter in each case whether the judge does so in that case.
I should emphasis that, whilst a judge cannot reasonably be expected to identify in his remarks on sentence every consideration which was taken into account in arriving at the particular sentence, the absence of any reference to at least the fact that a discount has been allowed for the prisoner's assistance to the authorities will in most cases inevitably lead to the conclusion on appeal that no such discount had been allowed."
70 This reasoning is of significance for the issue which has arisen in the present case between the Crown and Attorney, on the one hand, and the Public Defender and Defence counsel on the other. The latter proposed a guideline limited to the utilitarian benefits. The former seek to have the element of contrition included. As the reasons of Gleeson CJ in Gallagher show, it is the contrition aspect which is most likely to overlap with other matters relevant to the sentencing process, including other evidence of contrition.
71 For the reasons advanced in Gallagher, it will not be possible in every case to separate the utilitarian benefit from a plea from the contrition element or from other factors. Where, however, it is possible and appropriate to do so, Gleeson CJ concludes it is open for a sentencing judge to provide a quantification of the discount and Hunt J indicates it is desirable that it be done. A similar approach may be appropriate with respect to a plea of guilty.
72 As this Court has emphasised in previous guideline judgments (Jurisic supra at 220-221; Henry supra at [25]-[30]; R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 at [32]) a guideline is not binding in any formal sense. It does not constrain the exercise of the discretion. Accordingly, a guideline which indicates that sentencing judges should, where appropriate, quantify a discount for a plea operates by way of encouragement and not be way of prescription. The issue for this Court is whether it should encourage first instance judges to do so, where appropriate, as Hunt J did in Gallagher with respect to the discount for assistance. For the reasons given in Gallagher such encouragement is not inconsistent with an instinctive synthesis approach, particularly if limited to the utilitarian value of a plea.
73 The position in this State has hitherto been that it is not desirable to quantify a separate discount for a plea of guilty. This was articulated by Hunt J, with whom Badgery-Parker J and Abadee J agreed, in Beavan supra at 12 where, after his Honour identified the degree of leniency to be afforded by reason of a plea as depending on a number of different factors, specifically the elements of contrition and utilitarian value, his Honour concluded:
" ...it is quite impossible to identify any particular discount which is appropriate or which may usually be expected where a plea of guilty is entered. There is, in my respectful view, no conventional wisdom that a certain percentage will be allowed for such a plea."
74 His Honour concluded at 14-15:
"Sentencing is largely an intuitive process. It does not lend itself to the application of rigid formulas. The influences of the different factors to be taken into account in each case are infinitely various. In many cases, the different factors overlap and it would be almost impossible for a judge to identify the precise influence which any one factor has had upon the sentence ultimately imposed. Discounts for assistance given to the authorities, where they can be identified, may fall within a special category ... But, that category to one side, I regard it as both unnecessary and often unwise for a sentencing judge to identify a sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the discount which is thought to be appropriate with regard to that particular factor ..."
75 When his Honour came to repeat this reasoning in Lett supra at p9 his Honour added to the reference to specification of a discount as being "unnecessary" and "unwise", the following:
"It is unwise because it will only multiply the possibility of error, and it is unnecessary because it will inevitably increase the incidence of arguable appeal points."
76 In this regard his Honour's reasons appear to coincide with the reasons of the Full Court of the Supreme Court of Victoria in Morton supra at 868 where their Honours noted the statutory provision requiring the Court to state the fact that a reduction for a plea of guilty had been given, and added:
"The requirement is to state the fact not the amount of the reduction and although there is nothing to prohibit a court's stating the amount of the reduction, it will generally be impossible or misleading to do so unless a similar quantification is placed upon all the other elements or considerations that have led to the calculation of the sentence actually imposed. Indeed it would generally be highly undesirable to do so."
77 Hunt CJ at CL returned to the issue of the undesirability of quantification in R v Winchester supra and I repeat what his Honour said at 350:
"Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case - discounts for assistance given to the authorities to one side - is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."
78 The issue for this Court is whether this approach should be continued in the light of the material now presented to the Court that the objective of encouraging early pleas is not being attained in this State. An alternative is to adopt the approach that the Court has taken in the analogous area of discount for assistance to authorities.
Interstate Practice
79 The position in Victoria has traditionally been one of hostility to any "two-tiered" approach, subject of course to statutory modifications.
80 The Victorian Court of Criminal Appeal reaffirmed its opposition to a "two stage" sentencing process in R v O'Brien (1991) 55 A Crim R 410. The Court reaffirmed the approach in Williscroft and Young, but noted that the position may be qualified by statute.
81 The Court went on to refer to the analogous matter of a discount for cooperation with the authorities and specifically to the majority decision in Perrier (No 2) supra. The Court said at 415:
"Courts that have dealt with this aspect of punishment have on occasion referred to the need for the offender to know of the fact of such a reduction having been made and even the extent of it. The adoption of such an approach in the case of an informer whose services it might be thought should deservedly be reflected in his sentence may thought to be in conflict with the Court's opinion expressed in Young's case. That would be so if effect were given to this sentencing factor disengaged from a consideration of the other sentencing factors ... ."
82 The Court noted that Gleeson CJ in Gallagher supra at 229, recognised that the approach of the New South Wales Court of Criminal Appeal and of the South Australian Court, differed from the Victorian approach in Young's case. The Court approved Brooking J in Perrier (No 2) supra at 727-728 and concluded at 416-417:
"The benefit to the community of an informer's co-operation is just another factor relevant to the selection of a proper sentence to impose. The extent to which that benefit will command clemency will vary greatly. In some cases it may be so great that in reflecting it the sentence may be very much less than might otherwise be the case. To attempt to govern the exercise of the sentencing discretion by reference to a tabulated scale of reductions in percentage or other terms is, we think, wrong in principle. It is also in conflict with authority by which we are bound. Immediately following the passage from Williscroft which we have cited the court went on to say:
`Moreover, in our view, it is profitless (as it was thought to be in Kane's case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination.'
As we understand it that passage represents the law in this State. In some cases it may be thought that public policy requires publication in the judge's sentencing remarks of the actual extent by which a sentence has been reduced by reason of some identified extenuating factor. That may be so. But we think that the occasions for departure from accepted sentencing practice on such a ground will be rare and reasons should be expressed for any such departure."
83 Notwithstanding this approach, the Victorian Court of Criminal Appeal has found quantification by a trial judge not to constitute appellable error. In R v Tierney (1990) 51 A Crim R 446, the trial judge had identified the sentence he would have imposed but for the plea of guilty. One ground of appeal was that this was impermissible because it adopted a two stage structured approach which was inconsistent with the "instinctive synthesis" approach for determining the appropriate sentence. Crockett J, with whom Fullagar and Hampel JJ agreed, rejected the submission. At 448 his Honour directed attention to the statutory provision in s4 of the Penalties and Sentences Act 1985 (Vic) which required the Court to take this matter into account and doubted that the process of determining an appropriate sentence and reduction for the guilty plea involved a two stage process. Crockett J at 449 interpreted Morton as holding that it was permissible for a sentencing judge to state the amount of the reduction. Although it might be undesirable to do so, there was no prohibition upon that course.
84 In R v Nagy supra Crockett and J. D. Phillips JJ affirmed that the intuitive synthesis approach was inconsistent with quantification of a discount for assistance. McGarvie J in dissent in this respect, gave detailed reasons for identifying the specific discounts for assistance to authorities, at least in certain cases such as that of drug couriers. McGarvie J noted at 645-646 that it was always open to a sentencing judge to approach the sentencing task by selecting an appropriate sentence before discount and reducing it by a specified amount of the discount. His Honour referred to the decision of this Court in Gallagher supra, where Gleeson CJ and Hunt J indicated that it was open but not obligatory for a sentencing judge to indicate a discrete quantifiable discount.
85 The reasoning of McGarvie J in Nagy with respect to the discount for assistance to authorities is relevant to a discount for the plea of guilty, particularly if the utilitarian value of the plea is considered separately from contrition. His Honour said at 649-650:
"Quantifying the total discount involves little more than determining the sentences and non-parole period the applicant deserved when first apprehended and those now deserved in the light of his subsequent co-operation with the law enforcement agencies and pleas of guilty. In my view there is nothing about this case which makes it in any way misleading to state the amounts of reduction without placing a similar quantification upon each of the other elements or considerations that have led to the calculation of the sentences and non-parole period finally selected.
The factors for which discounts are allowed to the applicant are of a kind which naturally distinguishes them from the factors relevant to fixing the sentence otherwise appropriate. The discounts are given partly to recognise and give the applicant sentencing advantage for his conduct after apprehension in relation to investigations and proceedings against him and others ... The informer's discount is given in acknowledgment of the necessity for encouraging people to inform ... A discount is less effective to encourage conduct by other offenders if they do not become aware of what discounts have been allowed or what the sentences would have been without them.
...
For reasons which I stated in R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717, I consider that one of the most effective ways of the courts protecting the community from the damage done by such crimes, is by sentencing so that it becomes known that a courier apprehended in the circumstances of the applicant faces a heavy sentence unless co-operation with the authorities is forthcoming, but co-operation of a high order as an informer will earn a high discount: and that the best way of letting this be known is by exercising the discretion, where practicable, of stating the sentence which would otherwise have been imposed and the amount of the discount reduction."
86 In Queensland the Court adopted a similar position to that of Victoria. De Jersey J (McPherson J concurring) said in R v Harman [1989] 1 Qd R 414 at 421:
"I consider ... that the concept of identifiable discounts is wholly inappropriate.
One could envisage the emergence of a pattern of such discounts were they specified. Prisoners would rely on them, and perhaps found unreasonable expectations upon them. Attention could tend to focus on the pattern or scale, rather than upon particular circumstances. Such a situation could lead to rigidity, and in a practical sense, impose fetters on the sentencing discretion.
In cases where such matters as pleas of guilty, remorse, saving of public resources, etc., are considered relevant, it is enough that the sentencing judge takes account of them in determining the sentence ... Although I do not of course purport to lay down any rule, in the ordinary case it would not, I think, be generally helpful to specify, in terms of a time period, the particular extent to which such factors have operated to reduce the sentence which would otherwise have been imposed."
87 In R v Corrigan [1994] 2 Qd R 415, the Queensland Court of Appeal reconsidered the position after passage of s13 in the Penalties and Sentences Act 1992 (Qld) which required a court to take into account a guilty plea and conferred a discretion "to reduce the sentence that it would have imposed". Subsection 13(3) imposed an obligation to "state in open court" that the guilty plea has been taken into account.
88 Macrossan CJ and Lee J said at 416:
"It is obviously desirable for a sentencing court to state specifically how it is reducing a sentence when it purports to do so. If an appeal is subsequently brought and it is contended that the sentence imposed is excessive because there has been no sufficient reduction made, the question whether there has, in truth, been a reduction at all and also whether the reduction is sufficient will be considered by the appeal court."
89 On the materials before the Court, it does not appear that any practice has developed in Queensland of quantifying a sentence discount. It is not clear to this Court to what extent the remarks in Corrigan have led to a qualification of the earlier observations in Harman.
90 The position in South Australia is that the Court of Criminal Appeal encourages trial judges to indicate the extent of the discount given for a guilty plea. In R v Sutherland (Supreme Court of South Australia Court of Criminal Appeal, 16 November 1992, unreported) King CJ said:
"This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the state to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal list. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.
General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account.
I think that this court should actively encourage sentencing judges to take that course.
It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight. That can only be judged by assessing what would have been a reasonable sentence if there had been no plea of guilty, and comparing it with a sentence actually imposed."
91 King CJ also said in R v Harris & Simmonds supra at 302:
"This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive the guilty persons to plead guilty, it is necessary that they, and their advisers, have a clear idea of the sort of discount that will be made on that account."
92 To similar effect, in R v Charnley (Supreme Court of South Australia Court of Criminal Appeal, 18 August 1994, unreported) Pryor J with whom Olsson and Perry JJ agreed said:
"It is to be noted that neither Judge indicated what sentence of imprisonment would have been imposed had there not been a plea of guilty. This Court has said on a number of occasions that sentencing Judges should do that. People admitting crimes are to be given some proper discount for a plea of guilty, more so the sooner that it is made. They should be told what it is."
(See also Seagrim v R supra per King CJ at p3).
93 As a result of this guideline by the Court of Criminal Appeal in South Australia, South Australian sentencing judges generally reveal in their remarks on sentence the extent of a discount given. (See e.g. R v Rooke (Supreme Court of South Australia Court of Criminal Appeal, 19 June 1998, unreported); R v Colbert (Supreme Court of South Australia Courrt of Criminal Appeal, 20 August 1998, unreported); R v Hann (Supreme Court of South Australia Court of Criminal Appeal, 17 August 1998, unreported); R v Perre (Supreme Court of South Australia Court of Criminal Appeal, 20 October 1997, unreported)).
94 The Court of Criminal Appeal of the Supreme Court of Tasmania considered this issue in Pavlic v The Queen supra. In that case Green CJ and Wright J concluded that no separate quantifiable discount needs to be given for a plea of guilty. Slicer J however came to a different conclusion. Green CJ at 191 described the submission that a plea of guilty and assistance should be reflected in a nominated percentage "discount" as a "formalised approach". His Honour said:
"Considerations of this kind are no different in kind from and should be treated in the same way as all the other considerations which are relevant to the exercise of the sentencing discretion. It is not regarded as appropriate to reflect the other aggravating and mitigating circumstances relevant to sentence and a list of premiums or discounts each expressed as a percentage and I can see no reason why mitigating circumstances arising out of remorse, a plea of guilty or assistance given to the police should be treated differently."
95 To similar effect Wright J concluded at 193:
"To achieve a just result in any case, all relevant mitigatory facts must be considered and weighed in the balance along with the facts, circumstances and features of aggravation (if any) relied on by the prosecution. Included in this process is the fact, if it be a fact, that the offender has pleaded guilty. The weight of that plea may vary greatly in the evaluative process undertaken by the court. It would be clearly wrong, in my view, to assess sentence on the basis of all known facts excluding the plea of guilty, arriving thereby at an `appropriate' sentence and then, as a separate process, to discount that sentence by an identifiable percentage or fraction to produce the final or effective sentence. In my opinion there is no justification for treating the guilty plea in this specialised way. It is a factor deserving weight, but it is not weight that can or should be assessed as a separate secondary process. All mitigating features must be considered but none justifies or requires a specific quantified discount."
96 Slicer J adopted a different approach. His Honour accepted that the "instinctive synthesis" approach to determination of sentence was the basic methodology adopted by Australian Courts. (See e.g. at 200 and 201-202). Nevertheless his Honour distinguished the effect of the plea on the contrition element, from its utilitarian value. The later he referred to in terms of "administrative and social efficiency" and indicated that it, together with the issue of a discount for cooperation with authorities, raised different considerations. He said at 200 that these two matters:
"... involve consideration external to the particular circumstances of the case. The assessment of mitigating effect is dependent on the value of the information proffered, the economic savings afforded the community and like matters."
His Honour added:
"... it should be recognised that the factor is one that differs from the historical basis of determination of penalty. It should be seen as an expression of public policy extending beyond the particular case under consideration. ...
The adoption of the social utilitarian rationale is preferred because it is difficult to reconcile the acceptance of plea with the existing principles determining punishment. If that be correct, then it should be recognised and applied as a separate matter extrinsic to the subjective factors arising from the circumstances of the case itself."
97 Accordingly, his Honour, whilst generally expressing his agreement with an intuitive synthesis approach to the determination of sentences, so that it was undesirable to quantify a level of discount for separate elements, added at 205:
"Nevertheless, it is not inappropriate in cases where for policy reasons a discount is afforded, for the sentencing court to state what effect was given the plea. The sentence could first be determined in accordance with the `intuitive synthesis' methodology and stated. Then reference could be made only to those factors external to the circumstances of the case, namely degree of social or public utility, their import then identified and their significance expressed. This should permit an analysis as to whether sufficient significance was afforded the plea."
98 These issues have most recently been considered in Western Australia in Verschuren v The Queen supra. Malcolm CJ made it clear at 469 that there was no tariff or fixed percentage applicable to a discount for a plea of guilty. His Honour referred with approval to prior authority in the Court in which an early plea of guilty under that State's "fast track system" attracted a discount of the order of 20-25 percent and 30-35 percent. His Honour noted that there were different views expressed in the Court as to whether a sentencing judge should inform the offender of a specific figure or percentage of the reduction on account of plea. His Honour also referred to the divergence of views in other courts, e.g. Perrier (No 2) and Pavlic. His Honour identified the "intuitive synthesis" approach and also referred to the judgment of Gleeson CJ and Hunt J in Gallagher and of McGarvie J in Nagy. His Honour indicated that he agreed with the conclusions of Slicer J in Pavlic supra at 206 that a two stage process was appropriate and that, initially, a sentence should be determined in accordance with the "intuitive synthesis" approach and a second stage could apply utilitarian considerations based on public policy. Malcolm CJ added at 473:
"Public policy considerations which apply to co-operation with the authorities extend also to a plea of guilty in appropriate circumstances. I consider, however, that a need for a qualification arises where a finding of genuine remorse has also been made. This is a subjective circumstance. It should be taken into account at the first stage."
99 In this regard his Honour appears to have been referring to the reasoning of Gleeson CJ and Hunt J in Gallagher to the effect that here is frequently an overlap between issues of contrition and the public policy issues involved. Malcolm CJ's ultimate conclusion, at 474, was to the same effect as that of Hunt J in Gallagher:
"In my opinion, however, recognising that it is a matter for discretion of the individual judge, it is clearly desirable that the discount be quantified wherever it is practicable to do so."
100 Pidgeon J reached a similar conclusion. At 474 his Honour held:
"I consider, however, that it is of importance for the sentencing judge to make it clear to the person being sentenced that he or she is receiving a significant discount for an early plea. This is one reason for the way of giving the discount for which the Chief Justice has indicated a preference. The advantage in doing it this way is that the person being sentenced realises he is receiving a discount and it makes it easier to review the sentence."
101 His Honour went on to refer to the West Australian legislative scheme for a "fast track" and concluded at 475:
"I would see it as being inherent in the legislation, and the reason for the enactment of the legislation, that discounts of the type to which I have referred are given and are seen by the offender to have been given. For my own part I would see the best way as being the way for which the Chief Justice has expressed a preference. It may not always be appropriate for it to be done this way and I would not see it as obligatory to do it this way."
102 Murray J was of a different view. His Honour summarised the judgment of Malcolm CJ at 481 in the following terms:
"After review of various relevant authorities Malcolm CJ makes it clear that he considers the two-tiered approach to be preferable for reasons which, as I understand them, if his Honour will forgive the summary, include the following -
(1) To quantify the reduction enables the offender to know what credit he has received.
(2) By that means, other offenders may be encouraged to plead guilty or offer co-operation and information.
(3) To quantify the discounts enables proper comparison between the case of the particular offender and a co-offender who has not earned such a discount.
(4) For such reasons of parity and otherwise, the quantification of the discount may aid consideration of the case by an appellate court.
His Honour does not say that a sentencing judge will err if, in the process of arriving at his or her sentence, such discounts are not quantified, but as he expresses a clear preference for the two-tiered approach I think it is incumbent upon me to express here the view about that to which I have referred on other occasions."
103 His Honour went on to indicate his disagreement with any form of two-tiered approach. He invoked the "instinctive synthesis" terminology from Williscroft, emphasising the complexity of the relationship of the various factual matters relevant to sentencing. His Honour said at 482:
"The complexities involved, in my opinion, make it almost invariably doubtful that a specific quantification of the influence of the factor under consideration may be meaningfully expressed in the process of arriving at the proportionate sentence finally pronounced."
104 His Honour noted that in Punch v The Queen (1993) 9 WAR 486 the Full Court of the Supreme Court of Western Australia concluded that a two-tiered approach of itself did not demonstrate sentencing error.
105 His Honour referred to the judgment of Slicer J in Pavlic with which Malcolm CJ had expressed approval and said at 491:
"It is clear from the earlier part of his judgment that by `factors external of the circumstances of the case', his Honour meant to identify the matters affecting the degree of assistance to the process of the administration of the criminal law which the plea or cooperation provided had afforded, rather than those `subjective' matters such as the intention or motivation of the offender, which might be regarded as personal to him or her. For my part, with respect, I can see no advantage in separating out some of the matters attendant upon the making of a plea of guilty or the provision of assistance to the police and prosecuting authorities and identifying their impact upon the sentencing process separately from other relevant factors."
Murray J concluded at 491:
"... I would take the view that it is neither an error of principle to adopt a two stage or two-tiered approach to the fixing of sentence, nor to decline to do so. In passing sentence, a judge has the well recognised obligation to explain what he or she is doing so that the process may be understood by both the offender and the community at large. That is not a task which can meaningfully be performed by identifying each or any particular factor, whether of an aggravating or mitigating kind, and whether concerned with the circumstances of the commission of the offence or the circumstances personal to the offender, and then endeavouring to describe in quantified terms the impact of that factor upon the sentencing process."
106 In subsequent decisions, the Court of Criminal Appeal of the Supreme Court of Western Australia has referred to Verschuren as neither requiring a two stage approach to be adopted, nor holding that it would be an error to fail to adopt such an approach.
107 In Doherty v The Queen (Supreme Court of Western Australia Court of Criminal Appeal, 14 October 1997, unreported). Franklyn J with whom Malcolm CJ and Steytler J agreed emphasised that the quantification of a discount was a matter of discretion. His Honour said:
"Whether the recognition of such discount is effected by the sentencing Judge specifying its amount, or by specifying an overall deduction for mitigatory matters including such a deduction, or, by informing the offender that an appropriate deduction has been made, or, in some other way that his early plea has been taken into account in fixing the sentence imposed, is an exercise of discretion and so must remain a matter for the individual Judge, as must the extent of the discount he allows."
108 In Scott & Massey v The Queen (Supreme Court of Western Australia Court of Criminal Appeal, 15 January 1999, unreported), Murray J said:
In Verschuren v R (1996) 17 WAR 467 this Court held there was neither an error of principle to adopt a two-stage or two-tiered approach to sentencing, nor to decline to do so. If such an approach is found by a sentencing Judge to be useful in a particular case, then some degree of quantification in broad terms of the impact on the sentencing process of particular matters of aggravation or mitigation may be attempted and might assist to discharge the court's duty to explain the sentencing process in the particular case, but it cannot be in error to decline to take that approach and it cannot be an error to fail to do so with any mathematical precision.
In my respectful submission it is particularly important to bear in mind at all times that the act of sentencing is an act of the exercise of judicial discretion of considerable gravity and difficulty."
(See also James v R [2000] WASCA 100 at [52], Dailey v R [2000] WASCA 158 at [5]).
109 The preponderant, but not unanimous view, in the Australian authorities is that it is always permissible and sometimes desirable for a trial judge to quantify the discount accorded for a plea of guilty. Some judges have indicated an opinion that it is usually desirable to do so. Different views are open as shown above.
110 In this respect there is no reason why the position in each State should be the same, particularly with respect to the utilitarian benefits of a plea. The relationship between the demands upon, and the resources available, to the criminal justice system will vary from one State to another. The practice of the criminal bar in advising on such matters will also differ. In this respect, variation of practice is not necessarily undesirable.
111 I note that these proceedings are not concerned with Commonwealth offences and the Commonwealth Director of Public Prosecutions did not participate in them. These reasons are not intended to be applicable to Commonwealth offences.
112 In view of the evidence before this Court which establishes that the objective of encouraging early pleas is not being attained, this Court should adopt a guideline designed to ensure that offenders, and those who advise them, will know that in this State a discount for a plea is in fact given on a systematic basis and that the earlier the plea, the greater the benefit. This objective will best be served if sentencing judges adopt the practice of quantifying the discount and relating the quantification in some way to the timing of the plea. This Court should promulgate a guideline which encourages sentencing judges to do this.
113 As Gleeson CJ and Hunt J said in Gallagher it will not always be possible or appropriate to specify a discount for a plea. Whether or not it is possible or appropriate is a matter for the exercise of the discretion of the sentencing judge. This Court should go no further than encouraging judges to do so. For the reasons discussed below, this encouragement particularly relates to the utilitarian benefit of a plea, where it is appropriate to separately deal with that element. This should not inhibit a trial judge, where she or he thinks it appropriate to do so, to take another course, including quantifying a discount for all aspects of a plea.
Separate Treatment of Utilitarian Value
114 The Crown and the Attorney both submitted that any quantitative guideline on a discount should encompass all aspects of the sentencing process reflected in the single act of the plea. The Public Defender and counsel appearing for the Respondents submitted that any guideline should be restricted to the utilitarian benefits, leaving the question of remorse or contrition to be dealt with together with other subjective considerations.
115 There is considerable force in the proposition that the combination of utilitarian elements with remorse and witness vulnerability involves the addition of incommensurable factors. The benefits to the criminal justice system as a whole, which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process: deterrence, rehabilitation, punishment, etc. Rather, they are a collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgment of some character by way of an incentive, so that the benefits will in fact be derived by the system.
116 The element of remorse which is said to be reflected in a guilty plea and the benefits to witnesses, particularly victims, are of a different quality. Remorse is directly concerned with the circumstances of the offender and may have significant implications for other objectives of the sentencing process. First, genuine remorse would indicate that the element of personal deterrence does not need to be given weight in the particular case. Secondly, it indicates that the prospects of rehabilitation are good. These are sentencing matters pertaining to the individual case, not advantages to the administration of criminal justice.
117 Furthermore the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition. Indeed, even a plea of not guilty to a particular offence may be consistent with genuine remorse as to the effect of the offender's particular conduct, acknowledged to constitute a lesser offence, with respect to which the accused is not, or not then, charged.
118 The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse.
119 As noted above, a factor identified as a benefit from a plea of guilty is the avoidance of the need for witnesses to give evidence, particularly victims and their families and, especially, sexual assault victims. In Siganto supra at [23], the High Court regarded such benefits as relevant to the aspect of remorse.
120 This is a consideration which varies to a significant degree with the nature of, and circumstances of, an offence. It is often the case that the ordeal of a victim and of his or her family, and the anxiety of independent witnesses, continues until the trial. A plea permits the healing process to commence. A victim does not have to endure the uncertainty of not knowing whether he or she will be believed, nor the scepticism sometimes displayed by friends and even family prior to a conviction. A victim will also be spared the personal rumination of the events - reliving the rape, as it is described in that context. An early plea of guilty minimises these effects.
121 Like the element of remorse, this consideration depends on the specific circumstances of the offence and overlaps to a substantial extent with other aspects of the specific case which are relevant to the sentencing task.
122 These conclusions are reinforced by consideration of the "instinctive synthesis" approach to the sentencing process which has generally been accepted as the appropriate approach. The aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. The public interest served by encouraging pleas of guilty for their utilitarian value is a distinct interest.
123 For these reasons I am of the opinion that any general quantitative guideline should focus on the utilitarian advantage derived by the criminal justice system from encouraging pleas of guilty.
Need for a Quantitative Guideline
124 All parties submitted that this Court should provide an indication as to the appropriate range of discount for a plea off guilty. Like earlier guideline judgments of this Court any such quantification would be by way of guidance only. It would not be binding in any formal sense.
125 The parties who appeared before the Court were unanimous in their support of some such guidance. The principal argument in favour of doing so is the need for consistency in the approach taken by sentencing judges. Because it has not been the practice of sentencing judges to quantify any discount for a plea, it is not possible to establish any pattern of inconsistency, as has been possible in earlier guideline judgments.
126 Nevertheless the scepticism about the benefits of an early plea, which appears to be widespread amongst participants in the New South Wales criminal justice system, does suggest an element of inconsistency. Most significantly, however, the evidence available to this Court indicates that the scepticism is reflected in actual practice: where pleas occur, they tend to be late. One of the reasons for that fact is the scepticism about the benefits in fact afforded.
127 For the reasons I have already advanced, the identification of a quantitative guideline in this specific respect is not necessarily inconsistent with the instinctive synthesis approach to the sentencing task. This is particularly so if this Court lays down a broad range within which sentencing judges can exercise a discretion.
128 Arguments in favour of a recognition of the utilitarian value of a guilty plea were set out by King CJ in The Queen v Shannon (1979) 21 SASR 442 esp at 447-451. Of particular significance, for present purposes, is the passage at 451 where his Honour said:
"The conditions under which justice is administered change and the emphasis to be placed upon the various purpose to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasise the need for practical encouragement for guilty persons to admit their guilt. Legal aid for as many as possible of those charged with serious offences should be a high social priority, and, indeed, it is not too much to say that its availability to persons having a genuine defence to criminal charges is indispensable to the proper administration of justice. The consequences of the general availability of legal aid must, however, be recognized and coped with. It must be recognized that guilty persons can put forward false stories and be defended without cost to themselves. The result is the depletion of funds available for legal aid and congestion and delay in the criminal courts. It is not, generally speaking, for the solicitor assigned or the legal aid authority to judge the truth of the assisted person's story, and it is only in the exceptional case that it can be proper to refuse or discontinue assistance because of the strength of the prosecution's case. If a plea of guilty, as distinct from remorse evidence by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence."
129 In The Queen v Slater (1984) 36 SASR 524 King CJ again emphasised the significance of an early plea. His Honour said at 526:
"The degree of co-operation in the administration of justice meriting a reduction in sentence is obviously consistently greater in the case of an offender who pleads guilty when he is first arraigned in the court than in the case of an offender who delays his plea of guilty until the morning of the trial when time of the court has been allocated and the witnesses and jurors summoned. I think that it is important, if the practical ends discussed in Shannon are to be served, that sentencing judges should make significant reductions in sentences in recognition of the co-operation in the administration of justice which the plea of guilty manifests and should explain that they are doing so. I think that it is important, too, that the reduction should be graduated according to the stage at which the plea of guilty is entered and should thereby reflect the degree of co-operation in the administration of justice which the offender has shown."
(See also R v Dodge (1988) 34 A Crim R 325 at 331 per Kirby P: R v Bond (1991) 48 A Crim R 1 at 6-7 per Kirby P).
130 The legitimacy of our criminal justice system would be undermined if persons who were not in truth guilty of offences were encouraged to plead guilty. Subject to that constraint, the public interest is well served to a significant degree if persons who are guilty, plead guilty. The earlier they do so, the greater the public benefit. There would be substantial benefit from bringing forward in time the large number of pleas which are first lodged on the opening day of the trial. As noted above, the New South Wales Bureau of Crime Statistics and Research Survey of the District Court found that 60 percent of all guilty pleas were entered on the day of the trial.
131 Every part of the complex web of interconnected participants which comprises the criminal justice system will be improved if a greater number of early pleas could be achieved. The benefits include:
· Reduce congestion in court lists and permit courts to plan the use of limited resources without overlisting and avoiding the waste of trial court time.
· Reduce the waste of the limited resources available to the Director of Public Prosecutions, the Public Defender and legal aid, both by the direct saving of time spent on preparing cases that do not proceed and by the indirect saving of reducing the number of cases not reached due to overlisting.
· Reduce the waste of time of witnesses, amongst whom police constitute the largest single category, in preparing to give evidence and, in many cases, appearing on the day of trial.
· Reduce the waste of time of jurors who are needlessly assembled for trial.
132 All of these benefits are significantly attenuated, if not lost, to the extent that pleas occur only on the day of trial. Insofar as such benefits are achieved, they enable the criminal justice system as presently resourced to reduce delays with further attendant advantages.
133 From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time.
134 The difficulties involved are identified in the Report of the New South Wales Bureau of Crime Statistics and Research Managing Trial Court Delay where the authors say with respect to the New South Wales District Court at p41:
"Late guilty pleas, adjournments (sought by both the Crown and the Defence) and the failure to reach matters were identified as the primary causes of matters failing to proceed to trial. These three problems do not have their origin in any one source. In responding to the twin problems of late pleas and requests and adjournment, and in being concerned to make maximum use of available court time, the Court has engaged in a policy of over-listing. The over-listing has been such that many matters fail to be reached. Because of the high not-reached rate, the Defence and Prosecution are generally less prepared for trial than they should be on the day of trial. This has further exacerbated the twin problems of late pleas and adjournments.
These problems have been compounded by lack of early and continuous legal representation for the Defence, lack of early involvement of a senior representative for the Crown, difficulties with Crown witness availability and the lack of a perceived benefit for an early guilty plea.
The vicious circle just described cannot be broken by changing just one or some of the above condition. If court administrators reduce the over-listing quota to provide greater trial date certainty but nothing is done about the conditions leading to late guilty pleas and adjournments, the result will be a substantial waste of trial court time. If the Defence and the Crown put resources into ensuring early and continuous representation to reduce late pleas and adjournments, and thoroughly prepare those matters still requiring a trial, but the Court continues over-listing, the result will be a vast increase in inefficiency for Defence and Prosecution."
135 In my opinion, the significant public interests served by encouraging early pleas are such as to justify this Court indicating to the participants in the criminal justice system the extent to which benefits will accrue for an early plea, particularly from the perspective of the utilitarian considerations.
136 Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564.
137 In R v Winchester Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan supra at 12). As his Honour put it at 350:
"The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable."
In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.
138 The element of the strength of the Crown case varies from one extreme where there is very strong Crown case and the plea simply involves a "recognition of the inevitable", to the other extreme where, but for admissions made by the accused, the crimes committed would have gone unpunished or, in some circumstances, even undetected. As Street CJ said in R v Ellis (1986) 6 NSWLR 603 at 604:
"This court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."
139 To similar effect in R v Bishop supra Hunt CJ at CL with whom Smart and McInerney JJ agreed said:
"The degree of contrition evidenced by a plea of guilty depends to a large degree upon whether or not it resulted from a recognition of the inevitable. Where it is unlikely that guilt would have been discovered and established where it not for the prisoner's disclosures, a considerable degree of leniency will usually be extended to a plea of guilty and to a significant extent. Where guilt would inevitably be discovered and established whatever attitude is adopted by the prisoner, a plea of guilty does not evidence any particular degree of contrition, so that leniency will be extended for the plea of guilty only so far as there is a utilitarian benefit in the savings of the time and cost of a trial. None of this is to say that contrition cannot still be taken into account. All that is said is that the plea of guilty does not evidence such contrition."
140 Where the accused's own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest possible timing for a plea.
The Extent of Discount
141 Varying submissions were made with respect to the appropriate rate of discount.
142 Mr Nicholson SC, the Public Defender, submitted that an appropriate rate was 20 percent discount for a late plea of guilty. Mr Game SC who appeared for the Respondent Houlton submitted that a 33 percent discount was appropriate for an early plea of guilty. As noted, their submissions did not encompass any aspect of remorse.
143 Mr Buddin SC, who appeared for the Attorney General, submitted that a single discount should be determined for all aspects of a plea. He submitted that, putting aside any question of remorse, a late plea of guilty even in the face of an overwhelming case should attract a discount of 15-20 percent.
144 Mr Berman, who appeared for the Crown, submitted that all of these proposed discounts were too high. He submitted that a level of discount of 25-30 percent was appropriate for an early plea which encompassed all matters, including remorse, with the top of the range restricted to cases with greater than usual benefits e.g. complex and lengthy proceedings.
145 The various submissions identified a range of authorities which suggest that a discount for a plea of guilty has, in a number of jurisdictions, tended to fall in the range of 25 percent to 35 percent.
146 The Court was referred to cases from jurisdictions in which a formal guideline judgment approach has been adopted (see e.g. "one third would very often be an appropriate discount" R v Buffrey (1993) 14 Cr App R (S) 511; "between a one-quarter and one-third" Thomas The Principles of Sentencing 2nd ed at 52).
147 In New Zealand, the Court of Appeal has rejected a uniform minimum discount of 25 percent for an early plea. (The Queen v Liava'a (New Zealand Court of Appeal, 17 August 1998, unreported). The Court has not promulgated any specific quantum or proportion. (See R v Mako [2000] NZCA 407; [2000] 2 NZLR 170. A review of the New Zealand authorities suggests a range of 10-33 percent, with the most common range being 20-25 percent. (Geoffrey Hall "Sentencing" in Butterworths Current Law par 1.7.3).
148 In Western Australia, at least with respect to sentences under that State's "fast track system", the discount is "often" of the order of 20-25 percent to 30-35 percent. (Verschuren supra at 469; R v Miles (1997) 17 WAR 518 at 521).
149 In South Australia a discount of 25 percent for an early plea of guilty has often been referred to. (R v Sutherland supra; R v Nixon (1993) 66 A Crim R 83 at 90; R v Kendall (Supreme Court of South Australia Court of Criminal Appeal, 16 June 1997, unreported); Allen v R [1999] SASC 346). Discounts in the range of 15-25 percent have been described as "quite common". (R v Rooke supra per Doyle CJ)).
150 All of these cases refer to a discount which did not involve any separation of utilitarian benefits from other considerations.
151 Although these practices, as variously expressed, are suggestive, they are of only limited assistance. This is particularly so if, as proposed, any identified range is limited to the utilitarian value of a plea. That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty.
152 In my opinion, the appropriate range for a discount is from 10-25 percent.
153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options.
157 There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184).
158 There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42]).
159 It is also pertinent to state that a discount of 10-25 percent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances.
Conclusion
160 The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.
161 The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.
162 The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate.
163 WOOD CJ at CL: I agree fully with the reasons of Spigelman CJ, concerning the desirability of issuing a guideline judgment in this matter, and with the guidelines proposed. I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice.
164 FOSTER AJA: I agree with Spigelman CJ.
165 GROVE J: I agree with Spigelman CJ.
166 JAMES J: I agree with the judgment of the Chief Justice.
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LAST UPDATED: 06/10/2000