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Guilty Plea

 

The content on this page was last reviewed on 28 April 2021.

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1. Section 16A(2)(g)

In sentencing a federal offender, regard should be had to any plea of guilty. Section 16A(2)(g) in its present form came into effect on 20 July 2020. Section 16A(2)(g) now provides that:

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:
         (i)  that fact; and

         (ii)  the timing of the plea; and

         (iii)  the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

Consideration of this sentencing factor may result in the court providing a ‘discount’ to the sentence. As Callaway J stated 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).

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1.1 Former s 16A(2)(g)

Prior to the amendment to s 16A(2)(g) in July 2020, former s 16A(2)(g) provided that a court must take into account “if the person has pleaded guilty to the charge in respect of the offence—that fact”.  There was an ongoing judicial debate as to the rationale for discounting sentences based on a plea of guilty, and particularly whether discounts were given on the basis of the offender’s subjective willingness to facilitate the course of justice or the objective utilitarian benefit of the guilty plea. 1

The difference between the “subjective” and “objective” basis for a guilty plea was explained by the Court of Appeal of Victoria in DPP (Cth) v Thomas [2016] VSCA 237at [1]:

… a plea of guilty spares the community the expense of a contested trial and equally spares witnesses and victims the experience of such a trial. The discount that a plea of guilty nearly always attracts on this basis is often referred to as a discount for ‘utilitarian benefit’. That objective benefit may be contrasted with the subjective circumstances of the offender, and in particular his or her remorse or contrition for the offending. Other subjective features may include the offender’s acceptance of responsibility for his or her actions and a willingness to facilitate the course of justice.

The Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), which amended s 16A(2)(g), indicates that the legislature intended the objective utilitarian benefit to be taken into account under the new s 16A(2)(g). The Explanatory Memorandum states at 55 [251]–[252]:

The existing paragraph 16A(2)(g) is expanded upon so that in addition to considering the fact that the person pleaded guilty to the charge in respect of the offence, regard is also to be had to the timing of that plea and the degree to which these factors resulted in any benefit to the community or to any victim of or witness to the offence. 252. The amendment to paragraph 16A(2)(g) is an acknowledgement that is it appropriate for offenders to be offered a reduction in their sentence for an early guilty plea, as early guilty pleas reduce the costs associated with prosecuting offenders and save victims and witnesses from the often harrowing experience of giving evidence and being cross-examined in open court.

This was confirmed in the case of R v Yavuz (No 2) [2020] ACTSC 248. Prior to the amendments to s 16A(2)(g), the position in the ACT was that the utilitarian benefit of a guilty plea was not relevant in federal sentencing. 2 In Yavuz, Loukas-Karlsson J, in applying the new provision stated at [74]:

Until recently in the ACT, offenders were not entitled to any discount on sentence for the utilitarian benefit of their plea: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [27]. Recent amendments to the Crimes Act, however, have rendered this authority no longer relevant, as the legislation now specifies that a court must take into account the utilitarian benefit of a plea of guilty.

2. Factors Affecting Discount Awarded for Guilty Plea

2.1 Timing of the Guilty Plea

Section 16A(2)(g)(ii) requires a court to take into account the timing of a guilty plea. 

In Cameron v The Queen [2002] HCA 6, 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 Court outlined that in exceptional circumstances, delay in entering a plea of guilty 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).

In the attempted drug possession case of R v Freeman [2019] QCA 150, Applegarth J (Fraser JA agreeing) stated at [47]–[51] that:

The issue of whether an offender pleaded, or offered to plead, guilty at the first reasonable opportunity must be considered in the circumstances of the particular case, and is not answered simply by looking at the charges.

 

In some circumstances, there is a strong incentive for a person who recognises his guilt on certain counts to persist in a not guilty plea to all counts because of “the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him.” In such circumstances, “it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity”.

 

Equally, a desire to maintain some possible forensic advantage does not mean that it should be assumed, mechanically, that an offender who has delayed pleading guilty until the eve of trial, and who negotiates a plea, has pleaded guilty at the earliest possible opportunity.

 

Forensic prejudice of the kind alluded to by Ipp J in Atholwood in pleading guilty to certain counts while the Crown persists in the prosecution of other counts that are subsequently withdrawn is only one relevant circumstance. Subsequent decisions of the Court of Appeal of Western Australia show that the observations of Ipp J have been narrowly applied. Relevant forensic prejudice should not be assumed. As McLure P observed, “relevant forensic prejudice has been difficult to establish”. 

 

The gravamen of what Ipp J said in Atholwood is that it should not be assumed, mechanically, that reasonably speaking, the offender did not plead at the earliest possible opportunity.

 

Relevant circumstances include whether the offender made an attempt to negotiate a plea. An explanation for delay in pleading guilty at an earlier opportunity may be that the offender was negotiating to have other charges withdrawn. No such explanation is given in this case (emphasis added; citations omitted).

2.2 The benefit to the community of the guilty plea

Section 16A(2)(g)(iii) requires a court to take into account the degree to which the fact of the guilty plea and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence.

This expressly requires a court to take into account the utilitarian value of the guilty plea. The utilitarian value of guilty pleas was described by the High Court in Barbaro v The Queen [2014] HCA 2 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.

In Small v The Queen [2020] NSWCCA 216, Johnson J (Hoeben CJ at CL and Longergan J agreeing) in applying the new s 16A(2)(g) stated at [73]–[74]:

In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R.

The Applicant’s guilty pleas for the Commonwealth offences were entered at an early stage of the proceeding when still before the Local Court. An effect of the pleas of guilty was that Amy and other witnesses were not required to give evidence at a trial. There was utilitarian value to the Applicant’s guilty pleas for the Commonwealth offences (emphasis added).

2.3 Where plea of guilty will carry little weight

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).

2.4 Co-operation not relevant to discount for guilty plea

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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3. 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. 3 The practice of specifying the discount given for a guilty plea varies across jurisdictions. 4 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 (in relation to the relevant NSW provisions in force at the time). This has been confirmed in relation to Part IB of the Crimes Act 1914 (Cth): see Xiao v The Queen [2018] NSWCCA 4 at [279]–[280].

3.1 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. 5 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). 6

3.2 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. 7 

In Xiao v The Queen [2018] NSWCCA 4 the New South Wales Court of Criminal Appeal discussed whether a sentencing judge was required to specify a quantifiable discount. The Court stated that it was desirable to do so, stating at [279]–[280]:

There remains the question of whether it is necessary or appropriate to specify the discount given for a plea. In R v Place, where the legislation in question was in similar terms to s 16A(2)(g), the plurality stated (at [81]–[83]) that courts should be encouraged to identify the specific reduction given. That is consistent with what was said by Kirby J in Cameron (at [71) that it is desirable and certainly permissible to identify the measure of discount afforded for a plea of guilty. Further, McHugh J pointed out in Markarian (at [74]) that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing.

 

Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error (emphasis added).

3.3 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. 8

3.4 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. 9

3.5 Western Australia

In Western Australia, the Supreme Court has 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. 10 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. 11 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).

3.6 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). 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 12 or the percentage discount applied, 13 but in other cases, it has not done so. 14

3.7 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. 15

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Notes:

  1. See Cameron v The Queen [2002] HCA 6, [14]; Xiao v The Queen [2018] NSWCCA 4, [269]–[274]; DPP (Cth) v Thomas [2016] VSCA 237, [7]; R v Harrington [2016] ACTCA 10, [125]–[132].
  2. See R v Harrington [2016] ACTCA 10, [125]–[132].
  3. Xiao v The Queen [2018] NSWCCA 4 at [280]. See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [11.7][11.8].
  4. 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).
  5. See, eg, Scerri v The Queen [2010] VSCA 287, [58]; DPP (Cth) v Bui [2011] VSCA 61, [99]; Nipoe v The Queen [2020] VSCA 137.
  6. 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.
  7. 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 J 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’. 
  8. DPP (Cth) v AB [2006] SASC 84, [48]; R v Place [2002] SASC 101, [83]; Dunning v Tasmania [2018] TASCCA 21,[23]–[24].
  9. 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].
  10. Harding v Moreland [2006] WASC 8[61], [66] (Hasluck J).
  11. NGO v The Queen [2017] WASCA 3, [32]–[33]. 
  12. 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); Manyathela v R [2015] ACTCA 13.
  13. R v Lee [2018] ASTSC 21, [26] (Elkaim J); R v Simonetti [2018] ACTSC 31, [3]–[4] (Elkaim J). 
  14. See Nantahkum v R [2013] ACTCA 40; Ojielumhen v R [2014] ACTCA 28; R v Harrington [2016] ACTCA 10.
  15. 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.