Ground Three
16 3.(i) The discount for a plea of guilty was comprehensively considered by this Court in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The decision is a discretionary one for the sentencing judge which will be significantly informed by consideration of the time at which the plea was given.
17 The circumstances of the present case are not uncommon. The appellant maintained his plea of not guilty at committal and for a lengthy period thereafter, which required the Crown to marshal resources in the expectation of having to prosecute a defended trial. Shortly before that trial the accused bargained for a reduced charge in consideration for a plea. Because of the need for the Crown to prepare for the trial the utilitarian value of the plea was significantly diminished as against the circumstance where the appellant pleaded guilty at or before the committal.
18 In my opinion in these circumstances it will be a rare case where it is appropriate to make a finding which entitles the offender to a discount of 25%. A lesser discount will most likely be inevitable.
19 In the present case it was submitted that the applicant could not have offered a plea to a charge of manslaughter in circumstances where the Crown was seeking to maintain the murder charge. It was said to be of no utility because the applicant knew it would not be accepted. It was also submitted that, in some way the offer of a plea to manslaughter would have compromised the applicant's capacity to defend the murder charge.
20 This submission must be rejected. If a plea had been offered and rejected the matter would have passed without comment and the trial would have been conducted without the jury being aware of the applicant's preparedness to plead to a lesser charge. Such an offer is made on a "without prejudice" basis: (see Chapter 20, Prosecution Guidelines of Director of Public Prosecutions (NSW)). However, if it had been offered, the Crown would have had an early opportunity to avoid the necessity to apply significant resources to the preparation of the trial. If offered, but not accepted, the applicant would nevertheless be able to point to an offer which entitled him to the full benefit of the available discount: R v Dib [2003] NSWCCA 117; R v Nguyen [2005] NSWSC 600 at [52].
21 3.(ii) and (iii) The agreement between the prosecutor and the applicant was referred to as a plea agreement, the expression used to describe such an arrangement in GAS v The Queen (2004) 217 CLR 198. The limitations inherent in such an agreement were considered and explained in GAS. The relevant principles, as outlined by the Court at 210-11, should be restated:
"First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person Barton v The Queen (1980) 147 CLR 75 at 94-95. The judge has no role to play in that decision. There is no suggestion, in the present case, that the judge was in any way a party to the "plea agreement" referred to. The appellants, through their counsel, evidently indicated to the prosecutor that, if a charge of manslaughter were to be substituted for the charge of murder, they would plead guilty, and the prosecutor filed a new presentment on that understanding. However, the charging of the appellants was a matter for the prosecutor.
Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely and, in this case, it was made with the benefit of legal advice. Once again, the judge is not, and in this case was not, involved in the decision. Such a decision is not made with any foreknowledge of the sentence that will be imposed. No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, but that advice is the responsibility of the accused's legal representatives.
Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed R v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts Cheung v The Queen (2001) 209 CLR 1 at 9. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case R v Olbrich (1999) 199 CLR 270 at 278. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor.
Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.
Fifthly, an erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law. If a sentencing judge has been led into error by an erroneous legal submission by counsel, that may be a matter to be taken into account in the application of the statutory provisions and principles which govern the exercise of the appeal court's jurisdiction. "
22 From this statement of principles it is plain that any agreement in the nature of a plea agreement can have only limited practical effect. If it includes an agreement as to the facts which may be incorporated into an agreed statement of facts the capacity of the sentencing judge to decide the relevant facts will be affected and, if no other evidence is tendered, may be confined to the facts which have been agreed.
23 With respect to any aspect of the agreement which relates to the appropriateness of any particular sentence, or a component of it, the Crown's agreement is confined to an undertaking to make a submission to the sentencing judge consistent with the terms of that agreement. The agreement can neither bind the judge nor be given any greater weight than is appropriate to a submission of counsel with knowledge of the facts relevant to the offence and the offender. It must of course be carefully considered but carries no greater weight than any other submission which the Crown may make in the sentencing process. If it were otherwise the fundamental assumption that it is for the judge to determine an appropriate sentence would be seriously compromised.
24 The role of an agreement between the prosecutor and an accused in the ultimate penalty has caused some difficulties in civil enforcement proceedings in the Federal Court. Notwithstanding an acknowledgement that it is for the Court to determine the appropriate penalty the approach has been taken that, if the agreed penalty is within the appropriate range, the court will accept it, even if the judge would have imposed a different penalty from within the permissible range: see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993. That approach is not without its critics who have sometimes expressed themselves in strong language: see Australian Prudential Regulation Authority v Derstepanian & Anor [2005] FCA 1121 and Australian Securities and Investment Commission v Vizard (2005) 219 ALR 714. The approach taken by Barrett J in the New South Wales Supreme Court in Australian Securities and Investments Commission v Elm Financial Services Ltd & Ors (2005) 55 ACSR 411 at 413 acknowledged the Full Federal Court's position in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Mobil Oil but nevertheless his Honour stated that "the court is in no way constrained by the parties agreement."
25 I apprehend that the role of an agreement between the parties in civil penalty proceedings may be the subject of continuing discussion, if not debate, and the principles may not be finally settled. However, when sentencing for crimes in the criminal context the role of the court is fundamental and in my view cannot be displaced or qualified by any agreement of the parties. That agreement can only extend to an understanding of the facts to be placed before the Court and the submissions which will be made by the Crown. Whether the sentence which the Crown submits is appropriate happens to fall within or outside the appropriate range is irrelevant. The Court will consider that submission together with the submission on behalf of the offender but must then determine the appropriate sentence for itself.
26 In my opinion the sentencing judge was correct in rejecting the joint submission arising from the agreement between defence counsel and the Crown in relation to the non-parole period. Having regard to the objective criminality of the matters for which the applicant was sentenced, and in particular the circumstances of the manslaughter offence, a non-parole period of four to five years was entirely outside the available range. The non-parole period which his Honour determined was appropriate as was the discount for the plea of guilty. The difficulties arising from the present case would be avoided if prosecutors at first instance kept in mind the principles in GAS v The Queen, and followed the practice laid down in Chapter 28, Prosecution Guidelines of the Director of Public Prosecutions (NSW).
27 3.(iv), (v), (vi) These matters may be dealt with together. With respect to the matter raised by sub-ground (v) the relevant facts are contained in paragraphs 14 and 15 of the document incorporating the agreed facts. The essential elements may be restated as follows:
"14. While holding [the deceased] in a 'bear hug' face-to-face Hussein was shot in the top front part of his left thigh. … Witnesses reported hearing two loud gun shots about the time Hussein was seen to collapse to the ground. … The gun had dropped to the ground. … and spilled forth these unspent cartridges.
15. Immediately after Hussein had fallen to the ground, [applicant] produced a self-loading .38 calibre pistol from somewhere on his person and fired five rounds at [the deceased] …."
28 It is true, as the applicant submitted, that the agreed facts do not expressly state the sequence in which the events occurred. However, the dropping of the gun by the victim is included in paragraph [14] and the facts in relation to the shooting follow in paragraph [15]. Neither party submitted to his Honour that this was not the sequence in which the events occurred and accordingly the finding which his Honour made that at the time the applicant fired the fatal shots the deceased was disarmed "by the weapon falling to the ground and spilling its rounds" was available.
29 The suggestion made in the appeal was that his Honour should have found that it was the shooting of the victim by the applicant which caused the victim to drop his gun and accordingly the applicant should have been sentenced on the basis that the victim was in a position to shoot at the applicant when the applicant fired. There are two difficulties with this proposition. Firstly, as I have indicated it was not advanced at the hearing. Secondly, it would be difficult to understand in those circumstances how the defence made by the applicant could be found to be excessive. It was submitted that the excessive defence was confined to the firing of five rounds when a lesser number may have sufficed. However, the events relating to the firing of successive shots was not explained and there was no evidence as to whether any one or more of the bullets was the cause of the victim's death.
30 His Honour was required to reconcile the claim of excessive self-defence with the facts tendered, including the agreed facts. To my mind the only finding which his Honour could have made was that the applicant was aware that the deceased had dropped the gun, but that it might be retrieved and present a danger to him justifying the discharge of his own weapon. His Honour did not err in making this finding.
31 Unquestionably the findings his Honour made were open and no error is revealed.
32 3.(vii) The sentencing judge found that there were "aspects of the offender's personality that might indicate impulsiveness in his reaction to the danger he believed that the deceased posed to him and to the shooting of his uncle." This conclusion appears to have been based on the findings of Mr Watson-Munro, a psychologist and Dr Neilssen a psychiatrist. The opinions of both these persons were of course based upon the version of the events given to them by the applicant.
33 Mr Watson-Munro considered that the difficulties which the applicant had in his development gave rise to a state of "hypervigilance, significant anticipatory anxiety, sleep disturbance and a low threshold for frustration. The aggregate of these symptoms reflects a diagnosis of an adjustment disorder which I believe is of significant relevance to the dynamics surrounding the current offences … This appears to be very relevant to what allegedly occurred at the time of the shooting and the setting of Mr Ahmad holding a genuine fear that his life was about to end."
34 Dr Nielssen considered that the applicant did not report any symptoms of anxiety disorder prior to the offences but that these symptoms came after. However, he reported that the applicant was, when a child, knocked out for a considerable time when he was hit on the forehead by a rock. Although he could find no evidence of impaired frontal lobe function he was prepared to give the applicant the benefit of the doubt in considering the "likely effect of the injury is subtle underlying impairment in the speed of information processing, particularly in the presence of multiple stimuli."
35 Apart from the finding which I have referred to in relation to the applicant's personality his Honour also found that "his over reaction was in part due to the matters referred to in the reports before me." His Honour was referring to the evidence of Mr Watson-Munro and Dr Nielssen. Accordingly, his Honour had regard to the reports of these experts and in my opinion the sentences which his Honour imposed do not reflect any misuse of that material.
36 3.(viii) There was evidence before the sentencing judge of the regard in which the applicant was held by those in the community with whom he has had dealings. His Honour found that the applicant apart from this offence was a person of good character, had demonstrated remorse and may have good prospects of rehabilitation. His Honour expressly noted the large number of testimonials to the applicant's good character and also referred to the material of Dr Nielssen and Mr Watson-Munro. His Honour also had regard to the delay, a little over three years, in sentencing and appropriately recognised the plea of guilty.
37 The ultimate sentence reveals a non-parole period which is 68% of the head sentence. This, of course, is less than the statutory period and in my opinion was within the appropriate range having regard to the objective circumstances of the offences and the subjective features of the applicant. A finding of special circumstances which allows a variation from the statutory ratio is a discretionary matter: R v Simpson (2001) 53 NSWLR 704; R v AEM Snr [2002] NSWCCA 58 at [154]; R v Holmes & Ratu [2003] NSWCCA 258 at [28]. In my opinion the discretion available to his Honour did not miscarry.