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Guilty Plea

The content on this page was last reviewed on 12 April 2018.

Related Links: Co-operation

1. Overview

In sentencing a federal offender, regard should be had to any plea of guilty. Section 16A(2)(g) states:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;

While courts are required to take guilty pleas into account when sentencing federal offenders, there is no further direction in the Crimes Act 1914 (Cth) as to how such a plea is to be taken into account.

Consideration of this sentencing factor may result in the court providing a ‘discount’ to the sentence. As Callaway J remarked in R v Duncan [1998] 3 VR 208, 214–215:

[B]oth a plea of guilty and significant assistance to the authorities usually justify some mitigation of punishment in the exercise of the wide discretion conferred on a sentencing judge. It is referred to as a “discount” to make it clear that a sentence is never increased or made more severe because an accused person puts the Crown to its proof or declines to give such assistance (emphasis added).

The practice in Australian states and territories in relation to state and territory offences differs widely due to the varying statutory schemes in place. 1 The New South Wales Law Reform Commission has found that this can result in ‘different levels of discount being applied, an outcome that is not easy to justify to the offender or an external observer’. 2

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2. Rationale for discounts for guilty pleas

There is ongoing judicial debate regarding the rationale for discounting sentences based on a plea of guilty. 3  A discount for a guilty plea will be given either on the basis of the offender’s subjective willingness to facilitate the course of justice or the objective utilitarian benefit of the guilty plea. There has been some discussion by courts about whether any difference in outcome results from the different approaches. In DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, Wigney J stated at [258]–[259]:

In Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237 at [149], however, the Victorian Court of Appeal disagreed with Tyler and held that the court should take into account the utilitarian benefit of a plea of guilty. It was noted, however, that in most cases, there will be little or no difference in outcome, whether the obligation in s 16A(2)(g) of the Crimes Act is expressed in objective terms (the utilitarian benefit) or subjective terms (acceptance of responsibility and a willingness to facilitate the course of justice).

 

This is such a case. Whether the rationale is expressed in subjective or objective terms, NYK’s plea of guilty in all the circumstances is a weighty mitigating consideration … (emphasis added). 4

In R v Lee [2018] ASTSC 21, [16] and R v Simonetti [2018] ACTSC 31, [3]–[4] Elkaim J noted that a discount of 15% applied under the subjective approach, which he indicated he was bound to follow, but that an alternative 20% discount would have applied if the utilitarian approach were permitted.

2.1 Subjective approach

In Cameron v The Queen [2002] HCA 6, the High Court considered sentencing principles relevant to pleas of guilty in reference to the Sentencing Act 1995 (WA). Three judges of the High Court stated the rationale for taking a guilty plea into account in mitigation is not based upon a utilitarian benefit. Gaudron, Gummow and Callinan JJ, at [14], held that the rationale:

[S]o far as it depends on factors other than remorse and acceptance of responsibility, [should] be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing (emphasis added).

2.2 Objective approach

In Cameron Kirby J, in a separate judgment, at [65]–[68], maintained that the purely utilitarian interests of the public form the rationale for a sentencing discount where a plea of guilty is entered.

In Barbaro v The Queen [2014] HCA 2 comments by the plurality indicated that utilitarian benefits do form part of the rationale for allowing a guilty plea. In the context of emphasising the role of the judge in determining the weight to be given to a plea of guilty, French CJ, Hayne, Kiefel and Bell JJ stated at [31]:

[P]leas of guilty avoid very long and costly trials. It is again in the interests of those whom the prosecution represents to see that the utilitarian value of such pleas is suitably and publicly rewarded (emphasis added).

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3. Variability in Approaches

Not all states and territories have continued to follow the reasoning of the majority judgment in Cameron when sentencing for federal offences. Some courts have adopted the practice which applies in their jurisdiction when sentencing federal offenders which may result in inconsistent practices in respect to the sentencing of federal offenders. The approaches taken in each jurisdiction are outlined below.

3.1 New South Wales

In New South Wales, courts have adopted the objective approach alongside the subjective approach when sentencing for federal offences.

In Xiao v The Queen [2018] NSWCCA 4 the New South Wales Court of Criminal Appeal adopted the objective approach when sentencing for federal offences. Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J and Bellew J in a joint judgment considered the statutory construction of s 16A(2)(g) and other underlying reasons to adopt the objective approach at [269]–[274]:

As we indicated, s 16A(2)(g) provides no express limitation on the manner in which a plea may be taken into account. The context in which it was passed, however, included division between courts as to whether purely objective considerations could be taken into account, but increasing recognition of the desirability of guilty pleas in the administration of justice. The context also includes the ALRC Report which, albeit by majority, recommended that a discount for the utilitarian value be afforded. It is true that Pt 1B was not modelled on the ALRC Report’s recommendations but rather the South Australian Criminal Law (Sentencing) Act 1988 (SA), but the subsection still needs to be considered in the context of the report.

 

There are also a number of additional factors which support the proposition that the utilitarian value of the plea can be taken into account.

 

First, it is important that what is required to be taken into account is the fact of the plea. The subsection, in its terms, does not direct attention to the state of mind or motivation of the offender in entering the plea. This tends against the limitation that regard can only be had to the subjective motivation of the offender.

 

Second, it is important to bear in mind that if the utilitarian value of the plea could not be taken into account it would leave s 16A(2)(g) with very little work to do. Contrition and remorse are factors that are separately required to be taken into account under s 16A(2)(f). The fact that the various factors in s 16A(2) will from time to time overlap, does not lessen the force of this consideration.

 

Third, it must be borne in mind that prior to the introduction of s 16A there was an increasing body of authority which suggested a discount could be granted even in circumstances where there was no evidence of remorse and in the face of a strong Crown case: R v Dodge; Shannon; R v Slater; Harman; R v Bulger. That approach was consistent with what was subsequently said by the High Court in Siganto. It is not to be presumed that the legislature intended to limit that approach.

 

Fourth, for the reasons which we have indicated in [249]-[253] above, we do not think that Cameron precludes that approach. In that context it should be borne in mind that in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 in the context of considering sentencing for federal offences, the plurality stated (at [31]) that when pleas of guilty avoid very long and costly trials, it is in the interests of those whom the prosecution represents to see the utilitarian value of such pleas is rewarded (emphasis added).

Their Honours continued at [277]–[278]:

In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object.

 

In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed (emphasis added).

3.2 Victoria

In Victoria, courts have adopted the objective approach alongside the subjective approach when sentencing for state and federal offences.

The Victorian Court of Appeal applied Kirby J’s approach in Cameron in Phillips v The Queen [2012] VSCA 140. Phillips was a case involving state offences. The Court held that a discount for the utilitarian benefit of a guilty plea must always be given, except in exceptional cases.

In DPP (Cth) v Haidari [2013] VSCA 149, Harper JA applied the principles from Phillips. At [26]:

[H]e pleaded guilty at an early stage, and — insofar as the statutory minimum terms allow — must be credited with the resultant significant utilitarian benefit which in this case accompanies that plea: Phillips v The Queen (2012) 222 A Crim R 149.

In Victoria, for federal offences, a guilty plea discount is given on the basis of the utilitarian benefit. 5 In DPP (Cth) v Thomas [2016] VSCA 237 the ‘question whether a discount for the utilitarian benefit of a plea of guilty is attracted in the case of a Commonwealth offence’ was raised before the Supreme Court of Victoria, Court of Appeal. Redlich, Santamaria and McLeish JJA applied Kirby’s approach in Cameron and found at [7]:

(a) The question whether a discount is available in respect of the utilitarian benefit of a plea of guilty to a Commonwealth offence is to be determined by reference to s 16A(2)(g) of the Crimes Act.

 

(b) A sentencing court must take account of the fact of the plea of guilty. Having regard to the text, context and purpose of s 16A(2)(g) of the Crimes Act, it is to be construed as meaning that a sentencing court must take into account the objective utilitarian benefit of a plea of guilty.

 

(c) We consider the view expressed in Tyler, that Cameron altered the nature and extent of the discount to be allowed for a plea of guilty for Commonwealth offences, to be plainly unsustainable. Intermediate appellate authority is quite divided as to how the joint reasons in Cameron are to be understood. In any event, the principle of comity does not require one appellate court to accept another appellate court’s understanding of the meaning to be given to reasons in a High Court judgment.

 

(d) Cameron was not concerned with a Commonwealth offence or the construction of s 16A(2)(g) of the Crimes Act. Further, there was no reference to s 16A(2)(g) in Tyler nor any consideration of whether statute governed the discount to be allowed for the fact of the plea of guilty or whether the statute could have been modified by the common law.

 

(e) Section 16A(2)(g) copied s 10(g) of the Criminal Law (Sentencing) Act 1988 (SA), as it originally stood. That provision and similar statutory provisions in other States require a sentencing court to take account of ‘the fact’ of the plea of guilty. Intermediate appellate courts have consistently construed the State provisions, both before and since Cameron, as meaning that a discount is to be allowed for the utilitarian benefit to the administration of justice of the plea of guilty. Given the common features of the text, purpose and context of the State and Commonwealth provisions, s 16A(2)(g) should be given the same construction.

 

(f) Tyler and other intermediate appellate decisions that have not allowed a discount for the utilitarian benefit of the plea of guilty for Commonwealth offences should not be followed. They are inconsistent with other appellate authority both before and since Cameron, which in our opinion has correctly allowed a discount for the utilitarian benefit of the plea for Commonwealth offences.

 

(g) A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender’s plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender’s willingness to follow that course, often described in the authorities as ‘co-operation’, vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.

 

(h) As a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest or the absence of remorse. Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of that plea. However, the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, will not always have the same mitigating weight as the utilitarian benefit of avoiding a contested trial. For that reason, while statute requires a sentencing court to have regard to the fact of a plea of guilty, it is important that the utilitarian benefit be adequately reflected. We do not understand Cameron to say anything to the contrary (citations omitted).

3.3 Western Australia

In Western Australia, the approach taken by courts is unclear.

In Bahar v The Queen [2011] WASCA 249 it was indicated that the subjective approach from the joint judgment’s approach in Cameron applied to the sentencing for federal offences. McLure P (Martin CJ and Mazza J agreeing) stated at [41]:

[T]he principles articulated by the High Court in Cameron v The Queen (2002) 209 CLR 339 concerning the sentencing approach to pleas of guilty and not guilty [apply to the sentencing of federal offenders]. The common law requires that an offender must not be penalised for pleading not guilty (Cameron (345)). However, at the same time a plea of guilty is accepted as a mitigating factor. The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice (emphasis added).

However, courts have also taken into account the utilitarian benefit of guilty pleas. For example, in R v Combo [2015] WASCA 34, McLure P (Newnes and Mazza JJA agreeing) noted that ‘the pleas of guilty had significant utilitarian value as they avoided a trial scheduled to take three weeks’. 6

3.4 South Australia

In South Australia, the approach taken by courts is unclear.

The South Australian Court of Criminal Appeal, in relation to state offences, had previously favoured the view of Kirby J in Cameron that a sufficient rationale is found in the public interest based upon purely utilitarian considerations. 7

There have been indications that this approach is considered applicable to federal offences, however the position is unclear. 8 The approach in relation to state offences has now been affected by legislative amendments in 2012 which emphasise the utilitarian value of a guilty plea. 9

3.5 Tasmania

In Tasmania, the approach taken by courts is unclear when sentencing for federal offences.

In relation to state offences, Tasmanian courts have held that the rationale includes the utilitarian value of the guilty plea. 10

The subjective approach from the joint judgment in Cameron has been followed in relation to federal offences. 11 However, courts have also taken into account the utilitarian benefits of a guilty plea when sentencing for federal offences. Porter and Wood JJ (Crawford CJ agreeing) stated in Henderson v Tasmania; Henderson v The Queen [2012] TASCCA 12 at [4]:

But for the pleas of guilty, it would have been necessary for there to have been two separate trials … By pleading guilty Mr Henderson has saved the State, the Commonwealth and the Court the cost and inconvenience of two lengthy trials involving large quantities of documentary evidence and large number of witnesses, including many from interstate.

3.6 Australian Capital Territory

In the Australian Capital Territory, courts have adopted the subjective approach when sentencing for federal offences.

In R v Philpot [2015] ACTSC 96, Murrell CJ noted that the subjective approach should be adopted in relation to sentencing for federal offences. Her Honour stated at [2]:

The plea to the altered charge showed a substantial willingness to assist the course of justice. The sentence that I would otherwise have imposed will be discounted by 20% in acknowledgement of that willingness.

In R v Harrington [2016] ACTCA 10, the Court of Appeal also held the discount should be given on the basis of subjective willingness to facilitate the course of justice. Refshauge ACJ and Gilmour J stated at [125]:

Counsel for the respondent ultimately conceded, correctly in our view, that the application of a utilitarian discount by the sentencing judge was contrary to the principles found in Cameron concerning the discount for a plea of guilty (emphasis added). 12

Their Honours continued at [132]:

[I]n Tyler v The Queen; R v Chalmers at [111] the Court of Criminal Appeal in New South Wales unanimously concluded that Cameron applies in New South Wales to judges sentencing under Commonwealth law. So too is the position in the Australian Capital Territory (emphasis added). 13

Recent cases have followed R v Harrington [2016] ACTCA 10 but have specified the alternative discount that would have applied were the utilitarian value to have been taken into account: Elkaim J in R v Lee [2018] ASTSC 21 stated at [16]:

There is some conflict between a decision of this Court (R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (‘Harrington’)) and decisions in Victoria and New South Wales (Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237; 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4 respectively). In Harrington, it was said that utilitarian value should not be taken into account in arriving at a discount for a plea of guilty for a Commonwealth offence. The other two cases are to the contrary. I am bound by Harrington, to the extent that I do not think I can apply a discount in excess of 15%. But for Harrington, I would have applied a discount of 20% (emphasis added). 14

In relation to territory offences, ACT Courts have held that the utilitarian value of a plea is the ‘dominant purpose of allowing a discount’. 15

3.7 Northern Territory

The courts in the Northern Territory have adopted the subjective approach when sentencing for federal offences. 16 The Court noted in R v Evans [2013] NTCCA 9 at [4] that the sentencing judge:

[I]ndicated she would apply a reduction of 50% in total from the notional seven year term, 25% due to the respondent’s willingness to facilitate the course of justice by pleading guilty and evident remorse and 25% due to co-operation with authorities. No complaint is made about the percentage of value of the reductions.

3.8 Queensland

The position in relation to federal offences in the Queensland is unclear.

In R v Nitu [2012] QCA 224, Fraser JA stated (Lyons J and Holmes JA agreeing) at [38] that:

[B]ut whether or not that is so, I respectfully observe that the application of those sentencing principles should not produce a range of sentences which involves any significant “compression” attributable to a difficulty in allowing for a discount for a plea of guilty. Matters which are “personal to the offender” and justify a discount in the sentence comprehend a plea of guilty, insofar as the plea reflects a willingness to facilitate the course of justice, remorse, and acceptance of responsibility. If the significance of a plea might be thought to extend beyond matters personal to the offender, for example if it is treated as having a purely utilitarian value which justifies a discount in the sentence, the principle expressed in Bahar v The Queen that all relevant sentencing considerations are to be taken into account in deciding whether an offence falls within the least serious category allows reference to a plea of guilty, just as it allows reference to all other relevant considerations (emphasis added).

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4. Impact of Guilty Plea

Part IB does not state whether the weight to be attached to a guilty plea is dependent upon the time at which the plea was entered.

In Cameron Gaudron, Gummow and Callinan JJ, at [22], indicated that the issue of whether the plea was entered at the first reasonable opportunity is a significant consideration in determining the extent to which the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice.

In Miao v The Queen [2017] NSWCCA 89, the New South Wales Court of Appeal outlined that in exceptional circumstances delay in a plea may not lead to a reduction of the discount awarded, Latham J (Leeming JA and Campbell J agreeing) indicated at [24]–[26] that:

The judge discounted the sentences on each offence by 20% on the basis that the applicant pleaded guilty at the completion of the committal proceedings [on utilitarian basis for State offence and subjective basis for Commonwealth offences: R v Miao [2016] NSWDC 181 at [19]]. The short delay in entering those pleas was occasioned by a dispute relating to [the State offence]. …

 

The applicant acknowledges the force of Howie J’s judgment (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, in so far as the reason for the delay is generally not relevant because the utilitarian value of a plea is the basis of the discount. However, the applicant maintains that the reason for the delay in his case was a valid one which ought to have provoked “the exercise of discretion for awarding the maximum discount where the plea of guilty [was delayed]”: Borkowski at [31]. The further qualification to that observation by Howie J was that such a case “would be exceptional and arise from the peculiar factual situation in a particular case.” (emphasis added).

Latham J (Leeming JA and Campbell J agreeing) continued at [28]:

I am not persuaded that the circumstances relied upon by the applicant are “exceptional” or that they were “peculiar” to his case. The judge was entirely correct in observing that any dispute about the elements of one [State] offence should have had no bearing on the timing of his pleas of guilty to the other two [Commonwealth] offences. Ultimately, the discount was referrable to the sentences imposed for those two offences (emphasis added).

The strength of the Crown case is ‘a most significant factor’ 17 when assessing the willingness of an offender to facilitate the course of justice. 18

In R v Jafari [2017] NSWCCA 152, Basten JA (Johnson and Davies JJ agreeing) stated at [80], on the extent to which a guilty plea could be considered evidence of remorse, that:

[I]n the face of an apparently incontrovertible prosecution case, one would not have expected much weight to be given to the plea by itself as an indicator of remorse.

In Lee v The Queen [2012] NSWCCA 123, Hoeben JA (Hidden and Beech-Jones JJ agreeing) stated at [59]:

Since the test in a Commonwealth offence is the willingness of the offender to facilitate the course of justice, a relevant consideration … is the strength of the Crown case. This is because the strength of the Crown case may bear upon the question of whether the plea of guilty was motivated by a willingness to facilitate the course of justice, or simply a recognition of the inevitable.

In R v Karan [2013] NSWCCA 53 the Court held that a discount of 25% was excessive, where the plea was not entered at the first reasonable opportunity and did not evince a willingness to facilitate the course of justice or any remorse or contrition, but was rather ‘entered with a view to minimising his sentence’. 19 The Court held that the maximum discount which ‘would adequately take into account the circumstances’ of the plea was 15%. 20

In some cases a plea of guilty may carry little weight. In Bahar v The Queen [2011] WASCA 249, a people smuggling case, McClure P (Martin CJ and Mazza J agreeing) stated at [43]:

However, a plea of guilty does not automatically translate to a reduction in sentence in all cases. As this court said in Moody v French [2008] WASCA 67: “It is open to a court to find that, although a particular factor (such as a plea of guilty) decreases the culpability of the offender or the extent to which the offender should be punished, that factor is so outweighed by other factors that it is necessary to impose the maximum sentence because, even allowing for the mitigating effect of that factor, the offence falls within the worst category of offences of its type” [33].

 

See also, Keating v The State of Western Australia [2007] WASCA 98 [39]–[40]. It is also the case that an offender may be in the lowest category of offending notwithstanding a plea of not guilty. This is simply a reflection of the fact that sentencing involves the weighing of all relevant sentencing factors some of which pull in different directions and can result in the same sentence for co-offenders, notwithstanding that one pleaded guilty and the other went to trial (emphasis added).

In Linggo v The Queen [2017] NSWCCA 67, the plurality held that any assistance provided by the offender is not relevant to determining the discount for a plea of guilty. The plurality held at [46]:

[The sentencing judge] erred in having regard to the fact that the applicant had not disclosed the names of those involved in the enterprise. That consideration is irrelevant to the determination of the extent to which a sentence should be mitigated for a plea of guilty. Section 16A(2)(g) is not conditioned upon an offender providing assistance. The provision of assistance to authorities is an independent consideration which falls for consideration under s 16A(2)(h).

See further: Co-operation.

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5. Specifying the quantum of the discount in sentencing remarks

Part IB does not require a court to specify the discount given for a guilty plea in sentencing remarks. 21 The practice of specifying the discount given for a guilty plea varies across jurisdictions. 22 The High Court confirmed in Markarian v The Queen [2005] HCA 25, [24] that specifying the discount granted for a guilty plea does not constitute an error.

5.1 Victoria

In Victoria, when sentencing for state offences, a court is required by s 6AAA of the Sentencing Act 1991 (Vic) to state the sentence and non-parole period it would have imposed but for the plea of guilty. Section 6AAA has been cited and applied when sentencing for federal offences in Victoria. 23 However, no definitive view has been expressed on whether s 6AAA is capable of being picked up and applied by ss 68 and 79 of the Judiciary Act 1903 (Cth).

For example, in R v Cini [2014] VSC 409, Croucher J stated at [77]:

There is some debate about whether s 6AAA of the Sentencing Act 1991 (Vic) applies to sentencing for federal offences [see, e.g., R v Yim & Ors [2012] VSC 325 at [47] per T Forrest J; R v Ramazanoglu [2013] VSC 724 at [66] per Kaye J]. Rather than enter into that debate, I think the preferable course is to assume the provision is applicable and make a declaration.

Where a s 6AAA statement is made by a court, that statement cannot be used to establish a specific error in the discount applied for a guilty plea. In DPP (Cth) v Haynes [2017] VSCA 79, Redlich, Weinberg and McLeish JJA stated at [31]:

[I]n Director of Public Prosecutions (Cth) v Garside,  this Court repeated its earlier observation in R v Burkethat a complaint about the sentence discount can only be a complaint about the weight attributed to one particular sentencing consideration.  It is now well settled that the s 6AAA statement cannot be used to establish a specific error in the discount for the plea of guilty (citations omitted) (emphasis added). 24

5.2 New South Wales

In New South Wales, the Court has clearly distinguished the approach applicable to federal offences compared to state offences. While the state guideline judgment of R v Thomson; R v Houlton [2000] NSWCCA 309 encouraged sentencing judges to ‘quantify’ the discount, in Lee v The Queen [2012] NSWCCA 123 Hoeben JA (Hidden and Beech-Jones JJ agreeing) stated at [58]:

When sentencing for a Commonwealth offence, there is no requirement for the sentencing judge to specify a quantifiable discount for an offender’s guilty plea. The principles set out in R v Thomson, R v Houlton (2000) NSWCAA 309; 49 NSWLR at [155], do not apply to sentencing for Commonwealth offences. 25

5.3 South Australia

In South Australia, there is authority favouring the view that a sentencing judge should specify the reduction given for a plea of guilty in sentencing remarks for federal offences. 26

5.4 Northern Territory

In the Northern Territory as well, there is authority favouring the view that a sentencing judge should specify the reduction given for a guilty plea in sentencing remarks for federal offences. 27

5.5 Western Australia

In Western Australia, the Supreme Court had followed Markarian v The Queen [2005] HCA 25, holding that the discount for a guilty plea need not be specified as this was not required by the instinctive synthesis approach. 28 The Western Australian Court of Appeal held the requirement to specify the discount under s 9AA of the Sentencing Act 1995 (WA) does not apply to Commonwealth offences. 29 Buss P held in NGO v The Queen [2017] WASCA 3 at [32]:

Section 16A(2)(g) makes contrary provision to s 9AA. The general and unqualified provision in s 16A(2)(g), read in the context of s 16A as a whole, is inconsistent with the detailed and exhaustive provision in s 9AA. There is no room in the Commonwealth legislative scheme embodied in pt IB of the Crimes Act for the operation of s 9AA (emphasis added).

5.6 Australian Capital Territory

In the Australian Capital Territory, s 37 of the Crimes (Sentencing) Act 2005 (ACT) requires the Court to state the penalty it would have imposed but for the guilty plea. No statement has been made as to whether s 37 can be applied to federal offences pursuant to ss 68 and 79 of the Judiciary Act 1903 (Cth). However, in practice, the Supreme Court has applied s 37 in relation to federal offences and specified the sentence that would have been imposed but for the guilty plea discount 30 or the percentage discount applied. 31

5.7 Tasmania

In Tasmania, the Court of Criminal Appeal has held that there is no justification for requiring a specific quantified discount in regard to a plea of guilty for federal offences. 32

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6. Determining the quantum of the discount where there is both co-operation and a guilty plea

The overall discount for both a guilty plea under s 16A(2)(g) and assistance to the authorities under s 16A(2)(h) must not produce a sentence which is so lenient that it would be disproportionate to the objective gravity of the offence and the circumstances of the offender. 33

In the drug importation case of R v Sukkar [2006] NSWCCA 92, Latham J (with whom McClellan CJ and Howie J agreed) stated at [54]:

While there is no fixed tariff for assistance to the authorities, [combined] discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender (emphasis added).

Courts have found that a combined discount exceeding 50% may be justified where the assistance is of an extraordinary kind or where information is disclosed that was otherwise unknown to the authorities: In the state sentencing case of SZ v The Queen [2007] NSWCCA 19, Budin J (Simpson J agreeing and Howie J agreeing in separate judgement) stated at [52] that:

I acknowledge … that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender … (emphasis added) (citations omitted). 34

In R v Sukkar [2006] NSWCCA 92, [56], a combined discount of 45% awarded by the sentencing judge was found to be excessive as the assistance was not of a very high order, the respondent demonstrated little contrition, the respondent and his family were not at any personal risk and there was no evidence of any hardship arising directly out of the giving of assistance. A 35% discount was substituted.

In DPP (Cth) v AB [2006] SASC 84, [90]–[94] a combined discount of sixty percent was found to be excessive as the respondent was not required to give evidence and there was nothing to suggest that the authorities could not manage his safety in prison. 35 A combined discount of 40% was substituted. 36

See further: Co-operation.

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Notes:

  1. See, eg, amendments made to the Sentencing Act 1995 (WA) by the Sentencing (Amendment) Act 2012 (WA). Section 9AA was inserted, and in sub-section (2) provides: ‘If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.’ In Beins v The State of Western Australia (No 2) [2014] WASCA 54, [55] McLure P explained the effect of s 9AA: ‘The utilitarian benefits of a plea of guilty were not directly relevant to the discount for a plea of guilty under Cameron [2002] HCA 6. Section 9AA reversed that position.’
  2. New South Wales Law Reform Commission, Sentencing, Report No 139 (2013) 127 [5.35].
  3. See, eg, Rod Howie, ‘Sentencing Discounts: Are they Worth the Effort?’ (2008) 8(4) The Judicial Review 473 [edited version of a paper presented to the NJCA-ANU Joint Sentencing Conference, 2008, Canberra].
  4. See also R v Lee [2018] ASTSC 21, [16] (Elkaim J); R v Simonetti [2018] ACTSC 31, [3]–[4] (Elkaim J).
  5. DPP (Cth) v Thomas, [7] (Redlich, Santamaria and McLeish JJA). In other cases involving federal offences, the Courts have applied principles from Phillips. See, eg, Rodriguez v DPP (Cth) [2013] VSCA 216, [34]; DPP (Cth) v Haidari [2013] VSCA 149, [26] (Harper JA); Acosta v The Queen [2015] VSCA 94, [49]. See also HAT v The Queen [2011] VSCA 427, [117] (Redlich JA, Neave JA agreeing).
  6. R v Combo [2015] WASCA 34, [60]. See also Forsyth v The Queen [2015] WASCA 36, [39] (Newnes and Mazza JJA). But see R v Host [2015] WASCA 23 where Buss JA stated at [145]: ‘the respondent entered pleas of guilty and, in that manner, showed contrition for his offending and facilitated the course of justice.’
  7. R v Place [2002] SASC 101, [78] (Doyle CJ, Prior, Lander and Martin JJ).
  8. See, eg, Huynh v Commonwealth Services Delivery Agency [2014] SASC 143, [54] (Peek J) where the utilitarian rationale was discussed. But see R v Constant (No 2) [2017] SASCFC 36, [18], [20] (Nicholson, Lovell and Hinton JJ) where the Court referred to the willingness of the offender to ‘facilitate the course of justice’ as the underlying rationale for the reduction in sentence due to the offenders plea of guilty.
  9. See Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA). See also R v Stavreas [2015] SASCFC 68, [17]–[18] (Sulan J, Nicholson and Lovell JJ agreeing).
  10. See, eg, Pickett v Tasmania [2014] TASCCA 1, [24] (Estcourt J, Porter J and Blow CJ agreeing); Ilic v Tasmania [2009] TASSC 94, [18] (Tennent J, Crawford CJ agreeing); Dennison v Tasmania [2005] TASSC 54, [14] (Slicer J, Crawford J agreeing).
  11. See R v Gay (2013) (unreported, Tas Sup Ct, Porter J, 30 August 2013).
  12. But see R v Harrington [2016] ACTCA 10 at [35] where Murrell CJ held the ‘the uncontroversial principles in Cameron apply, without determining whether those principles are inconsistent with allowing a discount for “utilitarian value” …’
  13. See also R v Arthur [2017] ACTSC 23, [34] (Robinson AJ).
  14. See also R v Simonetti [2018] ACTSC 31, [3]–[4] (Elkaim J).
  15. R v Monaghan [2014] ACTSC 278, [43] (Murrell CJ). See further Elizabeth Wren and Lorana Bartels, ‘Guilty, Your Honour’: Recent Legislative Developments on the Guilty Plea Discount and an Australian Capital Territory Case Study on its Operation’ (2014) 35 Adelaide Law Review 361. In their analysis of 300 cases in the ACT Supreme Court, they found an ‘adherence to the notion that the utilitarian value of a guilty plea is the primary rationale for the discount’. Of the 300 cases analysed, 102 made reference to the utilitarian value in a guilty plea while only 19 discussed the concept of a willingness to facilitate the course of justice: at 380–1.
  16. See, eg, Schuelein v The Queen [2016] NTCCA 7 (Southwood and Hiley JJ).
  17. R v Karan [2013] NSWCCA 53, [71] (Adamson J, Johnson and Harrison JJ agreeing).
  18. Tyler v The Queen, R v Chalmers [2007] NSWCCA 247, [114] (Simpson J, Harrison and Spigelman CJ agreeing); Danial v The Queen [2008] NSWCCA 15, [28] (James J, McClellan CJ at CL and Barr J agreeing); Lee v The Queen [2012] NSWCCA 123, [59] (Hoeben JA, Hidden and Beech-Jones JJ agreeing).
  19. R v Karan [2013] NSWCCA 53, [72] (Adamson J, Johnson and Harrison JJ agreeing).
  20. R v Karan [2013] NSWCCA 53, [75] (Adamson J, Johnson and Harrison JJ agreeing).
  21. See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [11.7][11.8].
  22. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 2006) [11.8]. For example, the sentencing legislation in some jurisdictions requires a judge to specify the discount. See, eg, Sentencing Act 1991 (Vic) s 6AAA; Sentencing Act 1995 (WA) s 9AA(5).
  23. See, eg, Scerri v The Queen [2010] VSCA 287, [58]; DPP (Cth) v Bui [2011] VSCA 61, [99].
  24. See also DPP (Cth) v Garside [2016] VSCA 74, [46]–[47] (Redlich and Beach JJA). This position was explained in detail in the state case of R v Burke [2009] VSCA 60.
  25. See also AB v The Queen [2013] NSWCCA 333, [35] (Schmidt J, Leeming JA and Hall J agreeing); Xiao v The Queen [2018] NSWCCA 4, [279]–[280] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) where the Court stated that it is ‘desirable’ for discounts to be specified but that there ‘is no obligation on the sentencing judge to do so’.
  26. DPP (Cth) v AB [2006] SASC 84, [48]; R v Place [2002] SASC 101, [83].
  27. Kelly v The Queen [2000] NTCCA 3, [27] (Martin CJ, Angel and Mildren JJ); Presswell v Burgoyne [2005] NTSC 67, [6] (Southwood J); JKL v The Queen [2011] NTCCA 7, [23] (Southwood and Martin JJ). See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [11.8].
  28. Harding v Moreland [2006] WASC 8, [61], [66] (Hasluck J).
  29. NGO v The Queen [2017] WASCA 3, [32]–[33].
  30. See R v Philpot [2015] ACTSC 96, [2] (Murrell CJ); Roncevic v Boxx [2015] ACTSC 53, [2] (Penfold J); R v RJ [2014] ACTSC 226, [48]–[50] (Penfold J). But see Scrivener v Papantaniou [2009] ACTSC 41, [67] (Penfold J).
  31. R v Lee [2018] ASTSC 21, [26] (Elkaim J); R v Simonetti [2018] ACTSC 31, [3]–[4] (Elkaim J).
  32. Pavlic v The Queen [1995] TASSC 96, [7] (Green CJ), [13] (Wright J); R v Stanley [1998] TASSC 13. See also Director of Public Prosecutions v Harris [2013] TASCCA 5,
  33. See R v Sukkar [2006] NSWCCA 92, [54] (Latham J, McClellan CJ and Howie J agreeing); Isaac v The Queen [2012] NSWCCA 195, [48] (Garling J, Latham J and Hoeben JA agreeing).
  34. The principles from the state sentencing case of SZ v The Queen [2007] NSWCCA 19 have been frequently applied in federal sentencing. See, eg, Shi v The Queen [2014] NSWCCA 276, [114] (Bellew J, Leeming JA and Fullerton J agreeing); DPP (Cth) v Afiouny [2014] NSWCCA 176, [50] (Garling J, Price and Harrison JJ agreeing); C v The Queen [2013] NSWCCA 81, [35] (Hoeben JA, Beech-Jones and Adams JJ agreeing); Isaac v The Queen [2012] NSWCCA 195, [56] (Garling J, Latham J and Hoeben JA agreeing). See also R v KAK [2013] QCA 310, [48]–[49] (Muir JA, Holmes and Fraser JJA agreeing).
  35. See further: Hardship to the Offender.
  36. See also DPP (Cth) v Afiouny [2014] NSWCCA 176, [46]–[59] (Garling J, Price and Harrison JJ agreeing) where the combined discount of sixty percent was deemed excessive where the offender had pleaded guilty early and the assistance was ‘of a high order’. A discount of fifty percent was substituted.