Criminal division – sentencing
‘Discount’ for guilty plea and/or admission of offence
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- 362A Sentence discount for guilty plea
11.2.8.1 ‘Discount’ for guilty plea and/or admission of offenceIn R v Robertson [2005] VSCA 190 at [12] Chernov JA – with whom Maxwell P & Callaway JA agreed – cautioned against the granting of a sentencing discount which was “illusory”: “Given his full and frank admissions to the police about the offending conduct, I think that his pleas of guilty evidenced genuine remorse, his acceptance of responsibility for the offending conduct as well as a willingness to facilitate the administration of justice. I consider that these factors justify, in this case, a sentencing discount that is considerably greater than ‘minimal’. But, even if it could be properly said that the pleas of guilty did not demonstrate genuine remorse and acceptance of responsibility by the appellant, they do nevertheless show a willingness on his part to facilitate the course of justice and, for that reason alone, a discount greater than "minimal" would have been warranted in this case. On either basis, the sentencing discount should not be illusory but should be seen to be reflected in the sentence imposed.” In R v DTR [2005] VSCA 291 at [9] Buchanan JA – with whom Callaway & Vincent JJA agreed – noted that the appellant had pleaded guilty at the first opportunity, had regretted his actions immediately and was clearly truly remorseful. At [11] His Honour referred with approval to R v Ellis [1986] NSWLR 603 at 604 where Street CJ said: “Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward to 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." In R v Doran [2005] VSCA 271 at [14] Buchanan JA – with whom Eames & Nettle JJA agreed – explained that the consequences of the appellant’s voluntary confessions of crimes which might otherwise not be detected were that “they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions”. See also Ryan v R (2001) 206 CLR 267 especially at 295 per Kirby J; R v Brazel (2005) 153 A Crim R 152 at 159 per Callaway JA; R v CLP [2008] VSCA 113 at [22]-[24] where Neave JA noted that “weight should also be given to an admission of sexual offences because it may help the victims to recover from the harm caused to them”. See also JBM v The Queen [2013] VSCA 69 at [39]-[50]. In R v DW [2006] VSCA 196 Nettle, Neave & Redlich JJA said at [19]: “In our view the judge was entitled to take into account, as a factor which limited the discount to be allowed for the appellant's plea of guilty, that the appellant was so little concerned about the effects of his offending upon his granddaughter that he should choose to subject her and her parents to the ordeal of a committal hearing and, worse, prolonged cross-examination. It is one thing to plead guilty at the door of the court when it looks like the game may be up. The law takes the view that that is worth a discount. But it is quite another to plead guilty immediately and thereby save the victims and the community any further burden. That is likely to attract a much larger discount and a good deal more respect.” In R v Guthrie & Nuttall [2006] VSCA 192 at [75]-[79] Chernov, Vincent & Redlich JJA - adopting dicta from R v Hall (1994) 76 A Crim R 474 and R v Ioane [2006] VSCA 86 – held that it was a sentencing error to balance the plea of guilty against the seriousness of the offence as the sentencing judge had done when he said: “The extreme gravity of your conduct outweighs the benefit to which you might otherwise be entitled for your plea of guilty.” The sentencing remarks of King J in R v Williams [2007] VSC 131 make it clear that it is “pragmatic and utilitarian” to give a discount to an offender who has pleaded guilty even though he had no genuine remorse for his crimes. In sentencing the offender to life imprisonment with a minimum of 35 years on 3 counts of murder and one count of conspiracy to murder, her Honour said at [129]: “I do intend to impose a minimum term, but that is on the basis of one significant factor only, which are your pleas of guilty to these offences. Whilst I find that you do not have any genuine remorse for the crimes, I am still obliged to take into account in your favour that you have entered pleas of guilty. It is pragmatic and utilitarian to give you a discount for entering those pleas, for by doing so you have prevented this Court from spending anywhere between 5 to 10 years hearing your trials and the appeals from those trials. Equally you have released the police officers involved in this task force to move onto other pressing cases that need investigating, and enabled those in the Office of Public Prosecutions to pursue other prosecutions. The amount of money that has been saved as a result is considerable. That behaviour must be encouraged. It must be made clear to all charged with offences, of whatever type, that if they do enter a plea of guilty to the offences that they will receive a real and significant discount. Without your pleas of guilty I would not have imposed a minimum term for these offences, even allowing for the other mitigating material upon which your counsel relied.” In R v BF [2007] VSCA 217 the Court of Appeal held at [31] & [52]-[57] that the appellant’s early guilty plea entitled him to some reduction of sentence and that “he was entitled to an added element of leniency because his admission of digitally penetrating his niece [who was herself uncertain whether she had been penetrated] provided the basis for the charge of digital rape: R v Ellis (1986) 6 NSWLR 603, 604 per Street CJ.” However, the Court of Appeal noted at [56] that the appellant’s admission should not be given as much weight as the admission to offences against unknown victims in Ryan v R (2001) 206 CLR 267, 272 [12] (McHugh J), 295 [95]–296 [98] (Kirby J) or the admission of an offence to which the offender had not previously been linked in any way in R v Brazel (2005) 153 A Crim R 152, 159 [21] per Callaway JA; [2005] VSCA 152. See also R v Marcus [2004] VSCA 155 (appellant who pleaded guilty to cocaine importation was entitled to leniency because he had disclosed two previous offences unknown to authorities); R v Doran [2005] VSCA 271 (appellant who was being investigated for particular sexual offences admitted committing other offences against children). In finding specific error in R v Andrick [2010] VSCA 238 – a case in which the appellant had pleaded guilty to two counts of theft, two counts of obtaining property by deception, one count of burglary and one count of attempting to obtain property by deception – Weinberg JA (with whom Ashley JA agreed) said at [34]: “A discount of only six months on a putative sentence of six years and six months, and six months on a putative non-parole period of five years, does not adequately reflect the utilitarian value of a plea of guilty, still less accord sufficient weight to such remorse as might otherwise be thought to attached to that plea.” Other cases in which the 'discount' has been discussed include R v Gray [1977] VR 225; R v Rostom [1996] 2 VR 97; R v Donnelly [1998] 1 VR 645; Cameron v R (2002) 209 CLR 339; R v Diep [2003] VSCA 203; R v Saw [2004] VSC 117 at [36]; DPP v Bennett [2004] VSC 207 at [33] per Cummins J; R v Bulger [1990] 2 Qd R 559; R v Tan (1993) 117 FLR 38; Pavlic v R (1995) 5 Tas R 186; R v Tasker & Tasker (2003) 7 VR 128 {[2003] VSCA 190}; R v Ly [2004] VSCA 45 at [19]-[22] per Coldrey AJA; R v Taing [2004] VSCA 46; R v Kittikhoun [2004] VSCA 194 at [9]; R v Stephen Mark Makin [2004] VSC 485 at [25]-[28]; R v Nikodjevic [2004] VSCA 222 at [28]-[33]; R v HNT [2005] VSCA 12 at [14]; R v Brazel [2005] VSCA 56 at [21]-[22]; R v Le; R v Nguyen [2005] VSCA 284 at [8], [13] & [17]; R v Sullivan [2005] VSCA 286 at [26]; R v Slattery (Sentence) [2008] VSC 81 at [35]; R v Morrison [2011] VSC 311 at [27]; R v Coombes [2011] VSC 407 at [75]-[83]; R v Sherna [2011] VSCA 242 at [16]-[22] & [52]-[97]; DPP v Breuer [2011] VSCA 244 at [17]-[22]; R v Rintoull [2011] VSCA 245 at [34]-[36]; John Gordon v The Queen [2013] VSCA 343 at [31]-[42] & [70]-[72]; Hunter v The Queen [2013] VSCA 385 at [13]-[24] & [107]-[135]. Until 30/06/2008 it had been the law in Victoria that a sentencing judge was not obliged to quantify any discount which he or she had given for a plea of guilty: see e.g. dicta of the Court of Appeal in R v McIntosh [2005] VSCA 106 [25] (Chernov JA), [30] (Batt JA) and R v Rowlands [2007] VSCA 14 at [10]. However that was altered by s.362A of the CYFA, introduced as and from 01/07/2008 by s.4 of the Criminal Procedure Legislation Amendment Act 2008 (Vic) [Act No.8/2008]. That section provides: 362A Sentence discount for guilty plea
the Court must state in respect of-
the sentence that it would have imposed but for the plea of guilty.
the sentence that it would have imposed but for the plea of guilty.
Section 6AAA of the Sentencing Act 1991 (Vic), introduced on the same day by s.3 of the amending Act, imposes a broadly similar obligation on a Court sentencing an offender under the Sentencing Act to a term of imprisonment or imposing a fine exceeding 10 penalty units or an aggregate fine exceeding 20 penalty units. Ironically s.6AAA is less onerous on a court ordering imprisonment under the Sentencing Act than is s.362A on a court ordering sentences of detention on a child under the CYFA in that s.6AAA(2) does not require the court to make a declaration in respect of each individual offence whereas s.362A(1)(c) requires the Children’s Court to make a declaration in respect of each individual sentence of detention. In his ruling on s.6AAA handed down on 22/07/2008 in R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305 Kaye J held at [8]:
However, his Honour went on to discuss the considerable difficulties in putting that legislative intention into effect, describing the process at [11] as “artificial and difficult from an intellectual point of view” and referring at [13]-[14] to the divergent approaches of the Courts of Criminal Appeal in NSW and South Australia in quantifying an appropriate ‘discount”. At [15] his Honour concluded: “[I]n the circumstances of this case, it is not possible to hypothesise, realistically, what sentence I would have imposed on the prisoner if he had not pleaded guilty, but if all the other circumstances of the case were the same. Nonetheless, in pronouncing sentence, I must endeavour to do so, in order to comply with s 6AAA, and to inform the prisoner of the term of imprisonment he has been spared as a result of his guilty plea. The only method by which I can achieve that object is to determine, first, the appropriate sentence to be imposed on the prisoner by an instinctive synthesis of all the circumstances, including his guilty plea, as attended by remorse and an endeavour to be cooperative. I have then attempted to identify how much longer the sentence would have been if the prisoner had not pleaded guilty. In that way I have, somewhat artificially, arrived at the hypothetical sentence postulated by s 6AAA, if the prisoner had not pleaded guilty. Doing the best I can, I estimate that the prisoner’s guilty plea, which I consider to be made with remorse and with the intention to facilitate the course of justice, has operated to reduce the prisoner’s head sentence, and minimum non-parole period, each by a period of two years. Thus, hypothetically, if the prisoner had not pleaded guilty, for the purposes of s 6AAA, I state that I would have imposed a sentence of 23 years’ imprisonment with a minimum non-parole period of 18 years.”
“In my opinion, a significantly greater or arithmetically disproportionate reduction of the non-parole period (compared with the head sentence) due to a guilty plea, particularly where it promotes or bespeaks rehabilitation, is consistent with, rather than precluded by, the principles expressed in applicable authorities.” In R v Burke [2009] VSCA 60 the Court of Appeal rejected a submission that the ‘notional’ sentence announced in accordance with s.6AAA is appealable, holding at [30] that this notional sentence “is not part of the sentence imposed”. There appears to be a conflict of authority on whether the discount allowed on a plea of guilty is examinable for specific error rather than merely being a particular ground of manifest excessiveness. In R v Scerri [2010] VSCA 287 Maxwell P & Buchanan JA held that it was not so examinable. In R v Howard [2009] VSCA 281 at [15] the Court of Appeal held that where a sentencing judge has grossly undervalued the importance of the discount for pleading guilty, it may be viewed as a sentencing error and the sentencing discretion re-opened. In R v Ciantar and Rose [2010] VSCA 313 at [36] Nettle & Bongiorno JJA left the question open, stating that to the extent that there is a difference between Howard and Scerri, it should be resolved in the context of a case where it is likely to effect the outcome. In R v Rizzo [2011] VSCA 146 at [33] the Court of Appeal (Warren CJ, Neave JA & Lasry AJA) referred to R v Scerri with apparent approval. In R v Saab [2012] VSCA 165 the Court of Appeal (Buchanan, Weinberg & Mandie JJA) discussed the cases of Burke, Scerri, Howard, Ciantar and Rose & Rizzo – as well as the cases of Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82 at [67], Lunt v The Queen [2012] VSCA 62, Cedic v The Queen [2011] VSCA 258, Phillips v The Queen [2012] VSCA 140, DPP (Vic) v Terrick (2009) 24 VR 457,459-60, Gorladenchearau v The Queen [2011] VSCA 432, Pesa v The Queen [2012] VSCA 109 & R v Giles [1999] VSCA 208 – and favoured the Scerri dicta, holding at [58]: “We think that the line of authority holding that a s 6AAA statement is generally not to be taken to exhibit error should be followed.” Yüklə 1,78 Mb. Dostları ilə paylaş:
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