Criminal division – sentencing

11.2.8 Effect of guilty plea, admission of offence and/or assistance to the authorities

There do not appear to be any superior court cases specifically dealing with the effect on the sentencing of a child offender of a guilty plea and/or assistance to the authorities. Nor is there any provision in the Children, Youth and Families Act 2005 (Vic) akin to s.5(2)(e) of the Sentencing Act 1991 (Vic) which provides that in sentencing an adult offender a court must have regard to "whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so". Nevertheless there seems no reason why the cases dealing with adult offenders should not also be relevant for juvenile offenders, at least so far as any non-rehabilitative component of the sentence is concerned.
A number of relevant principles are set out in the judgment of Callaway JA in R v Duncan [1998] 3 VR 208 at 214-215. These include:

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  Both a plea of guilty and significant assistance to the authorities usually justify some mitigation of sentence in the exercise of the wide discretion conferred on a sentencing judicial officer. 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.
  
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  This distinction is practical, whether or not it is logical or easily understood. In that respect it is like the proposition that, whilst remorse is a circumstance of mitigation, its absence is not an aggravating factor.
  
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  In appropriate circumstances the discount for assistance may be very considerable indeed. Even where it does not evidence repentance or foreshadow amendment of life, a large reduction may be made for purely utilitarian reasons dictated by the public interest.
  
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  In the case of a plea of guilty it is necessary to distinguish between the plea as indicating contrition or some other quality or attribute that is relevant to sentencing and the plea in its own right, but again the public interest is important.
  
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  A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount.
  
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  An early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount, for the reasons explained by Hunt CJ at CL in R v Winchester (1992) 58 A Crim R 345 at 350 and by King CJ in R v Shannon (1979) 21 SASR 442 at 451. See also R v Morton [1986] VR 863 at 866-8.
  
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  In a time of rising sentences, in conformity with community concerns to which Parliament has given expression in legislation, the discount for pleading guilty should be more rather than less: R v Bolton and Barker [1998] 1 VR 692 at 698.
  

In R v P & Ors [2007] VChC 3 the President of the Children’s Court, Judge Grant, imposed youth supervision orders or probation on eight young co-offenders. Each had pleaded guilty to:

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  representative counts of procuring by intimidation a young woman FS described as “mildly delayed in her intellectual development” to take part in an act of sexual penetration with two of them;
  
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  assault of FS; and
  
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  making child pornography, namely a film depicting FS engaging in sexual activity.
  

At [22]-[23] Judge Grant highlighted to the offenders the significance of their guilty pleas:

“The offending here is so serious that, in the absence of a plea of guilty and your willingness to participate in an appropriate treatment regime, you would have been at significant risk, had you been found guilty after trial, of being detained in a Youth Justice facility. It follows from what I have just said that I give great credit to your pleas of guilty. They are so significant because they relieve the victim of the burden of giving evidence. She is not compelled to re-live these terrible events.

Importantly, your pleas of guilty also indicate your remorse. The pleas of guilty indicate your understanding of the importance of accepting responsibility for what you have done.”
In R v Davy [2011] VSCA 98 at [34] Bongiorno JA (with whom Harper & Hansen JJA agreed) said:

“The practical benefit of a plea of guilty and the consequent sentence discount, particularly in a child sex abuse case, should not be undervalued. Not only is the trauma of a trial on a 19-count presentment avoided for the victims, but the recognition by the justice system of a real discount for such a guilty plea has an encouraging effect on those subsequently charged with such offences.”

It is clear from the above that a plea of guilty does not necessarily connote genuine remorse but is nevertheless entitled to consideration. In R v Fulop [2009] VSCA 296 at [15] Buchanan JA (with whom Nettle JA agreed) said:

“As to remorse, her Honour was not bound to find that the pleas entailed remorse. As Gleeson CJ and Gummow, Hayne and Callinan JJ said in Saganto v The Queen: ‘A plea of guilty is usually evidence of some remorse on the part of the offender.’ In the present case, there were countervailing factors bearing upon remorse, and in my view the sentencing judge was entitled to take them into account.”

In R v WWS [2009] VSCA 125 at [56] Vincent, Nettle & Neave JJA said:

“[H]er Honour made no error in finding that the applicant was not genuinely remorseful. Further, even if her Honour should have found that the applicant displayed some limited remorse, that remorse was so qualified and rationalised by the applicant that we do not consider it should have been given any weight in addition to that given for the guilty plea. Her Honour said she had given considerable weight to that plea, even though the applicant did not plead guilty to the offences at the first available opportunity.”

In R v Fisher [2009] VSCA 100 an attempt had been made to deceive the sentencing court for the purpose of obtaining a lesser sentence than that which justice requires. While noting at [80] that “it cannot be said that there has been an unqualified desire to submit to just punishment for the offence”, nevertheless Redlich & Dodds-Streeton JJA said at [81]:

“[T]he deception did not relate to any aspect of the offending but to one aspect of the personal circumstances of the applicant. We doubt that the deception supported the inference that the appellant had no remorse at all. Rather, the discount for a plea of guilty was to be reduced to reflect the extent to which the offender’s remorse was qualified by such conduct. And that part of the discount for the guilty plea that was to be afforded on utilitarian grounds, was not to be reduced: R v Pajic [2009] VSCA 53.”

In Va v The Queen [2011] VSCA 426 at [17] Maxwell P and Redlich & Weinberg JJA – citing Cooper v The Queen (1998) 103 A Crim R 51, 55 (Winneke P with Tadgell JA agreeing) – stated that a sentencing court should always distinguish between regret and remorse. In R v Kells [2012] VSC 53 – after referring to Va v The Queen – Macaulay J said at [29]: “I accept that even genuine remorse is never likely to be entirely ‘pure’ and devoid of some degree of self interest: R v Whyte (2004) 7 VR 397, 403 [21]. Nevertheless, I am satisfied that your expressions of remorse at the time were much more than mere self-pity at the situation in which you had placed yourself.”
In R v Pajic (2009) 23 VR 527 Redlich JA had stated at [19]-[20]:

“One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case: see R v Donnelly [1998] 1 VR 645, 648. Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent: Siganto v The Queen (1998) 194 CLR 656, [22]-[23] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition: R v Shannon (1979) 21 SASR 442, 452; R v Winchester (1992) 58 A Crim R 345, 350 (Hunt CJ at CL).

It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations: see R v Thompson; R v Houlton (2000) 49 NSWLR 383, [137]-[138] (Spigelman CJ); R v Cameron (2005) NSWCCA 357, [22]-[24].. And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion.”
Although Pajic has been followed in numerous cases {R v Fisher (2009) 22 VR 343, [81]; R v RLP [2009] VSCA 271, [42]–[44]; Andrick v The Queen [2010] VSCA 238, [35]; Ciantar v The Queen; Rose v The Queen [2010] VSCA 313; [31]; Chalmers v The Queen [2011] VSCA 436, [51]; Cliffard v The Queen [2011] VSCA 56, [16]}, certain aspects of it were challenged in R v Phillips [2012] VSCA 140 one of the issues. Accordingly a Full Bench was assembled. None of the five judges dissented from the reasoning of Ashley & Redlich JJA in Pajic. In a joint judgment with which Maxwell P, Nettle JA & Harper JA separately agreed, Redlich JA & Curtain AJA said at [36]:

“[T]he following are the relevant matters which should inform a determination of the extent of the discount to be given for a plea of guilty:

1. A discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case.

2. The exceptional case arises where the gravity of the offending conduct is of such an order that no discount from the maximum sentence is appropriate.

3. The strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea: Chalmers v The Queen [2011] VSCA 436, [51].

4. A greater discount for the utilitarian benefit may be justified where the plea involves very considerable savings of costs to the community or where some other very significant benefit can be seen to flow from the plea.

5. It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.

6. Where there is evidence or a submission accepted by the sentencing judge as to the unqualified existence of these subjective criteria, they should be fully reflected in the discount.

7. The utilitarian benefits which flow from the plea may also inform the extent of the discount to be allowed for the offender’s willingness to facilitate the course of justice.

8. The weakness of the Crown case, if apparent, may also inform the extent of the offender’s willingness to facilitate the course of justice.

9. The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit of the plea and the subjective criteria, unless there is reason to conclude that less than the full discount should be allowed for the subjective criteria.

10. The strength of the Crown case can only support an inference that these subjective criteria played little or no, role in the decision to plead guilty where the state of the contextual evidence on the plea permits such a conclusion.”

In DPP v Carr [2012] VSCA 299 at [70] the Court of Appeal – citing earlier decisions in R v Bartlett [1996] 2 VR 687, 698-9 and Sherna v The Queen [2011] VSCA 242 at [18], [41] & [88] as well as a number of decisions from other states – held that “a rejected offer to plead guilty to a lesser offence than that upon which the Crown has proceeded may also be considered to have a utilitarian value when the offender has ultimately been convicted of that lesser offence”.
See also R v Rogers [2008] VSCA 114 at [48]-[52]; Dawid v DPP [2013] VSCA 64 at [20]-[29].