Sentence reduced from 9 years' imprisonment to 8 years' imprisonment with eligibility for parole

R v Heferen [1999] WASCA 81; (1999) 106 A Crim R 89

R v Lowndes [1999] HCA 29; (1999) 195 CLR 665

Miles v The Queen (1997) 17 WAR 518

Verschuren v The Queen (1996) 17 WAR 467

1 MURRAY J: I entirely agree with the reasons to be published by Miller J to which I have nothing to add.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of Miller J. They reflect my own reasons for the decision to reduce the appellant's sentence to one of 8 years' imprisonment with an order for eligibility for parole. There is nothing I wish to add.

3 MILLER J: On 22 March 2002 the appellant's appeal against sentence was allowed and the sentence of 9 years' imprisonment imposed for the offence of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981, reduced to one of 8 years' imprisonment with an order for eligibility for parole. The Court then undertook to give reasons for that decision and these are the reasons.

4 The appeal came before the Court by order of the High Court of Australia which set aside an earlier order of the Court of Criminal Appeal dismissing the appeal of the appellant. The matter was remitted to this Court for further hearing and determination consistent with the reasons for judgment of the High Court.

5 The relevant facts are set out in the joint judgment of Gaudron, Gummow and Callinan JJ in the High Court. They reveal that the appellant was arrested at Perth airport on 22 April 1999 after a quantity of tablets was found in his hand luggage. He initially denied any knowledge of the contents of that luggage. He was charged with having in his possession, with intent to sell or supply, a prohibited drug, the common description of which is ecstasy. He appeared before the Court of Petty Sessions on a number of occasions and elected a preliminary hearing.

6 Meanwhile, analysis of the substance found in the possession of the appellant established that it was methylamphetamine, commonly known as speed, and not the substance known as ecstasy. This analysis was dated 28 June 1999, and some months later, on 10 November 1999, Legal Aid, acting for the appellant, advised the Director of Public Prosecutions that the appellant wished to plead guilty to the charge of possession of a prohibited drug with intent to sell or supply, but pointing out that the complaint as drafted was incorrect and should be amended to reflect the fact that it was speed, not ecstasy, which was in the possession of the appellant when apprehended. The amendment was made on 17 November and the appellant forthwith entered a plea of guilty and was committed to the District Court for sentence.

7 In the District Court the sentencing Judge considered that the offence to which the appellant had pleaded guilty was one which would normally have brought a sentence of 10 years' imprisonment but having regard to his plea of guilty, it was reduced to one of 9 years' imprisonment. An order for eligibility for parole was made.

8 On appeal to the Court of Criminal Appeal it was held that there was no error on the part of the learned sentencing Judge in discounting the sentence of 10 years by only one year. Pidgeon J (with whom Ipp and Owen JJ agreed) considered that whilst there had been an undoubted saving to the administration of justice in the District Court by reason of the appellant's plea, there had been no saving in the Magistrate's Court. His Honour was also of the view that although a plea of guilty could indicate remorse, there was no evidence of remorse in this case, particularly as the offence was carefully planned and there had been no element of co-operation with authorities on the part of the appellant. His Honour pointed out that the plea was the only mitigating circumstance in the case and with the absence of remorse and the failure to co-operate in the Court of Petty Sessions, the discount of 1 year was sufficient credit for the appellant.

9 In the High Court, Gaudron, Gummow and Callinan JJ pointed out that it is now well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. Reference was made to Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, particularly at [22] where it was observed that the plea of guilty is taken into account in mitigation for two particular reasons. The first is that it is usually evidence of some remorse on the part of the offender and the second is the pragmatic ground that the community is spared the expense of a contested trial.

10 However, Gaudron, Gummow and Callinan JJ extended a little what had been said in Siganto v The Queen by putting the importance of the plea of guilty on the following basis (at [22]):

"... the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."

Their Honours pointed out that whether or not a plea of guilty is a "fast-track" plea will not necessarily determine the extent to which mitigation should be allowed.

11 In the present case Gaudron, Gummow and Callinan JJ considered the Court of Criminal Appeal to have been in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly specify the substance which he had in his possession. Further, their Honours considered the Court to have been in error in stating that there had been "no saving in the Magistrate's Court" as the appellant's plea of guilty had rendered a preliminary hearing unnecessary.

12 At the hearing before this Court it was submitted on behalf of the appellant that in resentencing the appellant it was necessary to take account of the fact that he had pleaded guilty at the earliest possible opportunity; his early plea of guilty had meant a saving to the administration of justice in both the Court of Petty Sessions and the District Court; and his plea was "not devoid of remorse, (but) rather it was indicative of a willingness to facilitate the administration of justice". It was contended that the last submission was correct because the plea of guilty had been entered at the earliest possible opportunity.

13 In my view the judgment of Gaudron, Gummow and Callinan JJ in the High Court makes it quite clear that a plea of guilty does not of itself necessarily import remorse. It may do so and perhaps it usually does (see Siganto v The Queen (supra) at [22]). The question, however, is the extent to which the plea indicates remorse, acceptance of responsibility, and willingness to facilitate the course of justice. There may be one or more of these factors included within it.

14 In the present case, there does not appear to be any evidence of remorse and indeed on the application for special leave before the High Court in Perth on 24 October 2001, the appellant, in answer to a question by Gaudron J, denied that he had any knowledge of the drug with which he was charged. He went on to say that what he believed, was that "it was certainly not drugs ... it was a package that was to be passed on to someone else". I accept the submission of the respondent that the appellant (who appeared in person on the special leave application) gave a very clear indication even at that time that he had no remorse in relation to the offence he had committed.

15 Nor can I find any evidence of acceptance of responsibility. Acceptance of responsibility in this context means acceptance of moral responsibility, not legal responsibility. In essence, it seems that the most that can be said for the appellant in mitigation is that he was willing to facilitate the course of justice and at the first opportunity after the complaint against him was amended to reflect the true charge, he pleaded guilty to it. It was in this respect that the Court of Criminal Appeal at the earlier hearing erred in its assessment of the situation. What the appellant did was facilitate the course of justice both in the Court of Petty Sessions and in the District Court, avoiding the need for the Crown to conduct a preliminary hearing and avoiding the need for a trial in the District Court.

16 Counsel for the appellant contended in this Court that the discount commonly afforded for a "fast-track" plea of guilty is 30 per cent, relying upon Trescuri v The Queen [1999] WASCA 172 where Anderson J (at [25]) said:

"Sentencing discounts for pleas of guilty under the fast track system range between 20 per cent and 35 per cent, and are commonly around 30 per cent - Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995, per Malcolm CJ, at 5. Whilst the extent of the discount for early pleas of guilty is a matter of discretion, in respect of which there is no hard and fast rule, I think that public policy considerations in obtaining immediate pleas of guilty in cases of this kind would usually result in a larger, rather than a smaller, discount."

17 Counsel for the respondent contended that a discount of the order of 30 per cent for a fast-track plea of guilty would only be appropriate where there was "both the utilitarian value of the plea and acknowledgement of remorse". It was argued that in the present case the appellant's plea of guilty demonstrated no co-operation, nor any remorse. It was contended that the appropriate utilitarian value of a guilty plea only was a discount within the range of 10-25 per cent, reliance being placed upon what was said by Spigelman CJ in R v Thomson & Anor [2000] NSWCCA 309; (2000) 115 A Crim R 104 at [141] - [159]. Commencing at [147] his Honour reviewed practices in New Zealand, Western Australia and South Australia, pointing out:

"In New Zealand, the Court of Appeal has rejected a uniform minimum discount of 25 per cent for an early plea: Liava'a (unreported, Court of Appeal, NZ, 17 August 1998). The court has not promulgated any specific quantum or proportion: see Mako [2000] NZCA 407; [2000] 2 NZLR 170. A review of the New Zealand authorities suggest a range of 10-33 per cent, with the most common range being 20-25 per cent: Geoffrey Hall, 'Sentencing', Butterworths Current Law, par 1.7.3.

In Western Australia, at least with respect to sentences under that State's 'fast track system', the discount is 'often' of the order of 20-25 per cent to 30-35 per cent: Verschuren at 469; 2-3; Miles (1997) 17 WAR 518 at 521.

In South Australia a discount of 25 per cent for an early plea of guilty has often been referred to: Sutherland; Nixon (1993) 66 A Crim R 83 at 90; Kendall (unreported, Court of Criminal Appeal, SA, No 450 of 1995, 16 June 1997); Allen [1999] SASC 346. Discounts in the range of 15-25 per cent have been described as 'quite common': Rooke, per Doyle CJ."

18 After pointing out that the cases referred to were of limited assistance because they referred to discounts which did not involve any separation of utilitarian benefits from other considerations, his Honour went on (at [154]):

"There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the 'discount' will be reflected in a step down in the hierarchy of sentencing options."

19 In my view the submissions of the appellant have mistakenly assumed that a discount of the order of 30 per cent will automatically be afforded for a fast-track plea of guilty without more. As Gaudron, Gummow and Callinan JJ have pointed out, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. Not every "fast-track" plea will attract a discount of 30 per cent and I do not take Anderson J in Trescuri v The Queen (at [25]) to be suggesting that it will. That passage does not seek to differentiate between questions of remorse, acceptance of responsibility and willingness to facilitate the course of justice. Once that is done, and if it be the case that the plea is really limited to a plea of "utilitarian value", it is apparent that a discount of 30 per cent will not necessarily be the only discount to be afforded an accused person. Rather, as Spigelman J pointed out R v Thomson & Anor (supra) at [153] the determination of where, within an appropriate range, the discount should fall in any particular case is solely a matter for the discretion of the sentencing Judge.

20 In the present case the Court was of the opinion, after hearing argument, that the appropriate level of discount was such as to result in a sentence of 8 years' imprisonment rather than the 9 years imposed by the sentencing Judge. It was a case in which the appellant had indicated at an early stage a willingness to facilitate the course of justice and had thereby assisted both the Court of Petty Sessions and the District Court. It was a "utilitarian plea" for which, in the view of the Court, he was entitled which may be described as being 20 per cent of the sentence of 10 years' imprisonment which, without the plea of guilty, the sentencing Judge said he would have imposed.