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[2016] VSCA 237
Court of Appeal (Vic)
2016-10-10
Original judgment source is linked above.
DPP v Thomas (Unreported, County Court of Victoria, Judge Montgomery 1 October 2015)
[2016] VCC 141 (Judge Cohen)
CRIMINAL LAW - Appeal - Sentence - Guilty plea - Whether person who pleads guilty to Commonwealth offence entitled to discount for utilitarian benefit of plea - Cameron v The Queen (2002) 209 CLR 339, considered - Common law and State provisions concerning discount to be allowed for a plea of guilty considered - R v Tyler [2007] NSWCCA 247; (2007) 173 A Crim R 458, not followed - Crimes Act 1914 (Cth) s 16A(2)(g).
PRECEDENT - Comity - Decision of intermediate appellate court explaining reasoning of High Court - Whether other courts obliged to follow unless plainly wrong - Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609, approved.
CRIMINAL LAW - Sentence - Comparable cases - Utility of schedule of comparable cases - Schedule must be accompanied by articulation of unifying principles revealed by cases referred to - Prosecution must make plain purpose for which each case is relied on - Use of contrasting cases permissible - Sentencing judge not restricted to consideration of sentences in cases referred to by parties when fixing sentence.
CRIMINAL LAW - Appeal - Sentence - Manifest inadequacy - Attempted possession of commercial quantity of border controlled drug - 4.8 times commercial quantity threshold - Respondent Thomas sentenced to 5 years' imprisonment with 3 years non-parole period - Sentence manifestly inadequate - Appeal allowed - Misapplication of principle - Re-sentenced to 9 years' imprisonment with 6 years and 3 months non-parole period.
CRIMINAL LAW - Appeal - Sentence - Manifest inadequacy - Importation of commercial quantity of border controlled drug - 5.29 times commercial quantity threshold - Respondent Wu sentenced to 6 years and 6 months' imprisonment with 3 years and 6 months non-parole period - Sentence manifestly inadequate - Appeal allowed - Re-sentenced to 10 years and 6 months' imprisonment with 7 years and 6 months non-parole period.
PRIMARY CASES CONSIDERED - Cameron v The Queen (2002) 209 CLR 339 - R v Tyler [2007] NSWCCA 247; (2007) 173 A Crim R 458 - R v Winchester (1992) 58 A Crim R 345 - R v Gray [1977] VicRp 27; [1977] VR 225 - R v Shannon (1979) 21 SASR 442 - Phillips v The Queen (2012) 37 VR 594 - R v Place [2002] SASC 101; (2002) 81 SASR 395 - R v Morton [1986] VicRp 82; [1986] VR 863 - R v Thomson and Houlton (2000) 49 NSWLR 383 - R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 - Siganto v The Queen (1998) 194 CLR 656 - R v Bugeja [2001] NSWCCA 196 - Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; (2015) 298 FLR 397 - R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215 - R v RND [2002] VSCA 192 - Moody v French [2008] WASCA 67.
Mr M Pedley, Solicitor for Public Prosecutions (Cth)
Discount for the utilitarian benefit of the plea of guilty
1 The law in Victoria has long been that for Commonwealth and State offences a sentencing judge must take into account a plea of guilty, regardless of whether or not it reflects or is accompanied by evidence of remorse or contrition.[1] This is because, of itself, 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.
2 The present appeals raise the question whether a discount for the utilitarian benefit of a plea of guilty is attracted in the case of a Commonwealth offence. The Commonwealth Director of Public Prosecutions submits that it is not. She submits that this follows from s 16A(2)(g) of the Crimes Act 1914 (Cth) ('Crimes Act'). Alternatively, it is submitted that this Court is bound to follow the decision of the New South Wales Court of Appeal in R v Tyler,[2] and subsequent cases, to like effect. Those cases apply to sentencing for Commonwealth offences, certain observations made by members of the High Court in Cameron v The Queen,[3] to the effect that the rationale for a discount for a plea of guilty is to be seen, not on the basis that the plea has saved the community the expense of a contested hearing, but on the basis that the plea is seen, subjectively, as showing the willingness of the offender to facilitate the course of justice.[4]
3 The respondents submit that the discount for utilitarian benefit is available under s 16A(2)(g) in the same way as it is for sentencing in respect of State offences. They submit that this follows as a matter of construction and that the Court should not follow New South Wales authority to the contrary. For the reasons set out below, both these submissions should be accepted.
4 Each of these appeals raises two related issues. In sentencing for a Commonwealth offence, is a discount to be allowed for the objective utilitarian benefit of the plea of guilty? Second, is there a material difference between a discount for a willingness to facilitate the course of justice, as discussed in Cameron, and that allowed for the utilitarian benefit of the plea of guilty?
5 We have proceeded on the assumption that, at least in some cases, there may be a material difference between a discount for willingness to facilitate the course of justice and a discount for the utilitarian benefit. If a plea of guilty necessarily reveals a willingness to facilitate the course of justice, that willingness might not always attract the same discount as that which might be warranted if the utilitarian benefit were to be taken into account. Two examples will suffice to show that may be so. First, the discount attributable only to the subjective willingness of an offender for justice to take its course might not fully reflect, and give credit for, the utilitarian benefit in avoiding an especially long, costly and arduous contested trial. Second, the strength of the prosecution case has no bearing upon the discount to be allowed for the utilitarian benefit of the plea[5] but it may be more fully reflected in the discount to be allowed for the willingness to facilitate the course of justice. We shall return to the above assumption later in these reasons. We shall first address the common questions before turning to the individual merits of each of the appeals.
6 The Director's argument may be summarised as follows:
(a) The question whether a discount is available in respect of the utilitarian benefit of a plea of guilty to a Commonwealth offence is to be determined by reference to s 16A(2)(g) of the Crimes Act.
(b) A sentencing court must take account of the fact of the plea of guilty. Having regard to the text, context and purpose of s 16A(2)(g) of the Crimes Act, it is to be construed as meaning that a sentencing court must take into account the objective utilitarian benefit of a plea of guilty.
(c) We consider the view expressed in Tyler, that Cameron altered the nature and extent of the discount to be allowed for a plea of guilty for Commonwealth offences, to be plainly unsustainable. Intermediate appellate authority is quite divided as to how the joint reasons in Cameron are to be understood. In any event, the principle of comity does not require one appellate court to accept another appellate court's understanding of the meaning to be given to reasons in a High Court judgment.
(d) Cameron was not concerned with a Commonwealth offence or the construction of s 16A(2)(g) of the Crimes Act. Further, there was no reference to s 16A(2)(g) in Tyler nor any consideration of whether statute governed the discount to be allowed for the fact of the plea of guilty or whether the statute could have been modified by the common law.
(e) Section 16A(2)(g) copied s 10(g) of the Criminal Law (Sentencing) Act 1988 (SA), as it originally stood.[7] That provision and similar statutory provisions in other States require a sentencing court to take account of 'the fact' of the plea of guilty. Intermediate appellate courts have consistently construed the State provisions, both before and since Cameron, as meaning that a discount is to be allowed for the utilitarian benefit to the administration of justice of the plea of guilty. Given the common features of the text, purpose and context of the State and Commonwealth provisions, s 16A(2)(g) should be given the same construction.
(f) Tyler and other intermediate appellate decisions that have not allowed a discount for the utilitarian benefit of the plea of guilty for Commonwealth offences should not be followed. They are inconsistent with other appellate authority both before and since Cameron, which in our opinion has correctly allowed a discount for the utilitarian benefit of the plea for Commonwealth offences.
(g) A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender's plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender's willingness to follow that course, often described in the authorities as 'co-operation', vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.
(h) As a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest or the absence of remorse. Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of that plea. However, the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, will not always have the same mitigating weight as the utilitarian benefit of avoiding a contested trial. For that reason, while statute requires a sentencing court to have regard to the fact of a plea of guilty, it is important that the utilitarian benefit be adequately reflected. We do not understand Cameron to say anything to the contrary.
8 The Crown appeals of Thomas and Wu were heard together. The Director appeals their sentences, inter alia on the ground that the sentencing judge erred in granting a discount for the utilitarian benefit of their pleas of guilty. In a separate hearing, this Court also heard prisoners' appeals of Kim and Fang.[8] They had appealed against their sentences inter alia on the ground that the sentencing judge failed to allow the full discount for the objective utilitarian benefit of the plea of guilty. The parties in the two hearings were provided with a transcript of the argument in the other hearing and were afforded an opportunity to make further submissions to the Court in relation to this common issue.
9 We shall return to the facts and specific grounds raised in respect of each appeal after dealing with the common issue.
10 Sentencing any federal offender must begin with a consideration of the applicable legislation - in this case pt 1B of the Crimes Act and in particular s 16A.[9] Section 16A was inserted by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). It came into operation on 17 July 1990 with the introduction of pt 1B. Part 1B, whilst not a code, lays down a comprehensive sentencing regime for federal offenders. In particular, div 2 of pt 1B is concerned with general sentencing principles.
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(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:
(a) the nature and circumstances of the offence;
.....
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
.....
(k) the need to ensure that the person is adequately punished for the offence;
...
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or other order under consideration would have on any of the person's family or dependants.
12 Section 16A on its proper construction accommodates the application of the common law principles of sentencing.[10] Section 16A(2) obliges a court sentencing a federal offender to take into account such matters referred to in that sub-section 'as are relevant and known to the court'. The Court must do that with a view to imposing on the offender a sentence or the making of an order that is 'of a severity appropriate in all the circumstances of the offence'. As was recognised in Hili v The Queen,[11] various judicially developed general sentencing principles are accommodated because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2) such as 'the need to ensure that the person is adequately punished for the offence'.[12]
13 All of the matters specified in s 16A(2) to which the court must have regard, with the exception of (p), have been conventionally regarded as matters which sentencing courts took into account at common law prior to the amending legislation. The list of matters specified is not exhaustive and is 'in addition to any other matters'. For example, there is no mention of general deterrence. The New South Wales Court of Appeal in Director of Public Prosecutions (Cth) v El Karhani concluded that the court's duty to ensure that the sentence or order 'is of a severity appropriate in all the circumstances of the offence' imports a duty to ensure that all general principles of sentencing law are imported into the function of a court imposing a sentence on a federal offender.[13] What will be 'appropriate' will depend upon consideration of fundamental notions which include general deterrence.[14]
14 State sentencing provisions as to the relevance of a plea of guilty do not apply to Commonwealth offences. By operation of s 68 of the Judiciary Act 1903 (Cth), pt 1B of the Crimes Act 'otherwise provides', so State laws are not picked up to that extent.[15]
15 It was not in issue on the appeals that s 16A(2)(g) requires the court to consider what discount should be allowed for the fact of the plea of guilty.[16] Since its introduction the provision has always been understood as directed to that end.[17]
16 It is axiomatic that the proper construction of s 16A(2)(g) must be anchored in its text and by further reference to its context and purpose.[18] The provision states that the court 'must' take into account the fact of the plea. The provision gives quite particular emphasis to the plea of guilty - 'that fact.' The mandatory obligation to take account of the fact of the plea is a cogent indicator that the provision is concerned primarily with the objective significance of the plea rather than any subjective intention or motive of the offender. At the same time, the provision contains no words of limitation as to how 'the fact' of the plea is relevant and does not specify the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence. The reasons of the Victorian Full Court in R v Morton,[19] and the New South Wales Court of Criminal Appeal in R v Sharma,[20] to which we shall make further reference, considered that the absence of words of limitation or purpose in the equivalent State provisions leads to the conclusion that a plea of guilty may be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as contrition which is relevant for sentencing purposes.[21] Such reasoning is apposite to s 16A(2)(g). The focus upon the fact of the plea of guilty reveals the legislative intent that its utilitarian value is a distinct interest of the system of justice as a whole whereas many of the other factors enumerated in s 16A(2) are more closely linked to the particular circumstances of the offender. The administration of justice is facilitated by the fact of the plea, irrespective of the intent or motive accompanying it.
17 The conclusion that sub-s (2)(g) is not concerned with why a plea of guilty is offered is strengthened by the presence of s 16A(2)(f), which makes separate provision for contrition as a matter that is to be taken into account. The plea of guilty is often relied upon as demonstrating contrition under sub-s (2)(f) and for its utilitarian benefit in sub-s (2)(g).[22] In fact, all State and Commonwealth statutory provisions which make reference to remorse or contrition separate those considerations from the 'mere entry of a plea of guilty' which is treated as a distinct factor.[23]
18 The context of the provision, to which we shall now turn, shows that it was intended to reflect the law as then already understood in parts of Australia which required a discount for the pragmatic benefits of the plea. It is a moot point whether that law was strictly the common law or the law as modified by statute in the respective jurisdictions. On either view, it was the law on which the Commonwealth statutory provision was based.
The context and purpose of s 16A(2)(g) - extrinsic material
19 We turn then to the context in which this provision was introduced and its purpose. Prior to the introduction of pt 1B in 1989, the Australian Law Reform Commission (the 'Commission') published a report on Commonwealth sentencing (the 'Report').[24] The Report was referred to in the second reading speech for the Crimes Legislation Amendment Bill (No 2) 1989 (Cth).[25]
20 One of the recommendations of the Report was a discount for a plea of guilty. The Report set out that:
A 'discount' on the sentence for a plea of guilty is proposed. Since the plea has no bearing on the circumstances of the offence or the offender's characteristics, the proposal may be seen as a significant departure from the just deserts model. Nevertheless, practical considerations, in particular the need to reduce court delays, justify courts being able to take account of the fact that the offender pleaded guilty to the charge. Providing information to the authorities should be treated on the same basis.[26]
21 Further, the report noted that regardless of whether or not an offender showed remorse, the discount should still apply:
'Discount' on sentence for a plea of guilty. A plea of guilty, whether there is evidence of remorse or not, should be listed as a fact that can be taken into account in sentencing. No particular amount should be specified as the amount, or maximum amount, of the 'discount' ... (majority recommendation).[27]
22 In the Report, the Commission expressly stated that 'practical considerations' formed the basis for the application of a discount for a guilty plea.[28] The Report went on to provide that while a plea of guilty may indicate contrition or remorse, a discount should still be available to those who are simply recognising the 'inevitable': [29]
practical considerations, in particular the need to reduce court delays, justify courts being able to take account of the fact that the offender pleaded guilty to the charge. The Commission has already recommended that a court should be able to have regard to evidence of contrition or remorse in determining sentence. A guilty plea may indicate contrition or remorse, but it may simply be a recognition of the inevitable. Some pleas may result from tactical considerations, or from charge bargaining. Allowing a 'discount' would have the advantages of
23 The Report further recognised that the discount would also have an 'administrative' benefit in assisting to reduce court delays.[30]
Context - the existing state of the common law
24 The concept of legislative intention demands consideration of purpose and object, surrounding circumstances and other matters which throw light on the meaning of the language. Although the task of determining intention must be approached with circumspection, Commonwealth interpretation legislation mandates a purposive approach to interpretation.[31] That requires that particular attention be given to the existing state of the law and the discernible mischief that the statute is intended to remedy.[32] The purpose, object or mischief to which a statutory text is directed is itself emphasised to be an important part of the context in which a statutory text is enacted. Context includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, and other facts and circumstances, including the state of the law as known or in contemplation by the framers and legislators who prepared or secured its enactment so as to prompt or explain the enactment, and developments over time in the national context in which the instrument is to be applied.[33]
25 The Director submitted that it was the legislative intention at the time of the introduction of s 16A(2)(g) to reflect the common law approach to the discount for a plea of guilty. Furthermore, a number of State sentencing provisions had already been introduced reflecting a common position. We turn then to the wider context in which s 16A(2)(g) was introduced. It is necessary for that purpose to canvass the way in which the discount for utilitarian benefit has been treated in State courts. As will be seen, the extent to which the discount is attributable to the common law, rather than statute, is not easily discerned.
26 In New South Wales, Street CJ stated in R v Holder that all accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence when proffering a plea of guilty although he also suggested that the relevance of a plea of guilty is subsumed under the general category of contrition to prevent the appearance of the criminal law dealing more harshly with a person who pleads not guilty. [34] His Honour later revised that position in R v Ellis where he said with the concurrence of Hunt and Allen JJ: [35]
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
27 The New South Wales Court of Criminal Appeal in R v Bond[36] and R v Winchester[37] reiterated that the relevance of the plea of guilty is not subsumed under the category of contrition but is to be taken into account as a factor in its own right on the grounds of saving the time and cost involved in a trial. The decision in Winchester followed the unreported decision of R v Beavan[38] where it had been said that a plea of guilty in its own right and independent of contrition mitigates the sentence because of the time and cost saved. In Winchester Hunt CJ at CL said:[39]
A plea of guilty is always a matter which must be taken into account when imposing sentence. ... The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442, 452; Ellis (1986) 6 NSWLR 603, 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial ...
The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases in which there is a genuine issue to be determined, will be brought on for hearing without delay.
28 Hunt CJ at CL also said in Winchester that s 439 of the Crimes Act 1900 (NSW), to which reference is made below, did no more than state the existing law.[40] It appears, however, that authority unambiguously supporting the discount for utilitarian benefit in New South Wales does not exist before 1990. As explained later in these reasons, in Victoria the discount has been treated as having been the result of legislative change. It is convenient to refer first to judicial consideration of the utilitarian benefit apart from statute. It will be seen that the difference between subjective and objective factors relevant to a plea of guilty generally began to be recognised at common law before statutory measures confirmed the availability of the discount for utilitarian benefit.[41]
29 A relevant objective feature of the plea of guilty, not dependent upon that plea being the product of remorse either in whole or in part, was discussed in the judgment of the Full Court of the Supreme Court of Victoria in R v Gray:[42]
the plea may be evidence of remorse, that is, regret as to participation in the crime. ... There are other factors that operate in the public interest. The plea may operate, and may have been so intended, to save a prosecutrix the ordeal of giving evidence in a sexual case. The plea may serve, and may have been so intended, to save the State a lengthy and expensive trial. Yet in neither of such cases might the accused feel genuine remorse. There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But, having been detected, he has had to do the best he can for himself. Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves a measure of public utility in the belief that his own ultimate interest is best served by doing so. The judge may (not shall) take such circumstance into account in the accused's favour. If such action be tainted overmuch by self-interest it probably will not avail the accused. Professor Sir Rupert Cross in his book The English Sentencing System (1971), p 153 suggests that it is in the interests of the present judicial system that provided they are in fact guilty, accused persons should plead guilty. No doubt great cost to the community in time, convenience and money is thereby saved. However expedient this may be from the point of view of the executive, it is not a matter which requires the sentencing judge to reduce the sentence below that which he otherwise believes to be proper in the circumstances.
On the other hand, there may be pleas of guilty which are not designed to serve the public interest - or may do so only marginally or incidentally. That is to say, the accused's self-interest is completely predominant in the decision reached by him. One such case will be when the accused is quite unrepentant and confesses his guilt simply because the case against him is overwhelming and, in a practical sense, unanswerable. Another may be a case of 'plea bargaining' between the accused or his advisers and the Crown, as, for instance, where the Crown accepts an offer by the accused to plead guilty to a lesser offence. The entry of the 'guilty' plea is then merely a manifestation of an exchange of an advantage for a disadvantage by both the accused and the Crown. In such a case it will ordinarily be much more difficult to persuade the court that the plea has that degree of spontaneity or sincerity expected to be the product of true repentance. But, of course, a plea bargain and remorse are not mutually exclusive. A remorseful accused ought not be prevented from seeking the benefit of any arrangement he can advantageously make with the Crown nor penalised on that account if he does.
30 The utilitarian value of a guilty plea was more explicitly expounded, without the qualifications stated in Gray, by King CJ in R v Shannon, where his Honour said:[43]
The conditions under which justice is administered change and the emphasis to be placed upon the various purposes to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasise the need for practical encouragement for guilty persons to admit their guilt. ... If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence.
The majority further concluded in Shannon:[44]
A plea of guilty may be taken into account in mitigation of sentence where ... it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial ... notwithstanding that the motive ... for such co-operation may be a desire to earn leniency.
King CJ referred to the 'willingness' and 'cooperation' evinced by an accused who pleads guilty. But the basis for the discount explained lay in wholly objective considerations.[45]
31 In almost every jurisdiction, Shannon had a profound influence on the common law and the text of sentencing provisions concerned with pleas of guilty which were introduced.[46] In Queensland in R v Harman,[47] de Jersey J affirmed the position stated in R v Pickett[48] that a guilty plea, particularly an early guilty plea which resulted in the saving of public time, effort and money, could lead to a reduction in sentence. Similarly in Tasmania, in R v Dowie[49] Wright J stated that a plea of guilty entitles the sentencing court to reduce an otherwise appropriate sentence, not only because such a plea is a concrete illustration of genuine remorse but also because it enables savings in public expense in the disposition of the case and on occasions shields the complainant and other witnesses from the trauma of participation in a trial. In McDonald v White,[50] Johnson J referred to the numerous earlier Western Australian authorities which also made clear that a plea of guilty is mitigatory, even if made without remorse, as it is in the general interests of the administration of criminal justice. He stated that the principle was part of the law of Western Australia for many years before the Sentencing Act 1995 (WA) and that the principle now had statutory backing.[51] There are numerous other decisions to the same effect, their number swelling in the immediate period before the introduction of pt 1B of the Crimes Act.[52]
A number of important features of our system of criminal justice underlie this sentencing principle. No accused person is obliged to plead guilty. Every accused is entitled to put the Crown to its proof. No accused is to be sentenced to a more severe penalty because they stood trial: Cameron v The Queen (2002) 209 CLR 339, 351. The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty: Cameron at 361. Were it otherwise, the courts would be unable to provide justice within any tolerable time frame and injustice would be done to victims, witnesses, accused persons and the community generally. The public interest is always served where an offender pleads guilty, not the least because it provides for certainty of outcome and a resolution of the substantive issue: Cameron at 360-1. A plea of guilty not only resolves the crime and releases investigators to other duties; resources are preserved for cases in which the guilt of the offender is really in issue. The plea vindicates public confidence in the legal processes established to protect the community, relieves the victims and witnesses of having to give evidence and provides some closure and vindication for victims of the crime.
State legislation prior to the introduction of s 16A(2)(g) - taking account of the 'fact of the plea' - a discount for the utilitarian benefit of the plea of guilty
33 The utility of the plea, as discussed in the above authorities, was the impetus for a number of States and then the Commonwealth to legislate to provide for a discount for the plea of guilty. Legislation in most States was introduced which either adopted the already existing common law practice in that State or introduced the practice of allowing a discount for the utilitarian or pragmatic benefit of the plea of guilty.[55] The identical provision to s 16A(2)(g) in South Australia and the similar provisions in Victoria requiring the 'fact of the plea' to be taken into account were introduced before s 16A. Both State provisions had been construed, and continue to be construed, by intermediate appellate courts as requiring a discount for the pragmatic value of the plea. The construction given to these State provisions by intermediate appellate courts is pertinent in approaching the construction of s 16A(2)(g).
Section 10 - Criminal Law (Sentencing) Act 1988 (SA)
34 Significantly, when s 16A was introduced, it adopted, without any material difference, the terms of s 10 of the Criminal Law (Sentencing) Act 1988 (SA). Section 10 was in these terms:
Matters to which a sentencing court should have regard
(a) the circumstances of the offence;
(b) other offences (if any) that are to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) the degree to which the defendant has shown contrition for the offence -
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g) if the defendant has pleaded guilty to the charge of the offence - that fact;
(h) the degree to which the defendant has co-operated in the investigation of the offence;
(i) the need to protect the community from the defendant's criminal acts;
(j) the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k) the need to ensure that the defendant is adequately punished for the offence;
(l) the character, antecedents, age, means and physical or mental condition of the defendant;
(m) the rehabilitation of the defendant;
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
(o) any other relevant matter.
35 The impact of this provision was considered by the South Australian Supreme Court in R v Adami.[56] There, the Court was asked to consider whether the introduction of s 10(n) changed the common law with regard to considerations of the impact of sentencing on dependants of the offender. The Court was unanimous in its finding that the introduction of s 10, including sub-s (g),[57] was declaratory of the common law[58] and that the discretionary powers of the sentencing court were left to the general law as laid down in the cases enunciating numerous principles of sentencing.[59]
36 This has consistently been the approach taken to s 10(g) in South Australia.[60] In R v Place[61] Doyle CJ, Prior, Lander and Martin JJ noted that appellate courts had consistently provided a specific reduction in return for a plea of guilty based in part upon the utilitarian ground. They further said:[62]
It is noteworthy that in Shannon, King CJ expressed the view that a plea of guilty may be taken into account in mitigation where 'it results from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest.'
...
Section 10 requires the court to have regard to the fact that an accused has pleaded guilty. No guidance is given as to how that fact is to be taken into account. It has been accepted on more than one occasion that s 10 reflects the common law and this court is entitled to assume that, when the Sentencing Act was passed, the legislature was aware of the approach of the courts to the relevance of a plea of guilty as identified by King CJ in Shannon.
37 Jurists, academics and the New South Wales Law Reform Commission have assumed that s 16A(2)(g), which copied s 10(g) of the South Australian Act, was introduced for the same purpose, namely to require the plea to be taken into account independently of any subjective attributes such as remorse.[63] Unfortunately our attention was not drawn to the South Australian provisions, and in particular s 10(g), or to the fact that the provision has consistently been construed as requiring a discount for the utilitarian benefit of the plea.
Section 4 - Penalties and Sentences Act 1985 - now s 5(2)(e) of the Sentencing Act 1991
38 In 1985 the Victorian Parliament enacted the Penalties and Sentences Act 1985. Section 4 provided:
4(1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.
(2) If under sub-section (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.
(3) The failure of a court to comply with subsection (2) does not invalidate any sentence imposed by it.
39 In Morton the Full Court of the Supreme Court of Victoria construed s 4. In the joint reasons the following was stated:[64]
If sub-section (1) stood alone, it might be regarded merely as declaratory of the existing law, but the reference in the sub-section simply to the fact of the plea of guilty without qualification suggests that something more was intended. Parliament must be taken to know the law and the courts in this State have for a long time taken a plea of guilty into account when passing sentence in any case in which they have considered it appropriate to do so: see, for example R v Gray. Sub-section (2) confirms that something more than a mere declaration of the existing law is intended. That sub-section shows first of all that the taking into account of a plea of guilty, if it has an effect at all upon the sentence passed, is to operate to reduce not to increase the sentence. So much might again be regarded as no more than declaratory. But having regard to the principles stated in R v Gray, the absence of any words of limitation in sub-section (1) or in sub-section (2) and the absence of any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence lead inevitably to the conclusion that a plea of guilty may be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as remorse which is regarded as relevant for sentencing purposes. The existence of sub-section (2) with its mandatory requirement upon the court, if it 'under sub-section (1)' reduces the sentence it would otherwise have passed, to state that fact when passing sentence, shows the intention of Parliament to encourage the practice of a court's taking a plea of guilty into account in an accused's favour.
The judgment of the majority in R v Gray contains, at pp 230-3, a discussion of the occasions upon which and the extent to which it was, prior to the passing of s 4, appropriate for a court to allow a plea of guilty to operate in mitigation of sentence. It is unnecessary to rehearse what is there said, but in summary their Honours Mclnerney and Crockett JJ indicated that it was for a sentencing judge to evaluate a plea of guilty and having done so to give it such effect, if any, in reduction of sentence as he thought proper. Nothing in s 4 renders that process unnecessary or inappropriate. But their Honours went on to suggest, at pp 232-3, that pleas of guilty which are not designed to serve the public interest and in which the accused's self-interest is completely dominant and pleas of guilty to lesser offences than those originally charged as a result of 'plea bargaining' between the accused or his advisers and the Crown will not ordinarily weigh heavily in the accused's favour. This part of their Honours' judgment may be modified by the new section.
The result of this consideration of the section is that a court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self-interest and even though it is a plea to lesser offences than those originally charged or intended to be charged. Doubtless, however, a plea of guilty which is indicative of remorse or of some other mitigating quality will ordinarily carry more weight than a plea dictated solely by self-interest. Nevertheless, Parliament having indicated, by the requirement that a court state the fact that it has reduced the sentence that it would otherwise have passed on account of a plea of guilty, that encouragement is to be given to pleas of guilty, such a plea should ordinarily be taken into account in the accused's favour. But nothing in this judgment should be taken as indicating a requirement that a court should pass a sentence that in all the circumstances it considers to be inappropriate.
40 Subsequent Victorian cases have reiterated the opinion that the legislation, subsequently re-enacted as s 5(2)(e) of the Sentencing Act 1991, was intended to 'encourage pleas of guilty' by allowing a discount for the pragmatic effect of the plea.[65] As Charles JA succinctly put it in R v Donnelly: 'the State itself benefits from the guilty plea'.[66]
41 In Phillips the joint reasons of Redlich JA and Curtain AJA, with which Maxwell P and Harper JA agreed, drew upon the observation of McHugh and Kirby JJ in Cameron as to the wide practice of Australian courts to give substantial discounts to those who plead guilty even when the plea is not accompanied by any remorse or contrition.[67] They then said:[68]
At common law, it can therefore be said that there has been a very broad and long-standing acceptance that a sufficient and necessary rationale for the public interest in providing a discount for a plea of guilty is its utilitarian benefit and that there is no requirement that there be present any of the subjective criteria before the discount is allowed.
42 Nettle JA also recognised in Phillips the practice of allowing a discount for the utilitarian benefit of the plea. He observed that the law in Victoria has long been that a sentencing judge must take into account a plea of guilty in every case, regardless of whether it reflects remorse and contrition, though there are exceptional circumstances in which it is proper to give such a plea no weight at all.[69]
43 For more than 30 years since Morton, pleas of guilty, whether to State or Commonwealth offences, have consistently been treated in Victoria as worthy of a significant sentencing discount in the absence of subjective factors where the only factor to be given particular weight was the avoidance of the expense and inconvenience of a trial.[70]
44 The foregoing review of the text, context and purpose of s 16A(2)(g), together with the judicial authority as to existing State legislation in the same or similar terms, leads us to conclude that at the time of its enactment, s 16A(2)(g) required a sentencing court to take account of the utilitarian benefit of a plea of guilty. It is contended by the Director, however, that the common law as it subsequently developed leads to the opposite result. Further, and in any event, the Director contends that appellate authority concerning s 16A(2)(g) requires that we reach that opposite conclusion.
45 To the extent that common law sentencing principles may elaborate the statutory provision, it is therefore convenient to refer to the continuing state of the law up to the time of Cameron. It will be seen that intermediate appellate courts continued to require a reduction in sentence for the bare fact of pleading guilty in recognition that the plea saved time and expense and relieved delays and congestion in the courts even when there was no consideration of remorse.[71] First, however, something should be said about the premise underlying the Director's argument.
Did the common law alter the meaning of s 16A(2)(g)?
46 Senior counsel for the Director submitted that as s 16A is not exhaustive; it can pick up common law principles, and does so to inform the terms of s 16A(2)(g). It was submitted that a review of the common law, exemplified in particular by the High Court's decision in Cameron, shows that, whatever meaning it had when first enacted, s 16A(2)(g) was no longer to be construed as requiring, or permitting, a discount to be given for the utilitarian benefit of a plea of guilty.
47 It is uncontroversial that the common law may not only inform the meaning and operation of legislation but that changes to the common law that occur after a statute is enacted may broaden the scope of the statutory text. As Gleeson CJ stated in Brodie v Singleton Shire Council, legislation and the common law 'exist in a symbiotic relationship'.[72] It is another thing to suggest, as the Director does, that the common law has altered the meaning of the relevant provision in this case so as to restrict its purpose by precluding consideration of the utilitarian benefit of the plea.
48 In Cameron Kirby J recognised that all States and Territories by legislation, and the Commonwealth by s 16A(2)(g), had addressed in various ways the approach to be adopted, and procedures to be followed, where a person is to be sentenced who has pleaded guilty to a criminal charge. In that regard Kirby J stated, citing R v Thomson and Houlton,[73] that 'it is the first obligation of the sentencing judge to conform to such legislation'.[74] Kirby J then said, citing Wong,[75] that 'no rule of the common law, nor any judicial practice, may contradict valid legislative prescriptions.'.[76]
49 Spigelman CJ stated in Sharma that the joint reasons in Cameron did not call into question the legislative authority of the State to enact legislation that might be in part discriminatory by virtue of giving a person who pleads guilty a lesser sentence than one who does not, on that account alone.[77] Nor did the reasons in Cameron contain any suggestion that Federal Parliament could not enact a provision, the purpose of which was to oblige the sentencing court to take account of the utilitarian benefit of the plea even though it might appear to mean that a person who pleads not guilty is treated more harshly as a result.
50 The Director's submissions run counter to these authorities by suggesting that the common law has operated to give s 16A(2)(g) a more confined meaning than it previously had. But for the reasons that follow, we do not in any event accept that the common law has altered the meaning to be given to s 16A(2)(g).
Further legislative measures prior to Cameron
51 As more jurisdictions adopted statutory provisions addressing the relevance of a plea of guilty to sentencing, it became harder to discern what ongoing part, if any, was played by the common law. In order to address the Director's argument, and to identify the true implications of the decision in Cameron, it must be assumed that intervening case law can be seen as bearing on the common law.
52 At much the same time as pt 1B of the Crimes Act was contemplated, the Report viewed the Victorian Penalties and Sentences Act 1985 as providing evidence that a 'discount' for a bare plea of guilty was 'working well'.[78] In 1990 s 439 of the Crimes Act 1900 (NSW) was introduced. This section was re-enacted, in substantially the same form, in s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section, as it originally stood, provided:
22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
53 The construction of s 439 and its successor, s 22, was considered in 2000 by the New South Wales Court of Criminal Appeal in Thomson and Houlton.[79] The Court promulgated a guideline judgment with respect to the discount for a plea of guilty in relation to State offences. Spigelman CJ (with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed) reviewed the position under all State, Territory and Commonwealth jurisdictions and by reference to the provisions of s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community.
55 Spigelman CJ noted that the appropriateness of a discount for a plea of guilty was reflected in legislation of all Australian jurisdictions, apart from Tasmania.[81]
In R v Morton, the Full Court of the Supreme Court of Victoria had to consider what, if any, effect this legislation had on the pre-existing common law as set out in R v Gray. This analysis is of particular significance for the effect of the New South Wales legislation originally enacted as s 439 of the Crimes Act. The Full Court of the Victorian Supreme Court found that the section did amend the common law in respects relevant to the construction of s 439.
...
The Crimes (Sentencing Procedure) Act states that a court 'must', not 'may', take into account a plea. Furthermore, what is required to be taken into account is both 'the fact' of the plea and 'when' it was made. If a lesser penalty is not to be imposed then the court must give reasons.
The statutory reference to 'the fact' of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to 'when' a plea was made, a reference only to subjective elements.
... The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of 'the fact' of the plea. The use of the word 'must' and the reference to 'the fact' of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.
57 The general principles stated in Thomson and Houlton were enumerated and reaffirmed in R v Borkowski.[83]
58 None of the State provisions in question contain words of limitation as to how 'the fact' of the plea is relevant. They do not specify the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence. As already observed, intermediate appellate courts have considered that the absence of words of limitation or purpose leads inevitably to the 'conclusion that a plea of guilty may be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as remorse which is regarded as relevant for sentencing purposes'.[84]
Continued statements of the law as to utilitarian benefit
59 Since the enactment of the legislation considered above, courts have continued to explain the significance of a plea of guilty by reference to, among other things, the utilitarian benefit of such a plea. It is not essential to decide whether these statements reflect the common law. To the extent that they do so, however, they do not assist the Director's argument.
60 In Siganto v The Queen[85] a majority of the High Court[86] upheld an appeal against sentence because it was difficult to avoid the conclusion that the sentencing judge had treated the distress of the victim at having to give evidence in the criminal proceedings as a matter of aggravation as a consequence of the applicant having pleaded not guilty.[87] In doing so the majority affirmed the well-established bases for taking into account the mitigatory effect of the plea of guilty:[88]
A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
The joint reasons later continued:[89]
It is proper for a sentencing judge to observe, in a particular case, that circumstances which might otherwise attract leniency are absent. A trial judge's reference to the absence from the case of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation.
Towards the conclusion of the joint reasons they said:[90]
To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometimes be misunderstood as intending the latter. However, the distinction can be important.
61 In AB v The Queen,[91] Gummow and Callinan JJ recognised that the offender's acknowledgement of the offences he had committed and his knowing waiver of his rights was relevant not only to a question whether he was truly contrite or not, but to other matters of public interest, which were described as follows:[92]
Those matters are that child complainants would be spared the ordeal of a trial and cross-examination; the importance to children that the truth of their allegations has been vindicated; the State has been spared the trouble and expense of a long trial or trials and further extradition proceedings; and the desirability and public interest in the encouraging of the full revelation of all criminality by any extraditable persons and the waiving by them of their extradition rights.
62 Kirby J also referred to the general significance of the pleas of guilty and to the fact that this saved exposing the appellant's victims to the burdens of giving evidence at a trial and saved public expense and delays in the criminal list in the hearing of cases which must proceed to trial, citing Bond and Winchester.[93]
63 Thomson and Houlton is the most often cited decision on the relevance of the plea of guilty to sentence. We have referred to how the Court construed s 22 but the analysis of the law by Spigelman CJ is also instructive. He said with the concurrence of the other members of the Court that it had 'long been the practice' to mitigate a sentence for plea of guilty on three bases, contrition, witness vulnerability and its 'utilitarian value to the efficiency of the criminal justice system'.[94] The Chief Justice observed that this long standing practice had been validated by the High Court in Siganto.[95] His Honour quoted the passage from Winchester set out earlier in support of these propositions. It being clear that s 22 of the Crimes (Sentencing Procedure) Act 1999 required a court to give effect to those bases for mitigating the sentence, the reasoning thereafter focussed upon whether the Court should provide a guideline and whether the discount for contrition and the utilitarian benefit should be separately quantified by a sentencing judge. Spigelman CJ came down emphatically in favour of separate quantification of the pragmatic considerations which provide the primary basis for rewarding an early plea of guilty, stating:[96]
The benefits to the criminal justice system as a whole, which flow from the plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender ... Rather, they are collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgement of some character by way of an incentive, so that the benefits will in fact be derived by the system.
64 Spigelman CJ recognised that aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. He recognised that the public interest served by encouraging pleas of guilty for the utilitarian value was a distinct interest.
65 In Victoria, Callaway JA in R v Duncan, without attempting to be exhaustive, expounded principles relating to the plea of guilty, which relevantly included:[97]
66 The Queensland Court of Criminal Appeal in R v Bulger[98] also affirmed that administrative expediency resulting from a guilty plea is a sufficient basis for moderation in sentencing. The Court followed a previous decision of R v Davis[99] in which it was recognised that the benefits of the administration of criminal justice deriving from a timely plea warranted a reduction in sentence even in a case which was unarguable. Then in R v McQuire [No 2][100] McMurdo P observed that the criminal justice system recognises that a plea of guilty is a mitigating factor even when not accompanied by remorse, quoting a passage from R v Corrigan[101] to the same effect.
67 McHugh J, though in the minority in Cameron, made the following observations as to the state of the general law:[102]
Australian courts have enthusiastically embraced the proposition that a person who pleads guilty should receive a lesser sentence that one who pleads not guilty and is convicted. In so far as a plea of guilty indicates remorse and contrition on the part of the defendant, the courts have long recognised it as a mitigating factor of importance. But in recent years, under the pressure of delayed hearings and ever increasing court lists, Australian courts have indicated that they will regard a plea of guilty as a mitigating factor even when no remorse or contrition is present. They have taken the pragmatic view that giving sentence 'discounts' to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces court delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.
68 The observations of Kirby J in Cameron concerning the public interest served by facilitating pleas of guilty, though in dissent on other issues, are redolent of the theme of the judgment of King CJ in Shannon to which we have referred. He expounded the state of the law in these terms:[103]
(5) In some of the older judicial authorities, the chief or the only basis advanced for a discount for a plea of guilty was that it evidenced contrition, repentance and remorse on the part of the prisoner. The basis for affording a discount in a sentence on this footing was the oft stated belief that such a response indicated the intention of the prisoner to reform and not to re-offend. To that extent, remorse could vindicate one of the basic purposes of the system of criminal justice. Cases do exist where, upon apprehension, a prisoner expresses genuine and believable regret. However, judges have lately expressed doubt as to the extent to which pleas of guilty really proceed from such motives. ... The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, 'remorse' is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.
The consideration of the public interest
The main features of the public interest, relevant to the discount for a plea of guilty, are 'purely utilitarian'. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.
Given that under our criminal justice system it is the right of the accused to put the State to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim's family and friends the ordeal of having to give evidence.
All of the foregoing are reasons why it is normally in the public interest to encourage a plea of guilty to a criminal charge whilst recognising, in its 'full strength', the rule that the accused is entitled to plead not guilty, to put the prosecution to the proof and cannot be punished more severely for having exercised these rights. The considerations that I have mentioned are not separate categories, or sub-rules, of the applicable principle. They are merely illustrations of aspects of the public interest to which the law of sentencing pays regard following a plea of guilty.
Appellate decisions allowing a discount for the utilitarian benefit of the plea for federal offences prior to Cameron
69 Moreover, no different approach is apparent when one turns to appellate decisions after the enactment of s 16A which apply that very provision. Following the introduction of pt 1B of the Crimes Act and prior to Cameron there are many intermediate appellate decisions which support the construction of s 16A(2)(g) by which the discount to be allowed for the fact of the plea is its utilitarian benefit. We were not referred to these decisions nor do they appear to have been cited to the court in Tyler.
70 In R v Bugeja[104] Hodgson JA (with whom Greg James and Adams JJ agreed) addressed the ground of appeal that asserted that the sentencing judge had failed to provide a sufficient discount for the utilitarian benefit of the plea of guilty in relation to the charged Commonwealth offence. Hodgson JA said:[105]
The second ground of the application was that the sentencing Judge erred in his reasons concerning what is called the utilitarian discount for an early plea of guilty, and had made an insufficient discount, particularly in relation to the Commonwealth offence. ... In my opinion, although the case of Thomson and Houlton and the guidelines set out in that case are said not to apply to Commonwealth offences, it seems clear that this is essentially because of the non participation of Commonwealth authorities in that case, and the view being taken that it was, accordingly, not appropriate to purport to set out guidelines to be applicable to all Commonwealth cases. However, in my opinion the general principles stated in that case are applicable to Commonwealth offences, and should generally be applied to Commonwealth offences.
The principles which I have in mind as relevant to this case are the principles that a plea of guilty should generally be taken into account having regard to the advantages to the administration of justice and the saving of resources that are involved in such a plea, and that pleas of guilty, and particularly early pleas of guilty, should be encouraged by discounts for that reason alone. Of course, pleas of guilty may be relevant in other ways to the determination of appropriate sentences, for example as indicating remorse, and as being relevant to the need for individual deterrence. However, Thomson and Houlton makes it clear that, quite apart from those matters, the utilitarian aspect, as it is called, of the plea should be taken into account. Thomson and Houlton also indicates that it is generally appropriate to make it clear that such a utilitarian discount is being given, and to express the amount of that discount.
...
The other relevant principle that in my opinion emerges from Thomson and Houlton is that, in relation to that particular aspect of a plea of guilty, the predominant consideration as to the amount of the discount is the timing of the plea. Whereas such matters as the strength of the Crown case and the question of whether the plea indicates remorse are highly relevant to other aspects of the relevance of the plea of guilty, Thomson and Houlton indicates that they are not of great significance in relation to the utilitarian discount.
71 Bugeja was followed and applied in R v Hendricks[106] on an appeal against sentence for the offence of importation of a trafficable quantity of cocaine. Wood CJ at CL (with whom Heydon JA and Carruthers AJ agreed) applied the discount for the utilitarian benefit of the plea and (citing Bugeja) applied the reasoning in Thomson and Houlton to Commonwealth offences.[107] In R v Chanthaboury McClellan J, with whom Wood CJ at CL and Smart AJ agreed, referred to the approach which Thomson and Houlton stated should be adopted to a plea of guilty applicable to State offences and in particular the 'utilitarian benefits of a plea for the efficiency and effectiveness of the criminal justice system' quite separate from any element of remorse and contrition.[108] He said that as the Court was required under s 16A(2)(g) to have regard to the fact that the applicant pleaded guilty, it had 'considerable utilitarian benefit which should be recognised in the sentence imposed'.[109]
72 In Ma v The Queen[110] Roberts-Smith J, with whom Steytler J agreed, referred to a sentencing court's obligation to take into account 'the fact 'of a plea of guilty pursuant to s 16A(2)(g) of the Crimes Act. He then applied the principle, as stated in Siganto, and by Ipp J in Atholwood v The Queen.[111]
73 In Radebe v The Queen McKechnie J, with whom Malcolm CJ and Anderson J agreed, said:[112]
The introduction of amendments to the Justices Act 1902 (WA) and Criminal Code (WA) in 1992 has had a profound effect on the administration of criminal justice in Western Australia. This bundle of amendments is widely known as the 'fast-track system'. In brief, it allows defendants to acknowledge their guilt at a very early stage in proceedings and to be committed to superior courts for sentence expeditiously without the formalities of a preliminary hearing or a full prosecution brief. Part of the bundle of amendments, now replicated in the Sentencing Act 1995 (WA) s 8(2), requires the judge to take into account the plea of guilty and the time at which it was made. The Crimes Act 1914 (Cth) s 16(g) [sic] requires the court to take into account the fact of a plea of guilty. Courts in Western Australia generally apply a fast-track discount to Commonwealth offences where the offender pleads guilty at an early stage and utilise the provisions of the Justices Act allowing for expedited committals for sentence.
For some years, committals to the superior courts of Western Australia by way of the fast-track system have been approximately 40 per cent of total committals. The savings to the administration of justice are enormous. There are considerable savings for police who do not have to compile compendious briefs where no issue of guilt will arise. There are savings of court time and the allocation of resources.
There are reasons of high policy why it is appropriate for courts to give a discount of sentence or, in some cases, an alternative to a sentence of imprisonment for an early plea of guilty. Of course a late plea of guilty should not lead to an increase in sentence. However, an early plea of guilty should always be rewarded, not because of any virtue in the individual, but as an acknowledgment that the early plea of guilty has a beneficial effect in an overcrowded criminal justice system.
Whilst, as Mr Dembo stressed, this was a case in which the Crown case was extremely strong - the appellant was caught red-handed - such a situation is not to deny her the full benefit of opting for the fast-track system, as was clearly accepted in Little v The Queen (supra) at par [13]. The rationale for a substantial discount on a plea within that system is primarily founded on a recognition of co-operation on the part of the offender, by facilitating the administration of justice. The discount to be given, inter alia, takes into account the formal acknowledgement of guilt before any witness statements are prepared, or exhibits other than a record of interview or other statement to the police, are provided. This results in significant savings to the criminal justice system including the police service, prosecuting authority and court systems alike.
75 It is against this backdrop of the construction of s 16A(2)(g) and like State provisions by intermediate courts of appeal, and the long standing practice of the common law, that the Director's submissions as to the implications of Cameron are to be considered. Almost 14 years after Cameron, she now submits, for the first time in this State, that Cameron not only changed the common law but as a consequence requires that s 16A(2)(g) be construed so as to preclude a discount for the utilitarian benefit of a plea of guilty.
76 In Cameron the appellant had pleaded guilty to a charge of possessing a prohibited drug with intent to sell and supply. As the offence was committed on Commonwealth property, the laws of Western Australia were to be applied by virtue of the Commonwealth Places (Application of Laws) Act 1970 (Cth), although the sentencing court was exercising federal jurisdiction. The appellant appealed against the penalty imposed on the basis that pursuant to the Sentencing Act 1995 (WA) and the provisions relating to the 'fast track system' in that State, he was entitled to a greater reduction in the penalty than was given by the sentencing judge in respect of his plea of guilty. Section 6 of the Sentencing Act sets out a number of 'principles of sentencing' and directs that the seriousness of the offence must be determined by taking into account identified factors including 'any aggravating factors' and 'any mitigating factors'. Section 7(2)(a) specifically provides that an offence is not aggravated by the fact that an offender has pleaded not guilty. Section 8(2) provided:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
77 In the joint reasons of Gaudron, Gummow and Callinan JJ, their Honours referred to the above cited observations in Siganto[115] that a plea of guilty is ordinarily a matter taken into account in mitigation because it is usually evidence of some remorse and secondly, 'on the pragmatic ground that the community is spared the expense of a contested trial'. Their Honours observed that remorse is 'not necessarily the only subjective matter revealed by a plea of guilty' in that the plea 'may also indicate acceptance of responsibility and a willingness to facilitate the course of justice'.[116] However, in respect of the proposition that weight in mitigation is given purely on the pragmatic ground, their Honours said:[117]
Although a plea of guilty may be taken into account in mitigation, the convicted person may not be penalised for having insisted on his or her right to trial.
The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen subjectively as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken to account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia Gaudron and McHugh JJ identified as the general considerations which result in particular treatment being treated as discriminatory. One aspect of the legal notion of discrimination 'lies in the unequal treatment of equals'. The 'equals' here are those required to plead guilty or not guilty; they stand as equals before the criminal law and processes of Western Australia. But is the differential treatment of such persons and the unequal outcome with respect to sentence the product of a distinction which is appropriate and adapted to the attainment of a proper objective, here the facilitation of the course of justice by the willingness of the accused to plead in a particular fashion? The answer, as indicated above, is in the affirmative.
78 In dealing with the relationship between s 8(2) and s 7(2)(a) of the Sentencing Act their Honours said:[119]
Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of justice.
79 McHugh J in his dissenting reasons observed that the case had been fought on the question whether the sentencing judge had erred in giving only a 10 per cent discount for the plea of guilty. He further noted that, like other Australian courts, the West Australian courts give substantial discounts to those who plead guilty even when the plea is not accompanied by any remorse or contrition. Later in his judgment, McHugh J was to observe that courts exercising federal jurisdiction cannot act in a way that is 'relevantly discriminatory' and that
it is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that one group has been convicted on pleas of guilty and the other group has been convicted after pleas of not guilty.[120]
Where the facts and circumstances of crimes and the subjective factors of those who commit them are the same, arguably equal justice requires that there be an identity of, and not different, outcomes in the punishments that they receive. That the State and others may be advantaged by a plea of guilty is arguably not a relevant difference in cases where the plea of guilty throws no light on the contrition, remorse or future behaviour of the defendant.
80 McHugh J declined to decide the issue of discrimination because neither party sought to challenge the proposition that an offender in State jurisdiction was entitled to a reduction purely on the pragmatic ground of the practical advantages of an early plea.
81 Kirby J forcefully reaffirmed the pragmatism with which the plea of guilty in modern sentencing is approached. He highlighted the distinction between a reduction for a plea of guilty and a reduction for a 'spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police'.[122] We earlier set out his exposition of the foundation at law for the reduction for a plea of guilty. Kirby J then said:[123]
The provision of a discount for a plea of guilty must not be, or appear to be, a judicial discouragement to an accused person against exercising rights to silence conferred by law or the right to put the prosecution to the proof of criminal accusations. An accused who insists upon such rights must not be penalised. An accused must not have the sentence increased to mark the sentencing judge's conclusion that the prisoner has wasted the court's time or the public's resources by insisting on a trial. Yet, necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty. Judges have acknowledged 'a certain illogicality' in these distinctions. Nevertheless, such distinctions have been endorsed by this Court. Although they have been said to border on the 'metaphysical', they reflect a difference between permissible and impermissible judicial approaches. They discourage inappropriate judicial involvement in plea bargaining that could dissuade a prisoner from exercising his or her legal rights. They alert judges to the susceptibility of prisoners generally (and some categories, such as Aboriginal prisoners, in particular) to pressure to induce them, even if innocent, to plead guilty. And they restrict excessive discounts for a plea of guilty that could indeed undermine the accusatorial feature of our criminal justice system.
82 Since Cameron, in a significant departure from the previous legislative scheme, the Western Australian Parliament has repealed s 8(2) of the Sentencing Act, thereby bringing that statutory scheme more closely into alignment with other States. Further, the insertion of s 9AA(2) requires a discount 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.' Remorse and the other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron), are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty though remorse and other subjective considerations may be taken into account.[124] Since then a plea of guilty or an offer to do so has been treated as demonstrating a willingness to facilitate the course of justice and as having the pragmatic value of benefits to the State and witnesses even if it is not accompanied by an acceptance of responsibility or remorse or contrition.[125]
Appellate decisions since Cameron which have addressed the discount for the utilitarian benefit of the plea for Commonwealth offences
83 In order to evaluate the effect of Cameron on the interpretation of s 16A(2)(g), we shall commence by considering case law since Cameron concerning that provision. We shall then turn to authorities under State law which have given attention to the impact of the reasoning in Cameron upon corresponding State provisions.
84 There have, as already mentioned, been a large number of appellate decisions since Cameron in which the discount for a plea of guilty to a Commonwealth offence has been considered. Contrary to the Director's submission, authority is divided as to whether Cameron precludes an allowance for the utilitarian benefit of a plea of guilty. Far from Tyler establishing a clear position, numerous intermediate appellate court decisions since Cameron, both before and after Tyler, have continued to apply the utilitarian discount for a plea of guilty to Commonwealth offences. These decisions were not cited to the Court during the appeal.
85 In the year following Cameron, in R v Simon, Sheller JA (with whom Hidden J and Carruthers AJ agreed) considered the obligation raised by s 16A(2)(g), noting that the sentencing judge had taken into account 'the utilitarian value of that plea'.[126] Sheller JA referred to the joint reasons in Cameron that the plea was to be seen, subjectively, as an indication of the willingness of the offender to facilitate the course of justice. He then quoted a statement from the judgment of Spigelman CJ in Sharma that the sentencing judge was not restricted to the subjective intention of the person pleading guilty to the exclusion of considerations of the objective value of the plea.[127] Sheller JA continued:[128]
The first ground of appeal was that the sentencing Judge's discount for an early plea of guilty was inadequate. The guideline judgment of R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104 was referred to as a useful guide in relation to Commonwealth offences. ...
Neither side submitted that this approach was affected by the High Court's decision in Cameron as to which see Sharma, earlier referred to.
86 Sheller JA found that the sentencing judge had given an insufficient discount for the utilitarian benefit.
The plea of guilty by the applicant was entered quite late. It nonetheless had an advantage for the Crown and as a consequence an allowance should be made for the utilitarian value of the plea. A discount of 10 per cent of the sentence should be allowed for this consideration.
88 In R v El Hani[131] Howie J (with whom Simpson and Bell JJ agreed) discussed the circumstances in which the discount for assisting authorities (s 16A(2)(h)) may be separately addressed from the utilitarian value of the plea. He said that it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the 'purely utilitarian value' of the plea.[132]
89 In R v Roche[133] Murray ACJ, with whom on this point both Templeman and McKechnie JJ agreed, said that there was value in the offender's plea, if no more than rendering his conviction certain, and that this was a matter to which the sentencing judge had to have regard under s 16A(2)(g).
90 In Robertson v The Queen Rothman J (Basten JA and Latham J agreeing) citing Bugeja said that for the purpose of s 16A(2)(g) it is desirable, for the sake of transparency, but not essential, in sentencing for Commonwealth offences, to identify separately and to quantify the discount for the utilitarian value of the plea.[134]
91 A number of authorities since Cameron have adopted the language of 'willingness to facilitate the course of justice' in terms which make it plain that what is being referred to is the objective utilitarian benefit of the plea.[135] Steytler P and Wheeler, McLure and Buss JJA in their joint reasons in Moody v French[136] drew no distinction of substance between a discount based upon the objective 'utilitarian benefit' of the plea and a 'willingness to facilitate the course of justice', the latter being evidenced by the plea. They said:[137]
Consequently, even in cases in which a plea of guilty is inevitable because of the strength of the prosecution case, it will ordinarily attract a discount because it nonetheless evidences a willingness to facilitate the course of justice and, perhaps, indicates an acceptance of responsibility.
...
However, the authorities overwhelmingly support the proposition that, other than in an exceptional case of the kind to which we have referred, some discount should be allowed even in a case in which the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility. In Shannon, at 451, King CJ said:
If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of a penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts.
Cases in which the utilitarian value of the plea has been said to warrant a discount (since Cameron, upon the basis of recognition of willingness to facilitate the course of justice) include Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997); R v Corrigan [1993] QCA 417; [1994] 2 Qd R 415, 416; Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 [21]; R v Harris [1992] SASC 3624; (1992) 59 SASR 300, 302; R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 [90]-[93], [115]; Kearney v Rinaudo [2007] WASC 104; and McDonald v White [2007] WASCA 213 [28].
92 In Cahyadi v The Queen the sentencing judge had said when sentencing for State and Commonwealth offences that she took into account that the plea of guilty should be recognised as reflecting a willingness to facilitate the course of justice and accepted that 'it contains within it an element of contrition and in relation to the State offence should reflect itself in a discount of 20 per cent of the sentence otherwise to be imposed'.[138] It was contended that the judge had erred in not discounting the sentence for the Commonwealth offences by the maximum of 25 per cent by reason of the plea of guilty. Her Honour had indicated that she was applying a discount of 20 per cent for the State offence. Howie J, with whom Price J agreed, said that the words 'willingness to facilitate the course of justice' was 'the way the utilitarian value of a plea of guilty in Commonwealth matters was expressed by some members of the Court in Cameron'.[139]
93 In FS v The Queen[140] Rothman J, with whom Campbell JA and Howie J agreed, applied the guideline judgment of Thomson and Houlton as to the appropriate discount for the considerable utilitarian value of the early plea of guilty. Referring to Bugeja, his Honour applied that guideline to the Commonwealth offences.[141]
94 In Tiknius v The Queen Johnson J (with whom Tobias AJA and Hall J agreed) said that a discount that had been allowed for a plea of guilty which had indicated the offender's willingness to facilitate the course of justice 'reflected the utilitarian value' of the plea 'and the associated willingness to facilitate the course of justice'.[142] Cameron was cited for the proposition that the principles in Thomson and Houlton applied to Commonwealth offences. Support for the relevant proposition is also found in NP v The Queen[143] and Charkawi v The Queen.[144]
95 A different view was taken by the South Australian Court of Appeal in R v Hansen,[145] considering whether an offer to plead guilty could be mitigatory. The majority, Sulan and Vanstone JJ, found that there was no rule requiring credit to be given for an offer to plead guilty but that had the appellant been able to point to a plea of guilty, there was no doubt that, all things being equal, he would have been able to claim credit for that plea. White J, in dissent, considered s 10(g) of the Sentencing Act and the applicability of Cameron. After referring to a passage from the joint reasons his Honour said:[146]
The High Court discussed the rationale for the mitigatory effect of a plea of guilty in the context of the Sentencing Act 1995 (WA) in Cameron v The Queen.
...
In this State, s 10(1)(g) [sic] of the Sentencing Act requires a court to have regard to a plea of guilty. Such a plea is generally regarded as mitigatory because it may, subjectively, indicate the defendant's contrition and because, even in the absence of contrition, the plea has a utilitarian value in an objective way, that is, the benefit to the administration of justice and the public interest resulting from a plea instead of a trial: see R v Place. Although not expressing a final view, the Court in Place considered that it was these considerations, rather than the willingness of the defendant to facilitate the course of justice, which provided the appropriate rationale for the mitigatory effect of a plea of guilty.
96 Since pt 1B of the Crimes Act was introduced, Victorian courts have continued to implement and endorse the practice of taking into account the purely objective utilitarian value of the plea when sentencing for Commonwealth offences without demur by the Director.[147] Amongst the many decisions of this Court to this effect are the following examples. In Director of Public Prosecutions (Cth) v Bui Ross AJA (with whom Nettle and Hansen JJA agreed) upheld a Crown appeal and resentenced the respondent upon the basis that his plea of guilty had a utilitarian benefit to the justice system and was also indicative of the respondent's remorse and the appropriate acceptance of responsibility, citing s 16A(2)(f) and (g).[148] Subsequently in Director of Public Prosecutions (Cth) v Couper Tate JA (with whom Harper JA and Williams AJA agreed) reiterated with apparent approval the course taken in Bui, noting the utilitarian benefit afforded to the justice system by reason of a plea of guilty by reference to s 16A(2)(f) and (g).[149] Then in Director of Public Prosecutions (Cth) v Peng[150] Nettle and Redlich JJA, with whom Priest JA agreed, observed that that the rationale behind giving a heavy discount in sentence for an early plea is that it may be taken as suggestive of an offender's remorse, and that it has a significant utilitarian benefit in that it facilitates the course of justice. The latter is a policy consideration which must always be given due weight in the instinctive synthesis.[151] Only last year, senior counsel, who also appears for the Director in the present appeals, had acknowledged in Director of Public Prosecutions (Cth) v KMD that the sentencing judge 'was entitled to allow a substantial discount for the plea of guilty, having regard to its utilitarian benefit'.[152]
97 We are bound to observe that senior counsel for the Director could offer no explanation during the hearing as to why the Director had never previously contended in Victoria that Cameron dictates that the sentencing practice in Victoria that allows utilitarian discounts for a plea of guilty to Commonwealth offences is erroneous.
One matter which arises in this context is what to make of sentences in the course of which the sentencing judge or the appellate court provided a discount of 25% for an early plea of guilty, in apparent conformity with state practice. It appears to have been commonly accepted in this Court, as explained in Lee v R, that, '[w]hen sentencing for a Commonwealth offence, there is no requirement for the sentencing judge to specify a quantifiable discount for an offender's guilty plea' and that '[t]he principles [established] in R v Thomson, R v Houlton do not apply to sentencing for Commonwealth offences.' Rather, the Court continued, the plea is to be taken into account 'as recognition of an offender's willingness to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.' The authority for those propositions is said to be Cameron v The Queen.
Cameron is not authority for that principle. In Cameron the sentence was imposed for an offence against the Misuse of Drugs Act 1981 (WA), picked up and applied as federal law by the Commonwealth Places (Application of Laws) Act 1970 (Cth). By contrast, s 16A of the Crimes Act 1914 (Cth), identifying general sentencing principles, is said to apply to 'federal offences'. The term 'federal offence' is defined to mean 'an offence against the law of the Commonwealth.' No doubt the Western Australian Court in Cameron was exercising federal jurisdiction, but only Kirby J referred to the possibility that s 16A was applicable and, the point not being argued, dealt with the matter on the basis that the offence remained one against a law of the State. The joint reasons of Gaudron, Gummow and Callinan JJ, whilst recognising that the sentencing exercise took place in federal jurisdiction, made no reference to s 16A, but rather assumed that relevant provisions of the state Sentencing Act applied.
Accordingly, Cameron has nothing to say about the operation of Commonwealth law with respect to sentencing. Furthermore, it is at least doubtful that Cameron limits the basis upon which a plea of guilty may be taken into account in the way suggested in Lee. In construing the Western Australian legislation, the joint reasons stated that the relevant provisions 'must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.' It is not possible to read that language as involving a rejection of the second limb identified (saving time and expense). Indeed, it is not possible to read that passage as excluding other relevant bases upon which a plea may considered. What the joint reasons were assessing in that passage was the relevance of identifying the time at which the plea was entered and whether it was possible to enter a plea at an earlier time. Consistently with the proposition that the Court was dealing with state or territory law, the joint reasons in Cameron quoted with approval a passage from Siganto v The Queen to the effect that a plea is a matter to be taken into account in mitigation as evidence of (a) remorse, and (b) sparing the community the expense of a contested trial. The joint reasons continued, noting that remorse was not necessarily the only quality revealed by a plea, which may also indicate 'acceptance of responsibility and the willingness to facilitate the course of justice.' Properly understood, all these four overlapping considerations are available bases for reducing a sentence following a plea of guilty.
99 Hamill J agreed with these observations.[155]
100 Basten JA's observations in Gow were discussed by Murrell CJ in R v Harrington,[156] which again concerned Commonwealth offences. In Harrington, the Crown had submitted that the sentencing judge had failed to apply the principles stated in Cameron by allowing a discount for the utilitarian benefit of the plea.[157] Ultimately, her Honour did not consider it necessary to decide the question whether the principles in Cameron were consistent with a discount applied for a utilitarian benefit where a sentencing court is considering the question of a plea discount under s 16A(2)(g) of the Crimes Act.[158] Refshauge ACJ and Gilmour J, however, found that the application of a utilitarian discount by the sentencing judge was contrary to the principle said to be found in Cameron.[159] Their Honours said:[160]
We are of the opinion that the majority decision in Gow on this point is clearly wrong. It is sufficient to have regard to the judgment of Spigelman CJ, Mason P, Barr, Bell and McLellan JJ agreeing, in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at [38] where his Honour pointed out, correctly in our respectful opinion, that the joint judgment in Cameron was concerned with general sentencing principles, albeit in the context of a Western Australian statute, and that those sentencing principles would be applicable in New South Wales unless they had been modified by statute. This too, is the position pertaining in the Australian Capital Territory.
Moreover, as the plurality stated in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at 353 [15], except to the extent stated in ss 16A and 16B of the Crimes Act 1914 (Cth), general common law, and not peculiarly local or state statutory principles of sentencing, are applicable, to the sentencing of federal offenders. The conclusion of the plurality in Hili at 528; [25] affirmed the conclusion in Johnson that s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing. Finally, in Tyler v The Queen at [111] the Court of Criminal Appeal in New South Wales unanimously concluded that Cameron applies in New South Wales to judges sentencing under Commonwealth law. So too is the position in the Australian Capital Territory.
101 We shall return to a consideration of the reasoning in Harrington below.
Cameron generally did not affect the construction of State provisions or the allowance of a discount for the pragmatic benefit of the plea of guilty to State offences
102 The joint reasons in Cameron have generally not affected the construction of State provisions dealing with a discount for a plea of guilty. It is useful to refer to the principal decisions in so far as they shed light on the possible application of Cameron to the meaning of s 16A(2)(g).
The issue before the High Court in Cameron was whether the Court of Criminal Appeal erred in its approach to the timing of the appellant's plea of guilty. The majority concluded that the Court had erred. Neither party took a point based on discrimination and the question of discrimination was not relevant to the issue to be determined by the High Court. Three judges in the joint judgment expressed the view that the rationale for taking a plea of guilty into account independently of any question of remorse and acceptance of responsibility must be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. McHugh J did not refer to that suggested rationale. Kirby J identified a number of features of public interest which he described as 'purely utilitarian'. His Honour did not adopt the rationale identified in the joint judgment. The approach of Kirby J supports that of King CJ in Shannon.
The issue of the rationale was not the subject of submissions. We tend to favour the views expressed by Kirby J and King CJ that, in the absence of subjective criteria such as contrition, a sufficient rationale is found in the public interest based upon 'purely utilitarian' considerations. The considerations to which Kirby J and King CJ referred are compelling. However, it is not necessary to decide this issue.
104 Later in the same year that Cameron was handed down, the Crown in New South Wales raised the question in Sharma[163] as to whether the Court's guidance in Thomson and Houlton remained appropriate in view of the decision of the High Court in Cameron. Spigelman CJ, with the concurrence of Mason P, Barr, Bell and McClellan JJ, proceeded upon the basis that if Cameron's reasoning was applicable in New South Wales, the foundation for Thomson would be swept away and it would constitute error for the utilitarian component to the plea of guilty, in the objective sense, to be taken into account without focusing attention exclusively on the subjective aspect.[164] The Chief Justice accepted that Cameron was concerned with general sentencing principles though in the context of a Western Australian statute. He stated that those principles would be applicable in New South Wales unless they had been modified by statute. On the other hand he recognised that if they were so modified, then the reasoning of Kirby J in Cameron set out above[165] would be pertinent for practice in New South Wales. He noted that in R v Place the five judge bench, without needing to finally decide the question, suggested that Cameron did not apply under the legislation in South Australia. We have set out earlier the basis residing in the text and context of the New South Wales provision for the Chief Justice's conclusion that there had been a statutory modification of those principles in New South Wales so that courts in New South Wales were permitted to take into account the objective utilitarian value of the plea.[166]
105 As for the common law, Spigelman CJ said the position in Victoria had been altered by legislative intervention in 1985. He found that even before legislative intervention in New South Wales, the Courts had accepted at common law that utilitarian considerations could be taken into account as such and not merely as a reflection of a subjective element. He recited the passage from Winchester[167] to the effect that the plea of guilty may also be taken into account as a factor in its own right independently of such contrition and that s 439 did no more than state the law that already existed.
106 Significantly, Spigelman CJ found that the common law principle as reformulated in Cameron had no scope for operation under the statutory regime. That was so for four reasons. First, there was nothing in the New South Wales provisions that expressly or implicitly referred to the common law requirement discussed in the joint reasons in Cameron that an offender not be penalised for pleading not guilty. Second, although that common law principle applied in New South Wales, in the absence of any indication, such as that in the Western Australian statute, that it is a pertinent restriction on the scope of the section, it was not a principle which had to be invoked in construing s 22. Third, the joint reasons in Cameron did not call into question the ability of a State Parliament to adopt a form of differentiation which may be, or at least may appear to be, discriminatory in the sense that word was used in the joint reasons. Fourth, the consequence must be accepted that by s 22 Parliament had empowered New South Wales courts to give significant weight to the objective utilitarian value of a plea of guilty. He concluded as follows:[168]
Although the legislation may have been regarded at the time as re-enacting the common law, as then understood in this State, the force of the relevant principle from that time was based on the statute rather than on the common law. Accordingly, when, in Cameron, the High Court came to restate the common law in a manner not consistent with what New South Wales judges had assumed that law to be, the statute continued to have full force and effect in accordance with its terms. That is what the statute requires. In my opinion the reasoning in the joint judgment in Cameron does not apply in this State. Thomson should still be followed.
Turning to the question of discount for the plea of guilty, while I accept the submission of the Crown prosecutor that the strength of the Crown case may be indirectly relevant, if it could result in a shortening of a contested hearing, that seems unlikely here. However, I do not agree with the submission for the applicant that there is an entitlement to a discount of 25% if a plea is made at the earliest opportunity. In R v Dib [2003] NSWCCA 117, I said this:
However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, distinguishing Cameron v The Queen (2002) 76 ALJR 382.
If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.
108 This Court in R v RND[171] also concluded that Cameron did not affect the construction to be given to 5(2)(e) of the Sentencing Act 1991. Eames JA, with whom Ormiston and Vincent JJA agreed, considered that the rejection in Cameron of utilitarian considerations in sentencing applied only to the terms of the Western Australian legislation, and was not of general application. The discount for the utilitarian benefit of the plea of guilty continued to be applied in Victoria following Cameron. Eames JA said:[172]
In Cameron the High Court was concerned with a legislative regime for sentencing which was quite different from that applicable in this State. In particular, in this State s 5(2)(e) of the Sentencing Act 1991 obliged the sentencing judge to have regard to whether or not the applicant had pleaded guilty. Thus, even where an accused person pleaded guilty solely out of self interest, in order to obtain a lesser sentence, and without any concern as to whether in so doing he was facilitating the course of justice, the sentencing judge was obliged to treat his plea of guilty as a mitigating factor, although the weight to be given to it may be limited. The same conclusion had been reached with respect to the terms of s 4(1) of the Penalties and Sentences Act 1985. The utilitarian considerations which the High Court held not to apply in the legislative regime with which Cameron was concerned, continue to have application under the legislation in this State.
109 Eames JA also noted that Full Benches of five judges of the Courts of Criminal Appeal in both South Australia and New South Wales in R v Place and Sharma had also reached the conclusion that the rejection of utilitarian considerations in sentencing in Cameron applied only to the terms of the Western Australian legislation.
But in my opinion, for reasons which have been stated in this Court on a number of occasions, the basis for accepting a plea of guilty and its significance as described in Cameron's case must take into account the nature of the legislation applicable in that jurisdiction. Without examining further those authorities it is sufficient to say that the willingness to facilitate the course of justice is in this state but a limited aspect to the plea of guilty's effect in the ordinary case. There is a mandatory requirement in this jurisdiction that a plea of guilty should be taken into account in every case, whether or not one can discern a willingness to facilitate the course of justice or indeed to produce any other relevant benefit ordinarily described as resulting from a plea, such as relieving witnesses from the burden of undergoing cross-examination and the like. Perhaps the ground relied on misunderstood the significance of Cameron's case in this jurisdiction, but in my opinion the description of the use to which the plea might be put was in fact too narrow. In broad terms it may be said that in every case a person pleading is entitled to some discount from a sentence which he or she would otherwise be subjected to: if there are other factors, as often there are, they may also be taken into account in determining the significance of the plea.
As the extracts from Cameron indicate, quite apart from contrition and remorse, a plea of guilty is evidence of a willingness to assist the administration of justice.
In the present proceeding, the plea of guilty was made at the time of the filing of the fresh information. That information contained less serious charges than that which had been earlier advanced. The defendant's plea has assisted the administration of justice. As a consequence of the plea, there has been no need for a trial to be conducted.
112 In Queensland s 13(1) of the Penalties and Sentences Act 1992 (Qld) provided that the court must take the fact that an offender has pleaded guilty into account and in consequence 'may reduce the sentence that it would have imposed had the offender not pleaded guilty'. In R v Bates Williams JA explained the approach to this provision in these terms:[177]
There is now a body of case law on s 13 and provisions to similar effect. It is sufficient to refer to Cameron v The Queen (2002) 76 ALJR 382; Atholwood (1999) 109 A Crim R 465, Siganto v The Queen [1998] HCA 74; [1998] 194 CLR 656; McQuire & Porter [2000] QCA 40; (2000) 110 A Crim R 348 especially at 358, 362 and 366; R v Taylor & Napatali; ex-parte Attorney-General (CA 157 & 158 of 1999, 20 August 1999); R v Harman [1989] 1 Qd R 414 and R v Bulger [1990] 2 Qd R 559. As McPherson JA said in Taylor ordinarily there would be some reduction in sentence consequent upon a plea of guilty. I regard those authorities as indicating that a provision such as s 13(1) would in the absence of some specific consideration (which should be identified) require some reduction in sentence even where there was no remorse reflected by the plea nor any other relevant consideration (such as avoiding the necessity of a young child giving evidence in a sex case). It is now clear from Cameron that the focus is on the offender's willingness to facilitate the course of justice. As that case, and McQuire, in particular demonstrate that is an issue quite separate and distinct from demonstrated remorse.
Atkinson J said:[178]
The relevant factor in this case was the willingness of the applicants to facilitate the course of justice. The utilitarian value of a plea, even in these circumstances, cannot be underestimated. ... The public interest is clearly served by an accused person, who accepts his or her guilt of an offence, pleading guilty to that offence.
113 Subject to considering the significance of there being intermediate appellate authority to the opposite effect, we would conclude that s 16A(2)(g) requires consideration to be given to the utilitarian benefit flowing from a plea of guilty to a Commonwealth offence. That result is in our view a product of the text, context and purpose of the provision and is consistent with the flow of judicial authority regarding comparable statutory provisions, both before and after Cameron.
114 More particularly, the majority reasons in Cameron did not concern a Commonwealth offence or refer to the accepted construction of s 16A(2)(g). The majority's observations about the need to avoid discriminating against a person who has pleaded not guilty is traceable to s 7(2) of the Sentencing Act 1995 (WA). The following passage in the majority reasons indicates the significance of the statutory context:[179]
It was suggested for the respondent in this Court that the full reduction for a 'fast-track' plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s 8(2) of the Sentencing Act were to be read in isolation from s 7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time.
Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.
115 It by no means follows that the common law consideration that an offender is not to be penalised for pleading not guilty, when that requirement is not specifically reflected in the governing sentencing statute, precludes a discount for the purely utilitarian benefit of a plea of guilty. The question must depend on the relevant statute. We do not understand Cameron to say otherwise. We agree with the observation of Spigelman CJ in Sharma, that the common law principle need not be invoked to construe the relevant sentencing provision in the absence of any indication in the statute that it is a pertinent restriction on the scope of the provision.[180] Free of authority, we would adopt that approach and hold that Cameron does not indicate that s 16A(2)(g) is to be construed so as to require regard to be had to subjective, but not objective, considerations flowing from a plea of guilty.
116 The Director placed particular reliance upon the New South Wales Court of Criminal Appeal decision in Tyler as the primary authority for the proposition that Cameron precludes any discount for the objective utilitarian benefit of the plea in respect of Commonwealth offences. It was submitted that comity obliged this Court to follow that decision. It was said that appellate decisions in Victoria to the contrary had no precedential value as, until now, it had always been conceded by the Director in sentencing in this State that a discount was to be allowed for the utilitarian benefit of the plea.
117 Even if it were correct that decisions of this Court could be disregarded because the Director has not previously contested the issue in this State, this does not explain the precedential value of the decisions of other intermediate appellate courts since Cameron and Tyler, to which no reference was made, and in which the Director was a party, which have continued to allow the discount for the pragmatic benefit of the plea. These decisions are contrary to the Director's primary submission that Cameron has altered the meaning to be given to s 16A(2)(g). For these and the reasons that follow, we do not consider that the principle of comity necessitates the conclusion that we accept the correctness of the reasoning in Tyler that Cameron does not permit a discount for the utilitarian benefit of a plea of guilty to a Commonwealth offence or that the rationale for the discount being a willingness to facilitate the course of justice means that it should result in a different and lesser discount.
118 Tyler[181] was a prisoner's appeal, in relation to a sentence of nine years for conspiracy to import a commercial quantity of cocaine into Australia. At first instance, the trial judge had recognised that Tyler was entitled to a reduction in sentence by reason of his plea of guilty, but declined to quantify the reduction applied.[182] Simpson J, with whom Spigelman CJ and Harrison J agreed, noted that the Crown had acknowledged on the plea, citing Cameron, that
the plea was entered at an early stage of the proceedings and therefore represents significant willingness to facilitate the course of justice.[183]
119 Simpson J then noted the trial judge's observations that
the offender's plea of guilty was made in the face of a strong Crown case and it must be said that conviction was inevitable.[184]
120 Tyler appealed on the basis, among others, that the finding that there should be no discount in respect of the plea attributable solely to its utilitarian value was erroneous. Simpson J introduced her treatment of this issue in these terms:[185]
It is usual, in sentencing in NSW, to allow and specify with some precision the reduction in sentence given by reference to the 'utilitarian value' of a plea of guilty: R v Thomson; R v Houlton. That approach was frowned upon by the High Court in Cameron v The Queen. The majority there favoured an approach which permitted recognition of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.
121 We should observe that the joint reasons in Cameron do not make any reference to Thomson and Houlton or the approach laid down in that guideline judgment. The joint reasons say only that the rationale for the rule that a plea of guilty may be mitigatory should not be expressed to be on the basis that it saved the community the expense of a trial.[186] They do not say that the saving has no part to play in evaluating the level of discount that should be allowed. On the contrary, the joint reasons state that 'the guilty plea evidences a willingness to facilitate the course of justice, and not simply because the plea saves the time and expense of those involved in the administration of justice'.[187]
Cameron, however, has been held to have no application to sentencing in NSW: R v Sharma. That is because of the particular provisions concerning sentencing contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). That Act does not apply to NSW judges sentencing under Commonwealth law, as was the case here. Accordingly, Cameron is applicable.
123 It is not evident from those reasons why it was thought that Cameron was applicable. There was no reference in the reasons to the Crimes Act 1914 or s 16A(2)(g). The reasoning appears to have proceeded upon the assumption that the common law was restated in Cameron and that it applied to sentencing for federal offences.
Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty.
125 The Director's submission also assumes that Tyler is correct in concluding that Cameron changed the common law and more particularly that a consequence of that change is that the level of the discount to be allowed for a plea of guilty necessarily changed. Based upon these assumptions, senior counsel for the Director submitted that a change was required to the construction of s 16A(2)(g) so that the amount of the discount allowed corresponded to the change made to the discount at common law. That submission and those assumptions must be rejected. Tyler is not authority for the proposition now advanced by the Director that s 16A(2)(g) is ambulatory. For the reasons already given, we do not accept the view expressed in Tyler that the joint reasons in Cameron are to be understood as affecting the pragmatic discount to be allowed for a plea of guilty to a Commonwealth offence as required by s 16A(2)(g).
126 The Director also contends that the reasoning in Tyler supports the argument that the utilitarian value of the plea cannot inform the degree to which the offender's willingness to plead in a particular fashion has facilitated the course of justice. Accordingly the Director argues that the permissible discount to be allowed for that willingness is less than that which would previously have been allowed for the plea's utilitarian value. We do not accept that by altering the way in which the rationale for the way the discount is to be expressed, Cameron is to be understood as affecting the level of the discount to be allowed for a plea of guilty under the general law.
127 The reasoning in Tyler has been applied in a number of appellate decisions apart from Harrington.[190] However, each of the decisions assumed the correctness of the reasoning in Tyler and did not engage in any analysis of s 16A(2)(g).
128 The joint reasons in Harrington made no reference to s 16A(2)(g) and appear to have proceeded upon the basis that there was no governing statutory provision which affected the application of common law principles as stated in Cameron.[191] For the reasons we have already given we do not, with respect, accept the correctness of that approach. Section 16A(2)(g) is the relevant statutory provision bearing upon the nature and level of discount that should be allowed. Nor do we accept the related assumption that Cameron applies to Commonwealth offences. To the extent that the reasoning in Harrington relied on the judgment of Spigelman CJ in Sharma, it respectfully appears to us that such reliance was misplaced. In our opinion, his Honour attached considerable weight to the statutory context in which Cameron was decided, and treated it as a feature distinguishing Cameron from the position under the New South Wales legislation. As we have said,[192] in our view it is also a feature distinguishing Cameron from the present cases.
129 The question then becomes whether, despite respectfully disagreeing with the reasoning in Tyler and Harrington, we should now adopt and follow that reasoning. We put to one side, for the present, the complication introduced by the fact that the New South Wales Court of Criminal Appeal decision in Gow is contrary to Tyler and Harrington, and has itself been held in Harrington to be clearly wrong.
Does the principle of comity apply to the decisions in Tyler and Harrington?
130 The Director submits that this Court, on the basis of comity, ought to follow the decisions of Tyler and Harrington. The principles of comity are well established. In Australian Securities Commission v Marlborough Gold Mines Ltd, the High Court said that an intermediate appellate court should not depart from an interpretation placed on uniform national legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.[193] The Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[194] repeated that view but added that the principle also applies to the 'common law of Australia'.[195]
131 The construction of s 16A(2)(g) did not form the basis of the reasoning in Tyler or the decisions that applied it. The reasoning in those cases rests upon their understanding of the joint reasons in Cameron. We doubt that the principles of comity bind us to follow such reasoning, as Cameron contained no analysis of s 16A(2) and was not purporting to alter or develop the common law or attribute a meaning to the statutory provision.
132 In Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3],[196] two members of a specially constituted Court of Appeal concluded that the High Court in Farah had relaxed the test under the second limb of Barnes v Addy for 'dishonest and fraudulent design'.[197] Subsequently in Hasler v Singtel Optus Pty Ltd[198] the respondents relied upon the reasoning in Bell to that effect and suggested that, based on the principles of comity enunciated in Farah, Bell ought be followed. That submission was rejected by Leeming JA, with whom Gleeson JA agreed. Leeming JA said: [199]
This court is bound by what the High Court said in Farah as to second limb Barnes liability. It is bound directly. Ultimately, it is bound by reason of s 73 of the Constitution. This court is not bound indirectly by another court's interpretation of what the High Court said. To paraphrase the words of McHugh J in Marshall, the primary guide to understanding the law as stated by the High Court is the language of that court's reasons, and a judicial decision as to what those reasons mean is at best a guide to, but cannot control, the meaning of that language.
Naturally, considerations of comity require regard to be had to decisions of other Australian courts, especially intermediate appellate courts, in applying and developing the common law of Australia. But either Farah has changed the meaning of 'dishonest and fraudulent design' in second limb Barnes liability or it has not**.** The fact that a majority of the Western Australian Court of Appeal considered that the phrase has been diluted by Farah does not absolve this court from its obligation to apply the law which binds it as stated by the High Court**.**
In short, the decision of the Western Australian Court of Appeal as to the meaning to be attributed to the reasons of the High Court in Farah has a very different precedential status from a decision of the same court as to the meaning to be attributed to the words of a federal statute. This is another illustration of the adage that judgments are to be read differently from statutes.
Accordingly, although the reasoning and conclusion in Bell warrant the deference appropriate to a decision of another intermediate court of appeal as a matter of comity, they do not attract the heightened deference as might be suggested by [135] of Farah.
133 We are attracted to the view expressed by Leeming JA. If that view of the limitation on the principle of comity is adopted, the observations in Tyler, relating as they do to the meaning to be attributed to the joint reasons in Cameron, would not require that we give them heightened deference. That approach accommodates circumstances such as the present where there are a large number of appellate decisions that have differed from Tyler and Harrington in that they have not understood Cameron to preclude a discount for the utilitarian value of the plea in the case of Commonwealth offences. Why, as a matter of comity, Tyler and Harrington should be preferred to this body of authority was not addressed by counsel for the Director because no reference was made to these authorities.
134 Equally, if the question is what is the common law as stated by the High Court in Siganto and Cameron, intermediate appellate courts are obliged to apply the governing High Court authorities, without needing first to be convinced that another appellate court was plainly wrong in its understanding of those authorities.
135 We are, however, with respect, unable to accept as correct the view expressed in Tyler that Cameron effected a change to the discount that is to be allowed for a plea of guilty for a Commonwealth offence. Tyler did not make reference to or seek to construe s 16A(2)(g) but appears to have assumed that there was an alteration made to the common law by Cameron which applied to Commonwealth offences. The relevant reasoning in Cameron directed to the markedly different Western Australian statutory regime could not be transposed and applied so as to affect the meaning of s 16A(2)(g). We have made similar observations already in respect of the joint reasons in Harrington.[200]
136 Were it necessary as a matter of comity to approach the observations in Tyler and Harrington with heightened deference unless convinced that they are plainly wrong, we should state our respectful view that we are so convinced. We agree with the contrary reasoning of Basten JA in Gow. We consider the appellate decisions since Cameron, to which we have referred, that have continued to require a discount for the utilitarian benefit of the plea for Commonwealth offences are correct and should be followed.
Cameron does not require a different level of discount for a willingness to facilitate the course of justice
137 Finally, if, contrary to our opinion, the reference in s 16A(2)(g) to 'the fact' of the plea of guilty is now to be construed as including the 'willingness to facilitate the course of justice' but not any distinct utilitarian benefit, we do not accept the further assumption made in Tyler and those other decisions upon which the Director relies, that the decision in Cameron generally affected the level of discount to be allowed for the plea of guilty. They proceed upon the assumption that the change in the expression of the rationale for the mitigatory rule, to a willingness to facilitate the course of justice, is ordinarily productive of a different discount to that which would have been allowed for the utilitarian benefit of the plea.
138 The Director in her submissions on the Crown appeals assumed that, as the sentencing judge allowed a discount for the utilitarian benefit, the discount was larger than would have been the case had the discount been for a willingness to facilitate the course of justice. Conversely, on the prisoners' appeals of Kim and Fang,[201] all parties assumed that if the judge did allow a discount for the willingness to facilitate the course of justice, the discount allowed would necessarily have been less than it would have been for the utilitarian benefit of the plea. The Director submitted in support of the sentences that were imposed that the judge would not have been entitled to allow the greater discount. These submissions rest upon a misconception as to the effect of discounting the sentence on the basis of the rationale stated in Cameron.
139 A 'willingness' to co-operate in the administration of justice will almost always be inferred from the fact of the plea. Moreover, the willingness to facilitate the course of justice generally requires a discount equivalent to that allowed for the utilitarian benefit of the plea. At the outset of these reasons we mentioned possible circumstances in which a material difference to the discount might result depending upon how the discount is characterised.[202]
140 As we have said, the joint reasons in Cameron importantly state that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. As Basten JA said in Gow, 'it is not possible to read that language as involving a rejection of the second limb identified (saving time and expense).'[203]
141 In Cameron the joint reasons speak as to what the plea may 'indicate' or 'evidence.'[204] Intermediate appellate courts have often approached the fact that the offender has pleaded guilty as necessarily evidencing or manifesting that willingness to cooperate with the administration of justice.[205]
To my mind, it is distasteful and contrary to generally held notions of fairness and balance to contend that genuine contrition and remorse can and should be taken into account in mitigation, but at the same time to claim that the bare fact of a guilty plea is of neutral effect. A prisoner rarely speaks for himself and usually engages counsel to do so. Are we to give weight to the persuasive oratory of counsel expressing regret on behalf of his client, but to ignore the indisputable fact that by pleading guilty a prisoner has entirely relinquished all prospect of acquittal? In these days of legal aid and lengthy trials, acquittals are by no means uncommon, even in seemingly hopeless cases. For my part, I believe that actions speak louder than words. Furthermore, it is not without relevance to consider that an offender's regret is often born from self reproach following apprehension, rather than from genuine contrition for the crime itself. If, however, it is more comforting to justify mitigation on the basis of contrition and remorse I think such subjective attitudes of mind are more readily inferred from a plea of guilty than from protestations from the dock or the bar table. This is not to say that the effect of a guilty plea may not have different weight in individual cases.
143 Appellate courts have viewed the fact that the offender has pleaded guilty as a form of 'co-operation' with the administration of justice regardless of the motive for the plea.[208]
144 Moreover, the discount attracted on the basis of a willingness to facilitate the administration of justice will often be the same as that attributable to the utilitarian benefit. In the present appeal of Thomas, it was the sentencing judge's instinctive reaction to the prosecutor's unexpected submission that he should not have regard to the utilitarian benefit of the plea that it was 'semantics' to distinguish between 'willingness to facilitate the course of justice' and the fact that it saved the community the expense of a contested trial. It may be thought that instinct was well founded. It accorded with academic writings which ask rhetorically - is it possible for an offender to tender a plea of guilty and not be facilitating the course of justice?[209] Courts have often viewed the concept of a utilitarian benefit as the equivalent of, or a component of, a willingness to facilitate the course of justice.
145 In R v Curry[210] Studdert J, with whom Heydon JA agreed, referred to the joint reasons in Cameron and said that a willingness on the part of the offender to facilitate the course of justice would ordinarily warrant no less a discount than what was considered appropriate for the utilitarian value of a plea prior to Cameron.[211] In Cahyadi Howie J regarded the use of the words 'a willingness to facilitate the course of justice' as 'the way the utilitarian value of a plea of guilty in Commonwealth matters was expressed' in the joint reasons in Cameron. In Monfries v The Queen,[212] Murrell CJ doubted that the approach to discount in Cameron (i.e. allowing a discount for the willingness to facilitate the course of justice rather than for the utilitarian value of the plea) has had any practical impact on the percentage discount that is routinely allowed in cases where the Commonwealth judicial power is exercised, as compared to cases in which the Thomson discount is applied.[213]
146 Kourakis J in R v Ironside[214] said:
It appears to me that all guilty pleas indicate a willingness to facilitate the course of justice, some more than others. Moreover, the features against which such willingness must be measured do not appear to me to be any different than the features which fall to be considered on a purely utilitarian approach to the sentencing consequences of a guilty plea.[215]
147 As we have pointed out, Steytler P and Wheeler, McLure and Buss JJA said in their joint reasons in Moody v French[216] that a plea of guilty in the absence of remorse will ordinarily attract a discount because it evidences a willingness to facilitate the course of justice. In Bahar v The Queen,[217] McLure P, with whom Martin CJ and Mazza J agreed, referred to the inference to be drawn from the plea said:[218]
The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice.
148 To similar effect, in R v Draoui[219] Vanstone J said of the plea that it reflects an 'accompanying submission to the court's punishment, is an indivisible concept' and thus earned a 'special mention in s 10(1)(g) of the Sentencing Act'.
149 However, the fact that ordinarily there will be no difference in outcome, whether the rationale for the obligation under s 16A(2)(g) is expressed in objective or subjective terms, does not mean that the Director was right to contend that Tyler requires the utilitarian benefit to be disregarded. To the contrary, in those cases where there may be a difference in outcome, reliance on the willingness of the accused to facilitate the course of justice, without more, will fail to give full effect to the mitigating significance of the plea and will therefore fail to comply with s 16A(2)(g). If there be cases where the inference of a willingness to facilitate the course of justice could not be drawn from the plea, it will be relevant to take specific account of the objective utilitarian benefit which the plea confers. Similarly, it may be that reliance on the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, for the reasons earlier given, will not afford a basis for giving full effect to the objective benefit flowing from the fact of the plea. In either case, reference to the utilitarian benefit may well make a difference. For that reason, notwithstanding that in most cases there will be no such difference, and the subjective and objective aspects of the guilty plea will have overlapping significance, courts should continue to take account of the utilitarian benefit of a plea of guilty as the statute requires in all Commonwealth cases, just as they do in respect of State offences.
150 On 21 May 2015, the respondent was arraigned and pleaded guilty to attempting to possess a commercial quantity of a border controlled drug. Following a plea hearing on 17 September 2015, the respondent was sentenced on 1 October 2015 as follows:
Attempt to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth)
151 The Director now appeals against that sentence on two grounds:
152 On 3 February 2014, the respondent travelled from Malaysia to Australia. The sentencing judge was unable to make a finding as to why the respondent travelled to Australia. His Honour found that, at a point of time which could not be precisely determined, the respondent formed the intent to take possession of an imported border controlled drug, namely methamphetamine.[220] The respondent then arranged accommodation at the Redan Apartments in St Kilda, and also concurrently booked accommodation at the nearby Hotel Barkly. The respondent then liaised with Customs and cargo services, arranging to be present to collect the consignment upon its delivery to the Redan Apartments. He reported back regularly to contacts in Malaysia. The respondent arranged for a registered customs broker to facilitate the movement of the consignment through Customs.
153 Upon arrival of the parcel, it was intercepted by Customs officers and its contents replaced with an inert substance. On 20 February 2014, after significant communication between the respondent and his contacts in Malaysia as well as with the Australian customs broker, the respondent took delivery of the parcel. But for the substitution, the consignment would have contained a little over 3.6 kilograms of pure methamphetamine. The respondent took photographs of the consignment and sent them back to contacts in Malaysia. The consignment was left in the respondent's room at the Redan Apartments. The respondent then returned to his alternative accommodation at the Hotel Barkly. The arrangement was for the parcel to remain in his booked room at the Redan Apartments for several days pending collection by another person. The same day, a search warrant was executed at the Redan Apartments where the substituted consignment was found next to the bed. A search warrant was also executed at the Hotel Barkly and the respondent was arrested. The respondent was interviewed and made some admissions in relation to his movements in the lead up to the delivery, but not in relation to the nature of the consignment nor his awareness of its contents. The respondent was charged the following day.
154 On 15 July 2014, the respondent was committed for trial on two charges relating to the offending conduct, to which he had pleaded not guilty after a short committal hearing (where only the informant was cross-examined). On 15 May 2015, prior to a trial due to commence on 24 May 2015, the respondent indicated that he wished to plead guilty.
Ground 1 - Discount to be afforded for a plea of guilty
155 In this appeal, the Director submits that the sentencing judge erred in allowing the utilitarian benefit of the guilty plea to impact upon the discount in sentence afforded to the respondent. The Director submits that the error in his Honour's approach to the discount for the guilty plea substantially affected the ultimate sentence imposed, so as to warrant the Court's intervention.
156 As we have concluded above, a sentencing judge is obliged to take account of the utilitarian benefit of the plea. In order to fully address this ground, however, it is necessary to set out how the issue of the discount for a plea of guilty arose and was ultimately dealt with by the sentencing judge.
157 During the course of the plea hearing, his Honour expressed concern with the prosecutor's written submission that he could not take into account the utilitarian benefit of the plea of guilty. His Honour expressed the view that allowing for the utilitarian benefit of the plea or the willingness to facilitate the course of justice appeared to amount to the same thing.
Sentencing remarks regarding discount for a plea of guilty
158 In his sentencing remarks, his Honour noted that his curiosity had been pricked by the prosecutor's written submissions that he should not discount the sentence for the objective utilitarian value of the plea of guilty. He regarded the submission as novel.[221] His Honour referred to a recent addition to the Commonwealth Sentencing Guidelines (the 'Guidelines') published by the Director which provided the apparent basis for the prosecutor's position. Those Guidelines provide, as set out by his Honour:[222]
Recently there has been greater acceptance of the High Court's view that permitted recognition of a plea of guilty by a federal offender by reference to the willingness of the offender to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested [hearing].
159 His Honour said that the Guidelines supported the fact that the question of whether a plea 'facilitated the course of justice' was perhaps a submission based in semantics, rather than substance.[223] His Honour noted that the guidelines stated:
It appears though that there is a significant overlap as both a[d]vert to the kinds of matters relevant to assessing the willingness of the offender to facilitate the course of justice.[224]
161 His Honour declined to adopt the approach submitted by the prosecutor, and allowed the respondent a discount based on his plea of guilty because it had 'saved the community the expense of a trial and saved witnesses being called'. His Honour said:[227]
I intend to sentence in relation to the plea of guilty in this Commonwealth matter on the basis that the courts in Victoria have always sentenced. That is, the plea of guilty is to be taken as an acceptance of responsibility by the accused for his behaviour and also it has saved the community the expense of a trial and saved witnesses being called. If, as a matter of semantics, someone wants to label that as facilitating the course of justice, I am happy with that label.
162 His Honour was guarded as to whether the respondent had shown genuine remorse, but accepted that the respondent had accepted responsibility for his actions.[228]
163 The Director now submits that in stating that the respondent's plea of guilty had 'saved the community the expense of a trial and saved witnesses being called',[229] his Honour took into account the 'prohibited' objective utilitarian value of the guilty plea. The Director further submitted that by 'relabelling' the utilitarian value of the plea under the rubric of 'facilitation of justice' his Honour had 'misunderstood' the distinction between the prohibition on taking the objective utilitarian value into account and the subjective test of 'willingness to facilitate the course of justice'. Regardless of the way in which the discount was labelled, his Honour had discounted the sentence on the 'forbidden pragmatic and objective consideration' of saving the community the time and cost of a trial.
164 First, for the reasons we have given, we reject the contention that the sentencing judge was not entitled to discount the sentence for the utilitarian benefit of the plea of guilty. Section 16A(2)(g) required that the sentencing judge take that into account.
165 Although that conclusion is sufficient to dispose of this ground, we should also state that we see no error by the sentencing judge in the context of this case, in approaching the issue on the basis that the discount for the plea would not have altered whether it was allowed for the objective pragmatic benefit of the plea or for the subjective willingness of the respondent to facilitate the course of justice. The respondent by his plea, as will almost always be the case, manifested a willingness to abandon his right to a trial, evidenced an acknowledgement of his guilt and demonstrated that he was willing to subject himself to punishment with the consequence that the course of justice was thereby vindicated. The judge made it plain that he would not have allowed a further discount, referable solely to the utilitarian benefit but not the respondent's willingness to facilitate the course of justice.[230]
167 Under this ground the Director contends that the head sentence and nonparole period imposed are manifestly inadequate and in particular submits that the sentencing judge:
• failed to give sufficient weight to the nature and circumstances of the offending, including the maximum penalties prescribed for the offence;
• failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
• gave undue weight to the respondent's plea of guilty; and
• gave undue weight to the respondent's personal circumstances.
168 The Director submits that these factors, and sentencing patterns throughout Australia for comparable offending, make it apparent that the sentence imposed falls well outside the range of sentences reasonably available to the sentencing judge and erodes the standard of sentences that are properly available for such offences.
169 We have set out the particulars enumerated in the Director's notice of appeal, in support of the contention that the sentence was manifestly inadequate. However, manifest inadequacy and manifest excess are grounds that do not depend upon the attribution of specific error.[231] Particulars can do no more than point to those features which should have been prominent in the exercise of the sentencing discretion.[232] As this Court said in Director of Public Prosecutions v Terrick:
The proposition that too much - or too little - weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy - or, in a prisoner's appeal, manifest excess - is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible - or necessary - for the appeal court to reach a conclusion on that question.[233]
170 The sentencing judge made the following relevant findings:
171 On the pleas of both Thomas and Wu, a table of sentences in other cases was prepared, and relied on, by the prosecutor. The table in the case of Thomas had some 28 cases. As the prosecutor explained to his Honour, those cases were selected because they involved the same drugs as the subject case and similar quantities of the drug. The table sets out details of the sentence imposed in each case, the quantity of drug, and very brief facts relating to the nature of the offending and the offender.
172 Much of the argument on appeal focussed upon the content of the table and its usefulness to the sentencing judge. The respondent says that the table of cases covered an extremely wide range of sentences, and that the impugned sentence fell within that broad range. He submits that the table provided to the judge therefore does not support the contention that the impugned sentence was manifestly inadequate. Further, he submits that, in any event, the use of the table by the prosecution on the plea and the failure to provide the judge with any other assistance provides a discretionary reason why this Court should decline to interfere with the sentence imposed.
173 It is convenient to commence with some brief consideration of the important function which the High Court has said comparable cases play in the task of sentencing. The joint reasons of French CJ, Crennan and Kiefel JJ in Green v
173 The Queen[239] quoted with approval the passage from the joint reasons in Wong[240] that 'equal justice requires identity of outcome in cases that are relevantly identical' and 'requires different outcomes in cases that are different in some relevant respect'.[241] Gleeson CJ had emphasised in Wong that in order to ensure systematic fairness and reasonable consistency, '[l]ike cases should be treated in like manner'.[242] The emphasis upon reasonable consistency was approved by the joint judgment in Hili, noting that the search for that consistency requires that sentencing judges must have regard to what has been done in comparable cases.[243] They attached considerable significance to the sentencing patterns disclosed by the history of comparable or relevant cases, as they resulted from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.[244] The statement of Gleeson CJ in Wong was again repeated with approval in the joint reasons in Elias v The Queen.[245]
174 French CJ, Keane and Nettle JJ stated in R v Pham[246] that comparable cases served a twofold purpose: the first, that such decisions 'provide guidance as to the identification and application of relevant sentencing principles'; the second, to decide whether they yield 'discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence'.[247] Bell and Gageler JJ were to further observe in Pham that the 'reasonable consistency' to which the joint reasons in Hili refer is consistency with respect to sentencing outcomes.[248]
These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.
176 Every sentence is of course the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. For that reason it is sometimes emphasised that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[251] But that said, past sentences do provide guidance to sentencing judges, and to appellate courts. As the joint judgment stated in Hili, Barbaro v The Queen[252] and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed.[253]
177 Following Pham the Queensland Court of Appeal in R v Onyebuchi; Ex parte Director of Public Prosecutions (Cth) reaffirmed the importance of identifying comparable cases and sentencing patterns so as to permit the identification of like features and achieve consistency in the application of the relevant legal principles.[254]
178 Something then should be said about the production of schedules or tables of cases on a plea, particularly by the prosecution. The joint judgment in Barbaro stated that '[i]f a sentencing judge is properly informed about ... the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.[255] Conversely, if the judge is not sufficiently informed about such matters the judge will not have been assisted in carrying out the sentencing task in accordance with proper principle.[256] In Matthews v The Queen, Warren CJ, Nettle and Redlich JJA confirmed that nothing said in Barbaro changed any pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases.[257] Similarly in R v Ogden, the Queensland Court of Appeal said it was part of the prosecutor's duty to assist the sentencing judge by supplying comparable sentencing decisions in order that the sentencing judge take them into account for guidance or as a 'yardstick' against which to examine the proposed sentence.[258]
179 The identification of 'like' or comparable cases, and their importance to the instinctive synthesis, is clear enough, but if a table or schedule is to be employed to that end, it is essential that the content of the table or schedule offer considerably more than numerical information about those sentences in past cases. The point being made by the joint judgment in Hili is that numerical equivalence has no utility when it says nothing about why sentences were fixed as they were. Quoting De La Rosa, which in turn cited Wong, the joint judgment further said that a table recording sentences imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.[259]
180 In addition to providing sufficient information about the features of each case to enable a judge to determine the degree to which it may be viewed as comparable, the prosecution must make plain the purpose for which each particular case is relied upon. Is it a comparable case or is its relevance that it is so different that the sentence there imposed would not lie within a sound exercise of the discretion in the present case? We shall return to the importance of parties distinguishing between those cases set out in a table that are said to be comparable and those which are not.
counsel for the Crown initially seemed to suggest that it was for defence counsel or the judge to work out what criticism could be made of the schedule; something which could be done by reading the decisions. But I do not accept that this is so. The Commonwealth Crown ought be a model litigant. It is not satisfactory that a busy sentencing judge should be provided with a schedule which is inaccurate in part and unhelpful in part.[262]
182 Comparable cases, presented in a tabulated form or schedule, can be of great assistance to judges, but only if they contain that necessary information. Their function is to provide a sound basis from which the judge may determine whether there is a relevant sentencing pattern to be discerned from the history of sentences available. Where, as in the present case, the table does not on its face illuminate the relevance of the cases listed, the table will be of limited assistance. This is precisely what Maxwell P had in mind in Director of Public Prosecutions v Frewstal Pty Ltd when stating that information about comparable cases
must be confined to cases which are properly described as relevant comparators (whether because they are materially the same or because they are instructively different), and sufficient information must be provided to enable the judge to make meaningful comparisons.[263]
183 None of this is to suggest that the sentencing judge is confined to the material furnished by the parties in discharging the responsibility of striving for reasonable consistency when fixing a sentence. In order to achieve systematic fairness, a sentencing judge, with or without the assistance of the parties, must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made.
184 Returning then to the table of cases provided in the present case, the sentencing judge was told by the prosecutor that as a matter of expediency the search for cases had been limited to the same drug so as to confine the number of cases to be placed before him. All but one of the cases were first instance sentences. The prosecutor referred specifically to only two of the sentences in the table, being sentences at first instance that were said to be comparable.[264] Aside from reference to these two cases, the utility of the table was not elaborated upon during the plea. It was, or should have been, clear enough from the prosecutor's submission that the other cases were not relied upon as being comparable and at least by implication that the sentences in those cases were too low.
185 The Director's written case on appeal did not draw attention to any comparable cases for possession of a commercial quantity of an unlawfully imported border controlled drug. At the hearing of the appeal, senior counsel for the Director acknowledged that most of the cases that had been set out in the table produced on the plea were not comparable cases in that they were relevantly similar to the present case. It was submitted they showed that the impugned sentence was of an order to be found in cases for possession of a marketable quantity of the drug, which attracted lesser sentences than those for a commercial quantity. The marketable quantity for methamphetamine is 2 grams, and carries a lower maximum penalty of 25 years' imprisonment. The Director submitted that these cases were outside and below the appropriate range but that they were nonetheless 'just as informative' as any comparable cases.
186 Further it was acknowledged during the oral hearing that for a table of decisions to be of assistance, it must, in addition to necessary information about the cases, make clear how each case is relied upon. That said, the prosecutor did explain to the sentencing judge that most of the cases included in the table were concerned with similar quantities of the drug and it was apparent from the table that most of the cases concerned charges in relation to a marketable quantity, attracting the lower maximum penalty.
187 During the oral argument on appeal counsel for the Director also referred to three decisions mentioned in the Director's written case in Wu. The three decisions, namely R v Agboti,[265] Ng v The Queen[266] and Lam v The Queen,[267] all involved sentences which were significantly higher than the sentence in the present case, yet the quantity of drug was a far lesser number of times the commercial quantity. The Director also referred to a schedule of cases annexed to the decision in Harrington, all of which were sentences relating to a marketable quantity. It was submitted that the sentences in these cases demonstrated the manifest inadequacy of the impugned sentence. They were sentences similar to or higher than the impugned sentence and yet were for a substantially lesser quantity of drug attracting a lower maximum penalty.
188 The respondent made no reference to current sentencing practice in his written case.
189 Both parties were given leave to file supplementary submissions identifying the cases upon which they relied and explaining their relevance.
190 In the Director's supplementary submission, she repeated her oral submission that the cases listed on the table given to the judge were 'outside the appropriate range of sentences established by the appellate decisions and have sentences more akin to offences in relation to a marketable quantity of the drug.' The Director furnished appellate sentencing decisions from other States, one of which was referred to in the table provided to the sentencing judge, that indicated that the impugned sentence was well outside the appropriate range for possession of a commercial quantity. In those cases were included a number where the offender played a lesser role in the drug hierarchy and the quantity of the drug was substantially less than in the present case, yet sentences of a much higher order had been imposed.[268] Similarly, the Director relied on the further cases of Lau v The Queen,[269] OPQ v The Queen[270] and R v Pham[271] and Harrington,[272] all cases of a marketable quantity of drugs, to demonstrate that significantly higher sentences than the impugned sentence had been imposed for the lesser offence. Further decisions were cited in support of the submission that the impugned sentence was manifestly below the available range.[273] The Director submits that a consideration of that range of sentences, illustrated in the annexure to these reasons, reveals that the sentence imposed in this case is manifestly inadequate.
191 By way of his supplementary submission the respondent did not seek to add to the table of cases, but maintained that the sentencing judge had been left at large with 31 cases[274] ranging in sentence from 4 to 15 years. The sentence fixed was within the range shown by those cases. It was said that, on the plea, the prosecutor had failed to distinguish between the cases and had provided no guidance as to why cases which had resulted in significantly higher sentences were more to the point. Finally it was said that the additional cases now cited by the Director may show that the impugned sentence was lenient, but that they do not demonstrate any misapplication of principle.
192 In R v Nguyen, Johnson J (with whom Macfarlan JA and R A Hulme J agreed) distilled from the authorities the following propositions applicable to sentencing for drug importation offences:[275]
(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation;
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court;
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;
(e) the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence;
(k) where offenders are not young ... the immaturity of youth cannot be claimed as a factor bearing upon their transgressions;
(l) where an offender ... is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise;
(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs;
...
193 In the case of drug importation offences, general deterrence is to be given chief weight in sentencing. Stern punishment will be warranted in almost every case in order to advance that purpose. Factors personal to the offender are thus ordinarily given less weight than might otherwise be the case.[276]
194 The table of cases provided to the sentencing judge did not demonstrate the relevance of the decisions. An examination of them makes clear however that there is a discernible pattern or sentencing range for possessing a marketable quantity of the drug which is of the same or higher order than the impugned sentence. For possession of a commercial quantity, the sentences are in general very significantly higher, often in circumstances where the quantity of drug is far less than in the present case. The cases also demonstrate that significantly higher sentences have been imposed than the impugned sentence where the role of the offender was a mere courier.
195 It is well established that on a Crown appeal against sentence, intervention by an appellate court is only justified if it is demonstrated that the sentence imposed falls clearly outside the sentencing range reasonably available to the sentencing judge.[277]
196 The offending here involved the attempted possession of 3.606 kilograms of pure methamphetamine, or 4.8 times the commercial quantity. We accept the submission that an examination of the cases shows that for offending of this level of seriousness, the pattern of sentences is much higher than the impugned sentence. For example in Banker,[278] the offender was sentenced to a period of 12 years' imprisonment (following a trial) for importing 5.5 times the commercial quantity. In Agboti¸[279] the offender received a sentence of 9 years and 6 months for importing 3.1 times the commercial quantity of methamphetamine. In both cases the offender was sentenced on the basis that they were a mere courier.
197 Similarly, in the cases of Chau[280] and Liu,[281] also involving a commercial quantity of methamphetamine, sentences of six to seven years' imprisonment were imposed. Cases of this type, of which many were cited, demonstrate that significantly higher sentences have been imposed where lesser quantities of drugs were involved, or offending of a less significant nature occurred. The cases cited in the schedule to Harrington all involve only a marketable quantity of drug and a lower maximum penalty and most involved a less serious role yet in the vast majority of those cases sentences greater (and in some cases significantly greater) than the impugned sentence were imposed.[282]
198 As we have said, the range of sentences so disclosed is not determinative of the upper and lower limits of sentencing discretion. Allowing that a judge may, in some circumstances, conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness, we can here discern no reasons why a sentence which differs so markedly in degree from the pattern of sentences of relevant or comparable cases could be justified. As Redlich JA (with whom Tate and Whelan JJA relevantly agreed) said in Nam Son Nguyen:[283]
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.
199 The impugned sentence bears no appropriate relativity to the pattern of sentences revealed by those comparable or relevant cases, differing markedly in degree from those cases. Adopting the formulation from the reasons of French CJ, Keane and Nettle JJ in Pham, we are driven to conclude that the sentence is manifestly inadequate and that there must have been a misapplication of principle.[284] Taking into account: the maximum penalty for this offence of life imprisonment; the objective gravity of the conduct as reflected by the commercial quantity of the drug; the respondent's role as more than a mere courier; and the absence of any significant personal circumstances of the appellant calling for any unusual mitigation of the sentence, we are of the view that the sentence imposed does not satisfy the requirements of general deterrence, just punishment and denunciation.
200 It remains to consider whether there is any special consideration relating to Crown appeals, as discussed in Director of Public Prosecutions v Karazisis,[285] that should affect the outcome of the appeal.
201 In determining a Crown appeal against sentence, it is well established that this Court retains a residual discretion to decline to interfere with the sentence below, even in circumstances where it is found to be manifestly inadequate.[286] In CMB v Attorney-General (NSW), the High Court emphasised that the onus is on the Crown, when asserting manifest inadequacy, to 'negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised'.[287] A primary consideration relevant to the exercise of the residual discretion is the limiting purpose of Crown appeals, namely to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.[288]
202 The respondent submits that in circumstances where the sentencing judge was not taken to a number of cases now raised before this Court, and where the sentencing judge had given careful consideration to all material presented on the plea, this is an appropriate case for the Court to exercise its discretion not to intervene.
203 As we have said, the prosecutor referred the sentencing judge to two County Court decisions, which it can be said were comparable in terms of offending and quantity of drug and many other cases which, though not comparable, were highly relevant as showing the sentencing pattern for possession of a marketable quantity of the drug. We reject the contention, not strenuously pressed, that the prosecutor's conduct on the plea was such as to warrant the invocation of the residual discretion. No sufficient reason has been advanced why we should decline to intervene.
204 Accordingly we would allow the appeal and would resentence the respondent to imprisonment for 9 years with a non-parole period of 6 years 3 months.
205 On 15 February 2016, the respondent, Leung Hang Wu, pleaded guilty to importing a commercial quantity of a border controlled drug. Following the plea, he was sentenced on as follows:[289]
Import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code (Cth)
206 The Director appeals against that sentence on the following two grounds:
• 1. The sentencing judge erred in applying [Phillips][290] and permitting a utilitarian benefit to apply to the respondent's plea of guilty, when this is irrelevant in sentencing for Commonwealth offences.
• 2. The head sentence and non-parole period imposed are manifestly inadequate.
207 The respondent is a Hong Kong national who arrived in Melbourne on a tourist visa on 18 August 2014.
208 Shortly thereafter, he opened a mobile phone account with Vodafone and a trading account in his name with Global Forex Melbourne Pty Ltd, trading as Everforex. As part of the account opening process the respondent gave a residential address in Ashburton and provided his Hong Kong passport as proof of identity.
209 Between 15 September 2014 and 3 October 2014, the respondent used his Everforex account on three occasions to transfer approximately $6,000 to Hong Kong.
210 In early October 2014, the respondent used a social media platform, on which he was identified as 'HKHENRYSEALS,' to rent a room at a home in Doncaster. He also provided the owner with a phone number.
211 On 6 October 2014, Customs intercepted a package sent from Hong Kong and addressed to Raymond Wu at the Ashburton address given by the respondent in opening his Everforex account. Xray images of the package identified a crystalline substance, concealed in bathroom fittings, which proved to be methamphetamine.
212 On 10 October 2014, Customs intercepted a second package sent from Hong Kong and addressed to John Wu at the address where the respondent had rented a room in Doncaster. X-ray images of the package again identified a crystalline substance, this time concealed in aquarium filters, which also proved to be methamphetamine.
213 The combined weight of the methamphetamine in the two shipments was 3.965 kilograms, and the estimated street value was between approximately $2.9 and $3.9 million.
214 On 30 October 2014, the Australian Federal Police ('AFP') executed a search warrant at the Doncaster address. Tenants there advised the AFP officers that a man they knew only as 'Henry' had stayed there until 25 October, and the owner of the property further provided them with the contact details he had for Henry; namely, a photo from the respondent's social media account, his user name HKHENRYSEALS and his telephone number. The photograph and phone number were disseminated to Customs authorities.
215 The respondent left Australia between 16 and 28 November 2014, and upon his return to the country, on a working holiday visa, provided a Customs officer with the contact email address containing the user name 'hksealshenry' and a phone number.
216 On 3 March 2015, using the name Henry, the respondent again rented a room, on Spencer Street in Melbourne, via social media. The owner of the apartment used her phone to take a picture of his passport as identification.
217 On 18 June 2015, AFP officers visited the Spencer Street address and spoke with the owner. She advised them that a male known to her only as 'Henry' had rented a room there and showed them the photo of the respondent's passport that she had taken in March.
218 The following day AFP officers executed a search warrant at the Spencer Street property; while they were at the premises the respondent returned and was arrested.
219 On 15 February 2016, the respondent pleaded guilty to one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine.
220 The sentencing judge made the following findings about the nature and circumstances of this case:
221 On the plea the prosecution relied upon the relevant sentencing principles for drug importation matters concisely stated in Nguyen v The Queen.[294] In this Court, as on the plea, the Director disputed the respondent's submission that the offence was to be viewed as falling within the lowest category of seriousness for this offence.
Ground 1 - Error in allowing discount for utilitarian benefit of the plea of guilty
222 The sentencing judge found that the respondent's plea of guilty entitled him to 'some leniency'[295] on the basis that it demonstrated an acknowledgement of responsibility for the offending.[296] Her Honour also inferred from the plea that it reflected remorse or contrition[297] and a willingness to facilitate the course of justice.[298] In addition, relying on Phillips,[299] the sentencing judge gave the utilitarian benefit of the plea some weight.[300]
223 As we have said, the decision in Phillips was concerned with the discount for the utilitarian benefit of a plea of guilty to a State offence under the Sentencing Act 1991. No question arose in that case as to whether Cameron altered the common law which it was accepted in Victoria was stated in Siganto, or whether that discount was to be applied to federal offences.
224 During the plea, the prosecutor submitted that a plea discount for Commonwealth offences was open on three bases: remorse, acceptance of responsibility and willingness to facilitate the course of justice. He submitted that the respondent was not entitled to a discount for the utilitarian benefit. The prosecutor acknowledged that the relevance of the utilitarian benefit of the plea had been the subject of a ruling by Chief Judge Kidd in the matter of Director of Public Prosecutions (Cth) v Okoka,[301] that very morning, although the outcome of the ruling was unknown. By the time of sentence her Honour had read the ruling of the Chief Judge in Okoka. Her Honour, in her sentencing remarks said:
Your plea of guilty also reflects your willingness to facilitate the course of justice. Being a Commonwealth charge, the prosecution submitted to me that I should not take into account the objective benefit to the community of what is called the utilitarian value of the saving of the time and cost of a trial, or for that matter a disputed committal hearing. I was referred by the prosecutor to a decision being handed down the very day I was hearing your plea by Chief Judge Kidd of this court in the matter of Okoka. I have had the benefit of reading an unrevised copy of His Honour's reasons in the addendum to that decision in which he considered this issue. I respectfully follow what he had to say on that issue, although I have not been able to publish that. This court is bound to follow the Victorian Court of Appeal decision in Phillips v The Queen [2012] VSCA 140, which case was conducted some ten years after the High Court decision in Cameron v The Queen, the latter being the decision that the Commonwealth submits indicates that utilitarian value is not to be taken into account as mitigatory in Commonwealth matters.
In the case of Phillips, it was not suggested that the case of Cameron excluded consideration of the objective utilitarian value of a plea of guilty as relevant in mitigation. I have therefore given that aspect of your plea some weight in addition to other already mentioned mitigatory aspects of reflecting remorse, acceptance of responsibility, and willingness to facilitate the course of justice. I also take that to be the course followed by His Honour Judge Montgomery in the case of Thomas when the matter was raised last year in a Commonwealth case, although I am aware that case is on appeal.[302]
225 The Director submits that the sentencing judge erred in allowing a discount for the utilitarian benefit of the plea of guilty, as such a consideration is irrelevant in sentencing for Commonwealth offences. The respondent maintained that even if Cameron somehow qualified the reasoning in Siganto, that did not alter the construction to be given to s 16A(2)(g) which permitted a discount for the objective utilitarian benefit of the plea.
226 For the reasons we have already given, we reject the Director's submission that no discount is to be allowed for the utilitarian benefit of the plea. Her Honour did not err in allowing that discount in addition to the other mitigating aspects of the plea.
227 The Director contended that the head sentence and the non-parole period imposed are manifestly inadequate, in particular, but not only, because the learned sentencing judge:
228 The Director in substance submitted that the sentence imposed was so far outside the appropriate range for the offence of importing a commercial quantity of a border controlled drug and for offending of this nature that there must have been a misapplication of principle Further, she contends that a survey of the cases involving importing a marketable quantity serves to confirm that conclusion. Drawing upon the comparable cases to which we have referred in Thomas, the Director repeated the submission made in Thomas that consistency in federal sentencing is to be achieved through the work of intermediate appellate courts and that sentences imposed by these courts may be used as yardsticks that help to inform a sentencing court as to the appropriate sentencing range.[303]
229 The Director noted that consistency is not synonymous with numerical equivalence and is incapable of mathematical expression or expression in tabular form. The Director referred to De La Rosa, where Simpson J said:[304]
A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.
... [T]he ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned.
230 The Director contended that the sentencing judge erred in seeking guidance only from those decisions of intermediate appellate courts that involved factually comparable cases, as such cases may not exist. It was submitted that guidance may be found from cases in which there is offending of a similar nature, or offending which is more or less serious than that under consideration.
231 The respondent submitted that the sentencing judge had been referred to the principles set out in Nguyen. She had also been provided with references to R v Calis,[305] Agboti,[306] R v Thathiah,[307] Ng,[308] Lam[309] and Gow.[310] However, the sentencing judge had not been provided, as this Court was, with a table of comparable cases for the offence of importation of a marketable quantity of a controlled drug. The respondent contended that the case now being advanced by the Director on appeal was different from that advanced before the sentencing judge.
232 Second, the respondent said, in his supplementary submissions to this Court, that the Director had overemphasised the mass of a drug as a significant factor in sentencing; rather, it was but a 'relevant' factor in the instinctive synthesis.
233 Third, the respondent said that there were significant aspects of the cases relied upon by the Director which made them unhelpful as comparable offences. In both Agboti and Ng, the sentencing judge had referred to or had been referred to a 'starting point' in determining an appropriate sentence. Such an approach was contrary to principle. In Lam, no issue of manifest excess arose; the issue was whether there had been a denial of procedural fairness in that the sentencing judge had not accepted the factual substratum of the report given by the psychologist.
234 Fourth, the respondent submitted that the Director had relied upon sentences imposed for the importation of a marketable quantity of a border controlled drug, which are not comparable. In fixing a sentence, it was said that it is contrary to principle to have regard to the sentences imposed for a different offence 'with different elements and a different maximum penalty'.
235 Fifth, the respondent contended that the Director's supplementary submissions failed to give any sufficient account as to the various matters which the judge treated as mitigatory.
236 Finally, the respondent said that the Court should exercise its residual discretion not to intervene. First, he said that the case advanced on appeal was significantly different from that advanced on the plea. Second, he said that the present case was a test case as to whether the decision in Phillips was good law. The respondent had pleaded guilty on the basis that he would be entitled to a discount in accordance with that case.
237 The principles governing sentencing for drug importation offences have been referred to in the reasons in the case of Thomas and it is not necessary to repeat them here. A sentence that is longer or shorter than any sentence previously imposed for the same offence is not necessarily manifestly inadequate or excessive. As we have said in the appeal of Thomas, reference to comparators will not support such a conclusion unless it can be shown that, having regard to the relevant sentencing considerations and the degree to which the sentence differs from comparable cases, the conclusion that there has been some misapplication of principle in the sentencing task is warranted.[311] In those circumstances the sentence will be found to bear no appropriate relativity to the identified comparators.[312]
238 The maximum penalty, taken with other relevant factors, provides a yardstick against which a sentence is to be considered.[313] The maximum penalty prescribed for the present offence is life imprisonment, reflecting the seriousness that Parliament attaches to this conduct. This was a 'rolled-up' count encompassing two separate consignments each of which involved a commercial quantity and which, taken together, was more than five times the commercial quantity. The degree of criminality of the respondent was greater than for a single importation.[314]
239 The cases of Agboti,[315] Ng[316] and Lam,[317] referred to in Thomas, were cited in Wu by the Director. As noted above, these cases involved the importing of a commercial quantity of a border controlled substance where the commercial quantities were significantly less than in the present case, but significantly higher sentences were imposed.
240 In Agboti and Ng, the offence was a one-off incident. In the present case, there were two separate consignments. In those cases, the role of the offender (as a courier) was less than that in this case. In Ng, the offender received a 25 per cent discount for a plea of guilty at an early stage reflecting the offender's intention to facilitate the course of justice. Those cases, and the various cases cited therein, and the further decisions of Peng,[318] Webber v The Queen,[319] Hui v The Queen[320] and Gow,[321] cited by the Director on appeal, and a summary of which is annexed to these reasons, involve a range of sentences well above that imposed in this case.
241 For the reasons given in the Thomas appeal, we reject the respondent's contention that it is not permissible to take account of cases concerned with a lesser offence or cases that possess different features to the subject case in seeking to identify the available range. As senior counsel for the Director submitted, they may be just as instructive as like cases.
242 Possessing or importing a marketable quantity of a border controlled drug involves a maximum penalty of 25 years' imprisonment. As we said in the appeal of Thomas, sentencing patterns for that offence are relevant to the present contention that the sentence for importing a commercial quantity is manifestly inadequate. Sentences for a lesser offence or a case which has different features may, as the Director rightly contends, also serve to inform the range of sentences available .
243 Indeed, a consideration of the range of sentences applicable to a marketable quantity, as illustrated in those cases cited in Thomas, such as OPQ,[322] Lau[323] and Harrington,[324] reflect that the sentence imposed in this case is manifestly inadequate. The cases of R v Harris,[325] El-Ghourani v The Queen,[326] Youssef v The Queen,[327] and Director of Public Prosecutions (Cth) v Merrill (a pseudonym),[328] as set out in the annexure, are equally relevant to the consideration here.
244 There were mitigating factors. The respondent did not have a criminal record; on the contrary, he appears to have been of good character before the present offending. He will also find incarceration particularly burdensome. Further, recent riots in the prison resulted in his being locked down for extended periods of time. He has no relatives here: his family is in Hong Kong. The judge appears to have accepted the submission made on the plea that it was only after his arrival in Australia that the respondent agreed to facilitate the arrival of the shipments. He was paid the relatively moderate sum of $10,000 per shipment.
245 There is nothing about these matters personal to the respondent which warrants a sentence which falls so far below the range applicable for this category of seriousness of the offence. He has been convicted of importing over 5 times the commercial quantity of a border controlled drug. The need for general deterrence is very great. Would-be importers of drugs need to know that they will pay a very heavy price for their offending. That has been the policy of all courts to date.
246 The impugned sentence is in our opinion egregiously inadequate. We are driven to conclude that in one or more respects the sentencing judge must have misapplied relevant sentencing principles. The respondent's conduct was indispensable to the importation of the two consignments and, as the judge found, was more serious than that of a mere courier and at the 'higher end of the lower range of seriousness'.[329] His precise role and relationship with others within the enterprise was unknown to the sentencing judge. Having regard to the maximum penalty, other relevant sentencing principles, and, in particular, general deterrence and the pattern of sentencing for this level of gravity of the offence, the imposition of a much higher sentence was required.
247 We turn then to the respondent's contention that we should exercise the residual discretion to decline to interfere with the sentence below even though it is manifestly inadequate.[330] As was made clear in the recent High Court decision of CMB, the onus is on the Crown to 'negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised'.[331]
248 The respondent points to two matters which, it is submitted, are relevant. First, it is submitted that this case is a 'test' case about whether or not the decision in Phillips remains good law. The respondent submits that he pleaded guilty upon advice that was predicated on the fact that the guilty plea discount would be afforded to him as propounded in Phillips and in circumstances where the sentencing judge applied Phillips.
249 As her Honour gave the discount for the utilitarian benefit of the respondent's plea of guilty and, as we have concluded, she was entitled to do so, the respondent's expectation in that regard has not been disturbed on appeal. The Director's second ground of appeal is distinct from the first and called for discrete consideration of the adequacy of the sentence imposed, albeit that a particular of that ground concerned the weight that the judge attached to the plea of guilty.
250 The respondent secondly submits that the case advanced against him on appeal was significantly different than that advanced on the plea and that the judge did not receive the assistance to which she was entitled from the prosecutor.
251 The sentencing judge was provided with a schedule of cases for commercial quantities that was also relied upon during the hearing of the appeal. In her sentencing remarks, the judge observed that the schedule did not contain a great range of cases because the prosecution was only relying upon appellate court decisions, not all of them were specific to methamphetamine, and most related to the role of mere courier.[332] Her Honour distinguished the case of Lam in which an intermediary had received 11 years for 3 consignments.[333] Ultimately her Honour concluded that she could not rely on the cases brought to her attention by the prosecutor 'for a close comparison'.[334]
252 As we said in Thomas, a sentencing judge is not confined to the information provided by the prosecutor and nothing stated by her Honour suggests that she regarded herself as so circumscribed. The way in which we have approached our analysis of the pattern of relevant sentences has in large part been gleaned from the same material which was available to her Honour. While further clarification was sought from the Crown as to how such cases were to be relied upon, and by way of supplementary submissions some additional comparable cases were cited, we do not accept that the Director was advancing a different or inconsistent argument to that raised on her behalf at first instance that should lead us to decline to intervene.
253 We would allow the appeal on ground 2 and resentence the respondent to 10 years and 6 months' imprisonment with a non-parole period of 7 years and 6 months.
254 In OPQ v The Queen[335] this Court dismissed an appeal against a sentence of 6 years' imprisonment with a non-parole period of 3 years and 6 months for offending involving the attempted possession of 561 grams of border controlled drugs that had been imported into Australia with a street value of up to $846,712. The offender's role was characterised as 'a trusted intermediary'[336] of the drug syndicate and his plea was not entered at the first available opportunity (no percentage was specified as to the reduction given on that account). Factors taken into account included that prison would be more onerous due to HIV and a minor reduction to take into account the principles in R v Verdins.[337]
255 In Lau v The Queen[338] this court dismissed an appeal against a sentence of 9 years' imprisonment with a non-parole period of 6 years for importing 709.8 grams of pure methamphetamine where the appellant's role was one of a courier; he had no prior convictions and pleaded guilty at the earliest opportunity. The amount was in the upper range of marketable quantity.
256 In Harris v The Queen[339] the Queensland Court of Appeal dismissed an appeal against a sentence of 7 years' imprisonment with a non-parole period of 4 years for attempting to possess 1489.7 grams of cocaine. The Respondent's role was more limited than that of a courier as she was merely a 'post box'[340] to receive drugs and pass them on. The street value of the drugs was $2 million and the offending was for a financial motive. The Court found that the plea of guilty was not early and declared that but for the plea a head sentence of 8 years would have been imposed.
257 In El-Ghourani v The Queen[341] the New South Wales Court of Criminal Appeal upheld a head sentence of 9 years' imprisonment with a non-parole period of 6 years for the importation of 181.5 grams of pure heroin. The plea was not at the earliest opportunity. A 15 per cent reduction was given for that factor. The appellant's role was to arrange receipt of drugs in Australia and it was characterized as more than a 'mere cog'.[342]
258 In Youssef v The Queen[343] the New South Wales Court of Criminal Appeal upheld a head sentence of 7 years and 8 months' imprisonment with a non-parole period of 4 years and 8 months for importing drugs weighing 573.6 grams pure. The appellant had no priors and his role was a courier who left Australia to bring drugs back. The street value of the imported drugs was up to $1,147,000. There was a 30 per cent reduction for an early plea (at the Local Court) and assistance.[344]
259 In Merrill v The Queen[345] this Court upheld a Crown appeal against a first instance sentence of 42 months to be released on a RRO after serving 14 months for trafficking 688.8 grams pure methamphetamine. The Respondent was resentenced to 6 years' imprisonment with a non-parole period of 4 years despite having no priors and significant mitigating factors. The Respondent's role was characterised as intermediary. The plea was entered in the County Court but there is no indication of the extent of the reduction on that basis.
260 In Ng v The Queen[346] the offender pleaded guilty to importing 2445 grams of heroin (1.63 times the commercial quantity). The offender was characterised by the sentencing judge as an 'importer' and not a 'mastermind'.[347] The respondent was sentenced to 11 years and 3 months' imprisonment, with a non-parole period of 7 years 3 months. Leave to appeal against the sentence was granted, but the appeal was dismissed.
261 Two County Court cases were referred to specifically by the prosecutor on the plea in the case of Thomas - Chau[348] and Liu.[349] Both cases were said to involve individuals who had arrived in Australia, and subsequently arranged to be at an address or arranged to collect a parcel after their arrival. In Chau the offending related to two charges amounting to a total amount of 2.3 kilograms of methamphetamine, or 3.09 times the commercial quantity, where the offender's role was found to be greater than a mere courier. The offender received a sentence of 6 years and 6 months on the first charge, and 6 years on the second, with a total effective sentence of 7 years and 4 months, following a guilty plea at the earliest stage.
262 In Liu the offender had travelled from Hong Kong to Australia on a holiday, but had agreed to collect a package in return for around $6700. The package, which had been intercepted and substituted, contained 3.79 kilograms of methamphetamine, or 5.05 times the commercial quantity. The offender received 7 years' imprisonment with a non-parole period of 4 years and 6 months.
263 In Banker v The Queen[350] the Court dismissed an appeal by the offender against a sentence of 12 years' imprisonment with a non-parole period of 8 years for an offence of importing 4117.1 grams of methylamphetamine (5.5 times the commercial quantity). The offender was convicted by a jury. He was sentenced on the basis that he was a courier. He was 70 years old.
264 In R v Peng[351] the Crown appealed against the sentence imposed upon Peng for importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code. Following a plea in the County Court on 2 September 2013, Peng was sentenced as to 11 years' imprisonment with a nonparole period of 7 years and 6 months. In allowing the appeal and resentencing the respondent to 13 years' imprisonment with a non-parole period of 10 years, Nettle and Redlich JJA (with whom Priest JA agreed) said:[352]
As the sentence stands, it is in our view manifestly inadequate. Peng played a critical and extensive role in the importation of a very large commercial quantity of a border controlled drug. His precise role in the criminal enterprise is unknown, although the Director has at all materials [sic] times accepted that he fell within category 3 of De La Rosa. But, looking at the categories of offending as set out in the judgment of Maxwell P in Nguyen v R and having regard to the quantity of drugs involved in this case and the significance of Peng's role, he could well have been placed in category 2. It was not in issue that he stood to make a substantial profit from his role, though the amount was not disclosed.
265 In Webbe v The Queenr[353] the applicant was convicted, after a plea of guilty, of various offences including the offence of importing a commercial quantity of cocaine contrary to s 307.1 of the Criminal Code. The gross weight of the cocaine was 3280.7 grams with a calculated pure weight of 2219.3 grams. A commercial quantity of cocaine is 2 kilograms. For that offence, he was sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years. In that case, Fullerton J (with whom Hoeben CJ at CL and Adamson J agreed) doubted that the applicant's role should be described as at the 'lower end' of criminality for importations of a commercial quantity of a border-controlled drug. The applicant was able to converse with his principals, to arrange for delivery and collection of the drugs and to respond immediately to the strategy that the police were deploying.[354]
266 In Gow v The Queen[355] the respondent was sentenced for importing a commercial quantity of cocaine. The importation involved packages of cocaine weighing just over 4 kilograms, constituting 2.3 kilograms of pure cocaine. He was sentenced to 8 years' imprisonment with a non-parole period of 5 years. On a Crown appeal, the Court (Basten JA, with whom Hamill J agreed, Garling J dissenting) concluded that the sentence imposed was not manifestly inadequate (but was lenient and at the low end of the range).[356] The offending involved a one-off incident.
267 In Hui v The Queen[357] the applicant pleaded guilty to one charge of importing a marketable quantity of a border controlled drug and one charge of trafficking a commercial quantity of a border controlled drug. On the first charge, he was sentenced to 5 years' imprisonment and, on the second charge, 6 years, with 6 months to be served concurrently. The total effective sentence was 7 years and 6 months with a nonparole period of 6 years. An appeal on the ground that the sentence was manifestly excessive was partially allowed. This Court fixed a new non-parole period of 5 years and 6 months. However, the appeal that the head sentences were manifestly inadequate was dismissed.
268 In Agboti v The Queen[358] the applicant pleaded guilty to one count of importing a commercial quantity of methamphetamine. The gross weight of the substance was 2944.6 grams, the pure weight of methamphetamine being 2326.5 grams, with an average purity of 79 per cent. The sentence imposed by the Court of Appeal was 9 years and 6 months with a non-parole period fixed at 4 years and 6 months. The judgment does not nominate the reduction for the plea of guilty which was referred to as an early plea.[359] The Court referred to R v Jain,[360] in which case a courier imported 1.559 kg of heroin using a false passport. The offender, 28, was a former businessman with no prior convictions. He exhibited remorse and had good prospects of rehabilitation. He was sentenced to a term of 10 years' imprisonment, with the Court of Appeal reducing the nonparole period to 7 years. The Court also referred to R v Ong[361] (Buchanan and Redlich JJA and Kaye AJA), in which the offender pleaded not guilty to importing 1.88 kg of heroin. The heroin imported exceeded a commercial quantity by approximately 0.38 kilograms. He was a 48 year old Vietnamese migrant who had served 8 years in custody for a prior drug conviction. No finding was made as to his role in the importation scheme. A Crown appeal against a sentence of 15 years' imprisonment with an 11 year non-parole period was dismissed. The Court also referred to the decision of the Queensland Court of Appeal in Tran.[362] In Tran the offender on appeal was sentenced to 10 years' imprisonment with a non-parole period of 5 years for importing a marketable quantity of heroin (slightly under a commercial quantity). There was a plea of guilty entered at the first reasonable opportunity to an ex officio indictment (although the reduction was not specified). He made full admissions on the day he was arrested.
269 In Ng v The Queen[363] an application for leave to appeal because the sentence was manifestly excessive was granted, but the appeal dismissed. The applicant pleaded guilty to one count of importing a commercial quantity of heroin and was sentenced to a term of imprisonment of 11 years and 3 months' with a non-parole period of 7 years and 3 months. The threshold commercial quantity for heroin was 1.5 kilograms. The pure quantity of the heroin imported was 2.445 kilograms. There was a 25 per cent reduction on the basis of a willingness to facilitate the course of justice by the plea of guilty. R S Hulme J, in dissent, thought the sentence was too lenient. He said:[364]
A review of prior decisions carried out in R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 led the Chief Justice to the conclusion that 8 to 12 years was an appropriate range for sentences for couriers who imported between 1.5 and 3.5 kilograms of heroin. An earlier review of such cases that I had carried out in R v Spiteri [1999] NSWCCA 3 at [22]-[33] led me to the view that the appropriate range of sentences for couriers importing 1½-3 kilograms of heroin fell between 9¼ and 11½ years. While there were obvious differences between the circumstances of many of the couriers encompassed within those reviews, it can fairly be said that the range covered what may be described as the normal run of such offenders. The Applicant imported 2.445 kg and there is nothing [in] the circumstances of the Applicant or his offence to take him out of the normal range'.
270 In Lam v The Queen[365] the applicant pleaded guilty to one count of importing a commercial quantity of a prohibited drug, namely 2.8959 kilograms of heroin, contrary to s 307.1(1) of the Criminal Code. The threshold commercial quantity of heroin under the Criminal Code is 1.5 kilograms. The Court of Criminal Appeal upheld a sentence of 11 years' imprisonment with a non-parole period of 7 years. The case involved three consignments. The appeal did not allege manifest excess.
[1] See, eg, Phillips v The Queen (2012) 37 VR 594, 601-2 [24] (Nettle JA) ('Phillips').
[2] [2007] NSWCCA 247; (2007) 173 A Crim R 458 ('Tyler').
[3] (2002) 209 CLR 339 ('Cameron').
[4] Ibid 343 [13]-[14] (Gaudron, Gummow and Callinan JJ).
[5] Intermediate appellate authority in most jurisdictions has consistently treated the strength of the Crown case in this way.
[6] Implicit in that submission is the assumption that a 'willingness to facilitate the course of justice' is not necessarily to be inferred from the fact of the plea. We shall later discuss the validity of that assumption.
[7] The fact of the plea of guilty is now only relevant to sentencing with respect to a reduction of sentence for cooperation with law enforcement agencies under s 10A(3)(a) of the Criminal Law (Sentencing) Act 1988 (SA).
[9] Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357, 371 [26] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[10] Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, 353 [15] (Gummow, Callinan and Heydon JJ).
[12] Ibid 528 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Hili').
[15] Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, 189 [41] (Gummow and Heydon JJ); Bui v DPP (Cth) [2012] HCA 1; (2012) 244 CLR 638, 648-9 [11] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
[16] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611-12 [74]-[76] ('Wong'); Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357, 373-5 [37]-[38] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17] For example in Wong [2001] HCA 64; (2001) 207 CLR 584, 621 [101] n 185, Kirby J recorded his view that s 16A(2)(g) expressly requires an adjustment to the sentence to allow for the plea.
[18] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369, 373 [10] (French CJ, Kiefel, Nettle and Gordon JJ). See also discussion in Stephen Gageler, 'Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process' [2011] MonashULawRw 17; (2011) 37(2) Monash University Law Review 1; Michael Kirby, 'Statutory Interpretation: the Meaning of Meaning' [2011] MelbULawRw 3; (2011) 35 Melbourne University Law Review 113; Justice Kenneth Hayne, 'Statutes, Intentions and the Courts: What Place Does the Notion of Intention Have in Statutory Construction?' (2014) 13 Oxford University Commonwealth Law Journal 271.
[19] [1986] VicRp 82; [1986] VR 863, 866-8 (Young CJ, King and Beach JJ) ('Morton').
[20] [2002] NSWCCA 142; (2002) 54 NSWLR 300, 312 [53] (Spigelman CJ) ('Sharma').
[21] Similar or identical State provisions have been given the same construction: Morton [1986] VicRp 82; [1986] VR 863, 867 (Young CJ, King and Beach JJ); Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, 310-11 [46] (Spigelman CJ); R v Place [2002] SASC 101; (2002) 81 SASR 395, 423-4 [73]-[75] (Doyle CJ, Prior, Lander and Martin JJ); Phillips (2012) 37 VR 594, 609 [49] (Redlich JA and Curtain AJA); Rigby v Western Australia [2005] WASCA 134 [36] (Le Miere AJA).
[22] See, eg, R v Teng [2005] VSC 33 [54] (Kellam J).
[23] David Field, 'Plead Guilty Early and Convincingly to Avoid Disappointment' (2002) 14 Bond Law Review 251, 266.
[24] Australian Law Reform Commission, Sentencing, Report No 44 (1988).
[25] Commonwealth, Parliamentary Debates, House of Representatives, 5 October 1989, 1603 (Robert Brown, Minister for Land Transport and Shipping Support).
[32] CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[33] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 332 [12] (Gleeson CJ); Gageler, above n 18.
[34] [1983] 3 NSWLR 245, 258.
[36] (1990) 48 A Crim R 1 ('Bond').
[37] (1992) 58 A Crim R 345 ('Winchester').
[38] Unreported, New South Wales Court of Criminal Appeal, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991.
[39] (1992) 58 A Crim R 345, 350.
[41] See also R v Warfield (1994) 34 NSWLR 200 (Hunt CJ at CL; McInerney and James JJ agreeing); R v Paull (1990) 20 NSWLR 427, 429 (Hunt J); DPP v El Karhani (1990) 21 NSWLR 370, 382 (Kirby P, Campbell and Newman JJ); R v Laurentiu (1992) 63 A Crim R 402, 408 (Kirby P); R v Spiteri [1999] NSWCCA 3 [35] (Hulme J); R v Crowdey [1999] NSWCCA 24 [10] (James J; Grove and Dunford JJ agreeing); R v Doyle (1994) 71 A Crim R 360; Atholwood v The Queen (1999) 109 A Crim R 465, 467 [9] (Ipp J).
[42] [1977] VicRp 27; [1977] VR 225, 232 ('Gray').
[43] (1979) 21 SASR 442, 451 ('Shannon').
[45] See also R v Slater (1984) 36 SASR 524, 526 (King CJ). See further, outside South Australia: R v Dowie [1989] Tas R 167; R v Harman (1988) 35 A Crim R 447; Morton [1986] VicRp 82; [1986] VR 863; R v Giakas [1988] VicRp 88; [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ).
[46] R v Schumacher (1981) 3 A Crim R 441 (Federal Court); Winchester (1992) 58 A Crim R 345 (NSW); R v Paull (1990) 20 NSWLR 427 (NSW); R v Harman [1989] 1 Qd R 414 (Qld); R v Bulger [1990] 2 Qd R 559 (Qld); Zapata v The Queen (Unreported, Western Australia Court of Criminal Appeal, Brinsden, Kennedy and Rowland JJ, 22 December 1988) (WA); R v Dowie [1989] Tas R 167 (Tas); R v Smith (1988) 39 A Crim R 48 (ACT); Short v The Queen [1994] FCA 1084; (1994) 49 FCR 556 (ACT).
[52] See, eg, R v Heard (aka Summers) (1987) 11 NSWLR 46, 48-9 (Lee J); R v Giakas [1988] VicRp 88; [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ); R v de Zylva (1988) 33 A Crim R 44, 46 (Young CJ, Crockett and Marks JJ); DPP v Smith (1988) 33 A Crim R 95, 97 (Young CJ).
[55] Crimes Act 1900 (ACT) s 429A(1)(u); Crimes Act 1900 (NSW) s 439; Sentencing Act 1995 (NT) s 5(2)(j); Penalties and Sentences Act 1992 (Qld) s 13; Criminal Law (Sentencing) Act 1988 (SA) s 10(g); Penalties and Sentences Act 1985 s 4, Sentencing Act 1991 s 5(2)(e); Criminal Code Act Compilation Act 1913 (WA) s 19B(1).
[60] See, eg, R v Shannon (1979) 21 SASR 442; R v Wall [2000] SASC 177; R v McKenna [2006] SASC 49 [12]-[13] (Sulan J; Doyle CJ and Nyland J agreeing), citing R v Place [2002] SASC 101; (2002) 81 SASR 395, 416-24 (Doyle CJ, Prior, Lander and Martin JJ).
[62] Ibid 423-4 [73]-[76] (emphasis added).
[63] Kathy Mack and Sharyn Roach Anleu, 'Sentence Discount For A Guilty Plea: Time for a New Look' [1997] FlinJlLawRfm 1; (1997) 1 Flinders Journal of Law Reform 123, 125 n 13; New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996).
[64] [1986] VicRp 82; [1986] VR 863, 867-8 (emphasis added) (citations omitted).
[65] See R v Giakas [1988] VicRp 88; [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ).
[66] [1998] 1 VR 645, 649 (Charles JA). See also Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Thomson Reuters, 2nd ed, 1999) [3.814]-[3.815].
[70] See, eg, R v Tasker [2003] VSCA 190; (2003) 7 VR 128, 133 [24] (Eames JA; Winneke P and Charles JA agreeing); R v Barnes [2003] VSCA 156 [24] (Callaway JA; Buchanan and Eames JJA agreeing); R v Rainford [2003] VSCA 49 [19] (Buchanan JA; Callaway JA and Warren AJA agreeing); [2004] VSCA 11; (2004) 141 A Crim R 579, 591 [40] (Smith AJA); R v Breary [2004] VSCA 229; (2004) 11 VR 151, 163 [43] (Buchanan JA); R v Quarry [2005] VSCA 65; (2005) 11 VR 337, 349 [41] (Eames JA); DPP v Adams [2006] VSCA 149 [66] (Vincent, Ashley and Redlich JJA); WCB v The Queen (2010) 29 VR 483, 497 [48] (Warren CJ and Redlich JA).
[72] [2001] HCA 29; (2001) 206 CLR 512, 532 [31].
[73] (2000) 49 NSWLR 383, 388 [11] ('Thomson and Houlton').
[74] Cameron (2002) 209 CLR 339, 358 [65(1)].
[75] [2001] HCA 64; (2001) 207 CLR 584, 609-11 [67]-[73] (Gaudron, Gummow and Hayne JJ), 627-35 [118]-[140] (Kirby J), 643 [167] (Callinan J).
[76] Cameron (2002) 209 CLR 339, 358 [65(1)].
[77] [2002] NSWCCA 142; (2002) 54 NSWLR 300, 315 [67].
[78] Australian Law Reform Commission, above n 24, 93 [173].
[80] New South Wales, Parliamentary Debates, Legislative Assembly, 4 April 1990, 1690 (John Dowd), quoted in Thomson v Houlton (2000) 49 NSWLR 383, 387-8 [9].
[81] He referred to: Criminal Law (Sentencing) Act 1988 (SA) s 10(g); Sentencing Act 1995 (WA) s 8(2); Sentencing Act 1991 s 5(2)(e); Penalties and Sentences Act 1992 (Qld) s 13; Sentencing Act (NT) s 5(2)(j); Crimes Act 1900 (ACT) s 429A(1)(u); Crimes Act 1914 (Cth) s 16A(2)(g).
[82] [2002] NSWCCA 142; (2002) 54 NSWLR 300, 310-12 [45]-[52] (citations omitted).
[83] [2009] NSWCCA 102; (2009) 195 A Crim R 1, 10 [32] (Howie J; McClellan CJ at CL and Simpson J agreeing).
[84] Morton [1986] VicRp 82; [1986] VR 863, 867 (Young CJ, King and Beach JJ); Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, 310-11 [46] (Spigelman CJ); Phillips (2012) 37 VR 594, 609 [49] (Redlich JA and Curtain AJA); R v Place [2002] SASC 101; (2002) 81 SASR 395, 423-4 [75] (Doyle CJ, Prior, Lander and Martin JJ); Rigby v Western Australia [2005] WASCA 134 [36] (Le Miere AJA).
[86] Gleeson, Gummow, Hayne and Callinan JJ, Gaudron J concurring in this aspect of the judgment though dissenting on unrelated grounds.
[88] Ibid 663-4 [22] (emphasis added).
[94] (2000) 49 NSWLR 383, 386 [3] (Spigelman CJ).
[97] [1998] 3 VR 208, 215.
[98] [1990] 2 Qd R 559, 564 (Byrne J; McPherson and Moynihan JJ agreeing).
[100] [2000] QCA 40; (2000) 110 A Crim R 348, 363 [89].
[101] [1993] QCA 417; [1994] 2 Qd R 415, 416, 419.
[102] Cameron (2002) 209 CLR 339, 350-1 [39] (citations omitted).
[103] Ibid 359-61 [65(5)]-[68] (citations omitted).
[104] [2001] NSWCCA 196 ('Bugeja').
[105] Ibid [23]-[27]. Greg James J agreed with Hodgson JA that the judge had fallen into error in 'failing to afford to the applicant the utilitarian value of his plea': at [33].
[106] [2001] NSWCCA 396; (2001) 125 A Crim R 303, 305 [10] (Wood CJ at CL; Heydon JA and Carruthers AJ agreeing).
[107] Ibid 304-5 [9]-[10]. See also R v Chanthaboury [2001] NSWCCA 74; (2001) 120 A Crim R 505, 510 [30] (McClellan J).
[108] [2001] NSWCCA 74; (2001) 120 A Crim R 505, 510 [29].
[112] [2001] WASCA 254; (2001) 122 A Crim R 559, 561-2 [16]-[18].
[115] (1998) 194 CLR 656, 663-4 [22].
[116] Cameron (2002) 209 CLR 339, 343 [11].
[118] Ibid 343-4 [12]-[15] (emphasis added).
[119] Ibid 345 [19] (emphasis added).
[120] Ibid 352 [44] (emphasis added).
[121] Ibid 357 [45] (emphasis in original).
[124] See Forkin v Western Australia [2013] WASCA 51.
[125] See, eg, Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397.
[126] [2003] NSWCCA 147; (2003) 142 A Crim R 166, 170 [11].
[129] [2004] NSWCCA 118 [22].
[133] [2005] WASCA 4 [14].
[134] [2007] NSWCCA 270; (2007) 177 A Crim R 121, 126-7 [30].
[135] See, eg, Le v The Queen [2007] FCA 1463 [20] (Edmonds J).
[138] [2007] NSWCCA 1; (2007) 168 A Crim R 41, 49 [33].
[142] [2011] NSWCCA 215; (2011) 221 A Crim R 365, 381 [82].
[143] [2008] NSWCCA 205 [54] (Hoeben J; McClellan CJ at CL and Hislop J agreeing).
[144] [2008] NSWCCA 159 [15] (Price J; Allsop P and James J agreeing).
[147] See, eg, R v Ng [2009] VSCA 218; Barbaro v The Queen [2010] VSCA 288; (2012) 226 A Crim R 354, 364 [32] (Maxwell P, Harper JA and T Forrest AJA).
[148] (2011) 32 VR 149, 166 [93] ('Bui').
[149] (2013) 41 VR 128, 153-4 [137] n 42.
[150] [2014] VSCA 128 ('Peng').
[152] [2015] VSCA 255 [115].
[153] [2015] NSWCCA 208; (2015) 298 FLR 397 ('Gow').
[154] Ibid 403-4 [26]-[28] (citations omitted).
[155] Ibid 412 [71]. In R v Saleh [2015] NSWCCA 299, Beech-Jones J expressed the view that Tyler represents the applicable law in New South Wales, notwithstanding the judgments in Gow [5]. Johnson J and R S Hulme AJ did not address this issue.
[156] [2016] ACTCA 10; (2016) 11 ACTLR 215 ('Harrington').
[162] Ibid 424 [77]-[78] (Doyle CJ, Prior, Lander, and Martin JJ).
[165] Cameron (2002) 209 CLR 339, 359-61 [65]-[68] (Kirby J).
[167] (1992) 58 A Crim R 345, 350 (Hunt CJ at CL).
[168] Ibid 315-16 [68] (citations omitted).
[170] Ibid [25], quoting R v Dib [2003] NSWCCA 117 [4]-[6]. See also R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40, 42-3 [12]-[14] and the many cases there cited.
[174] Ibid [14] (emphasis added) (citations omitted).
[176] Ibid [15]-[16]. See also R v Perdikoyiannis [2011] SASCFC 82 [39] (Gray J), [103]-[104] (White J).
[177] [2002] QCA 174 [58].
[178] Ibid [78] (citations omitted).
[179] (2002) 209 CLR 339, 344-5 [18]-[19] (Gaudron, Gummow and Callinan JJ).
[180] Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, 315 [65] (Spigelman CJ).
[186] Cameron (2002) 209 CLR 339, 343 [14] (Gaudron, Gummow and Callinan JJ).
[187] Ibid 345 [19] (emphasis added).
[188] [2007] NSWCCA 247; (2007) 173 A Crim R 458, 476 [111] (citations omitted).
[190] Danial v The Queen [2008] NSWCCA 15 [26]-[30] ((James J; McClellan CJ at CL and Barr J agreeing); C v The Queen [2013] NSWCCA 81; (2013) 229 A Crim R 233. 237 [21], 240 [33] (Hoeben JA; Adams and Beech-Jones JJ agreeing); Isaac v The Queen [2012] NSWCCA 195 [24]-[27] (Garling J; Hoeben JA and Latham J agreeing); Lee v The Queen [2012] NSWCCA 123 [56]-[60] (Hoeben JA; Hidden and Beech-Jones JJ agreeing); Ma v The Queen [2010] NSWCCA 320 [32]-[33] (Schmidt J; Simpson J and Howie AJ agreeing); Leighton v The Queen [2010] NSWCCA 280 [47]-[48] (Price J; Simpson J and Howie AJ agreeing).
[191] Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215, 232-3 [104] (Refshauge ACJ and Gilmour J).
[193] [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ)).
[194] (2007) 230 CLR 89 ('Farah').
[195] Ibid 151-2 [135] (citations omitted) (Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ).
[196] [2012] WASCA 157; (2012) 44 WAR 1 ('Bell').
[197] Ibid 379-84 [2104]-[2126] (Drummond AJA; Lee AJA agreeing).
[198] [2014] NSWCA 266; (2014) 311 ALR 494 ('Hasler').
[199] Ibid 514-15 [97]-[101] (emphasis added). See also Justice Mark Leeming, 'Farah and Its Progeny: Comity among Intermediate Appellate Courts' (2015) 12 Judicial Review 165, 180-1.
[203] [2015] NSWCCA 208 [28].
[205] See, eg, R v O'Brien [2011] NSWSC 1553 [54] (Hoeben J) R v Sukkar [2006] NSWCCA 92 [50]; R v Smith [2011] SASCFC 124 [15]-[16]; Perdikoyiannis v R [2011] SASCFC 82 [103]-[104].
[208] MacKenzie, Geraldine --- 'The Guilty Plea Discount: Does Pragmatism Win Over Proportionality and Principle?' [2007] SCULawRw 6; (2007) 11 Southern Cross University Law Review 205 at 208. See, eg, R v Slater (1984) 36 SASR 526; Dowie [1989] TASSC 44; (1989) 42 A Crim R 234, 251; Harman [1988] HCA 50; (1988) 35 A Crim R 47; Morton [1986] VicRp 82; [1986] VR 863; R v Giakis (1988) 33 A Crim R 23, 27; R v Winters (1997) LSJS 350, 354; Iskander v The Queen [2001] WASCA 409 [30]; R v B [2004] WASCA 1 [6]; R v Davey [2006] SASC 177 [21].
[209] See David Field: Plead Guilty Early and Convincingly to Avoid Disappointment, Vol 14, Issue 2, Bond Law Review at 258; Shaw, Joel --- 'Cameron v The Queen: A Consideration of Sentencing Principles Applicable to Pleas of Guilty' [2002] QUTLawJJl 16; (2002) 2(2) Queensland University of Technology Law and Justice Journal 292.
[220] DPP v Thomas (Unreported, County Court of Victoria, Judge Montgomery, 1 October 2015) [11] ('Thomas Reasons_'_).
[222] Ibid, quoting Director of Public Prosecutions (Cth), Federal Sentencing in Victoria (2015) 22.
[224] Ibid [21], quoting Director of Public Prosecutions (Cth), above n 219, 22.
[225] [2015] NSWCCA 208; (2015) 298 FLR 397, cited in Thomas Reasons [24].
[226] Ibid [30]-[51]; it is noted that plea Counsel for the Commonwealth did not appear to take sentence.
[231] See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6], where Gleeson CJ and Hayne J said:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[232] DPP (Cth) v Watson [2016] VSCA 73 [121] (Priest JA).
[233] [2009] VSCA 220; (2009) 24 VR 457, 460 [5] (emphasis in original) (Maxwell P, Redlich JA and Robson AJA).
[235] Ibid [1]. A commercial quantity of pure methamphetamine is 750 grams pursuant to Criminal Code Regulations 2002 (Cth) reg 5D(2), sch 4 item 117.
[241] Ibid 608 [65] (emphasis in original) (Gaudron, Gummow and Hayne JJ), quoted in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 473 [28].
[242] Wong [2001] HCA 64; (2001) 207 CLR 584, 591 [6].
[243] [2010] HCA 45; (2011) 242 CLR 520, 535 [47]-[49] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
[244] Ibid 537 [54], quoting DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 70 [303] (Simpson J) ('De La Rosa').
[245] [2013] HCA 31; (2013) 248 CLR 483, 495 [28] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[246] [2015] HCA 39; (2015) 325 ALR 400 ('Pham').
[249] [2016] VSCA 198 ('Nam Son Nguyen').
[250] Ibid [69] (citations omitted).
[251] See, eg, DPP v Zhuang [2015] VSCA 96 [30] (Redlich, Priest and Beach JJA).
[252] [2014] HCA 2; (2014) 253 CLR 58 ('Barbaro').
[253] Nam Son Nguyen [2016] VSCA 198 [71] (Redlich JA).
[254] [2016] QCA 143 [31] (Flanagan J; Gotterson JA and Applegarth J agreeing).
[255] [2014] HCA 2; (2014) 253 CLR 58, 73 [38] (French CJ, Hayne, Kiefel and Bell JJ).
[257] (2014) 44 VR 280, 292 [27]-[28] (citations omitted).
[258] [2014] QCA 89 [7] (Fraser JA; Gotterson and Morrison JJA agreeing).
[259] [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 71 [304].
[263] [2015] VSCA 266 [49].
[264] DPP (Cth) v Chau (Unreported, County Court of Victoria, Judge Lawson, 29 April 2014) ('Chau'); DPP (Cth) v Liu (Unreported, County Court of Victoria, Judge Harbison, 18 September 2014) ('Liu').
[265] [2014] QCA 280; (2014) 246 A Crim R 72 ('Agboti').
[266] [2010] NSWCCA 232 ('Ng'). The citation which appears in the schedule is incorrect. There was a 25 per cent reduction on the basis of a willingness to facilitate the course of justice for the plea of guilty: at [6] (McClellan CJ at CL; R S Hulme and Davies JJ agreeing).
[267] [2015] NSWCCA 143 ('Lam').
[268] See Agboti [2014] QCA 280; (2014) 246 A Crim R 72; R v Banker [2016] QCA 74 ('Banker'); Ng [2010] NSWCCA 232; Lam [2015] NSWCCA 143.
[269] [2011] VSCA 324 ('Lau').
[270] (2012) 221 A Crim R 424 ('OPQ').
[273] R v Harris [2009] QCA 370; El-Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208; Youssef v The Queen [2011] NSWCCA 104; DPP (Cth) v Merrill [2015] VSCA 52.
[275] [2010] NSWCCA 238; (2010) 205 A Crim R 106, 126-8 [72] (citations omitted).
[276] DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 49-51 [207]-[215] (McClellan CJ at CL).
[277] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538-40 [59]-[62] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[280] Unreported, County Court of Victoria, Judge Lawson, 29 April 2014.
[281] Unreported, County Court of Victoria, Judge Harbison, 18 September 2014.
[282] The only cases on the schedule in which lesser sentences were imposed were from Victoria. Of itself, that is not a relevant consideration in federal offending: Pham (2015) 325 ALR 406.
[283] [2016] VSCA 198 [72] (citations omitted).
[284] See Pham [2015] HCA 39; (2015) 325 ALR 400, 406 [28(7)] (French CJ, Keane and Nettle JJ).
[285] [2010] VSCA 350; (2010) 31 VR 634 ('Karazisis').
[286] See generally Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[287] [2015] HCA 9; (2015) 317 ALR 308, 316 [34] (French CJ and Gageler J), 321-2 [56] (Kiefel, Bell and Keane JJ) ('CMB'), quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451, 458 [12] (Heydon JA; Levine J and Carruthers AJ agreeing).
[288] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477 [36] (French CJ, Crennan and Kiefel JJ).
[289] DPP (Cth) v Wu [2016] VCC 141 ('Wu Reasons').
[290] (2012) 37 VR 594 ('Phillips').
[294] [2011] VSCA 32; (2011) 31 VR 673, 681-2 [34] (Maxwell P).
[301] [2015] VCC 1961 ('Okoka').
[302] Wu Reasons [52]-[53] (citations omitted).
[303] Pham [2015] HCA 39; (2015) 325 ALR 400, 406-7 [28]-[29] (French CJ, Keane and Nettle JJ).
[304] DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 70-1 [303]-[304] (citations omitted). This passage was quoted with approval in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[311] Pham [2015] HCA 39; (2015) 325 ALR 400, 406 [28(7)] (French CJ, Keane and Nettle JJ); Wong [2001] HCA 64; (2001) 207 CLR 584, 605-6 [57]-[58] (Gaudron, Gummow and Hayne JJ); Hili [2010] HCA 45; (2010) 242 CLR 520, 538-9 [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), 543-4 [75]-[76] (Heydon J).
[312] Nguyen v The Queen [2016] VSCA 198 [72] (Redlich JA).
[313] Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357, 372 [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[314] R v Richard [2011] NSWSC 866 [65]; R v De Leeuw [2015] NSWCCA 183 [116]; Watson [2016] VSCA 73 [110].
[319] [2014] NSWCCA 111 ('Webber').
[320] [2015] VSCA 314 ('Hui').
[325] [2009] QCA 370 ('Harris').
[326] [2009] NSWCCA 140; (2009) 195 A Crim R 208 ('El-Ghourani'). The discount at plea was said by the sentencing judge to have only been 15 per cent because of the limited utilitarian value. The basis of the reduction was not an issue on appeal as the Court dismissed the complaint that the sentence was manifestly excessive: at 212.
[327] [2011] NSWCCA 104 ('Youssef').
[328] [2015] VSCA 52 ('Merrill').
[330] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[331] [2015] HCA 9; (2015) 317 ALR 308, 316 [34] (French CJ and Gageler J), 321-2 [56] (Kiefel, Bell and Keane JJ) ('CMB'), quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451, 458 [12] (Heydon JA; Levine J and Carruthers AJ agreeing).
[336] Ibid 427 [15] (Neave JA; Maxwell ACJ agreeing).
[340] Ibid [19] (A Lyons J; McMurdo P and Atkinson J agreeing).
[342] Ibid 212 [9] (Spigelman CJ; James and Simpson JJ agreeing).
[344] In NSW if there is a plea and assistance with the authorities a combined discount is often given: R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim 151, 166-8 [50]-[56] (Latham J; McClellan CJ at CL and Howie J agreeing) (usually no more than 45-50 per cent for an early plea and assistance of the highest order).
[347] Ibid [5] (McClellan CJ at CL; R S Hulme and Davies JJ agreeing).
[348] Unreported, County Court of Victoria, Judge Lawson, 29 April 2014.
[349] Unreported, County Court of Victoria, Judge Harbison, 18 September 2014.
[352] Ibid [39] (citations omitted).
[359] Ibid 75 [15], 84 [53] (McClellan CJ at CL; R S Hulme and Davies JJ agreeing).
# DPP (Cth)
Thomas \[2016\] VSCA 237
(2015) 298 FLR 397
(2016) 11 ACTLR 215
(1986) 6 NSWLR 603
(1992) 59 SASR 300
(2006) 228 CLR 357
(2001) 207 CLR 584
(2016) 331 ALR 369
(1997) 187 CLR 384
(1989) 51 SASR 229
(2003) 7 VR 128
(2005) 11 VR 337
(2010) 29 VR 483
(2002) 209 CLR 339
(2000) 49 NSWLR 383
(2002) 76 ALJR 382
(2010) 242 CLR 520
(2009) 239 CLR 27
(1990) 20 NSWLR 427
(1984) 36 SASR 524
(2008) 36 WAR 393
(2011) 32 VR 149
(1993) 177 CLR 485
(2014) 311 ALR 494
(2000) 202 CLR 321
(2009) 24 VR 457
(2011) 242 CLR 520
(2015) 325 ALR 406
(2014) 87 NSWLR 609
(2002) 54 NSWLR 300
(1998) 194 CLR 656
(2001) 162 FLR 313
(2004) 205 ALR 346
(2004) 218 CLR 174
(2012) 244 CLR 638
(1998) 194 CLR 355
(1994) 49 FCR 556
(2004) 11 VR 151
(2004) 41 MVR 40
(2011) 244 CLR 462
(2015) 325 ALR 400
(2014) 253 CLR 58
(2014) 44 VR 280
(2015) 317 ALR 308
(1979) 21 SASR 442
(2012) 37 VR 594
(2002) 81 SASR 395
(1999) 48 NSWLR 340
(1990) 21 NSWLR 370
(2004) 222 CLR 322
(1994) 34 NSWLR 200
(1987) 11 NSWLR 46
(2001) 206 CLR 512
(1999) 198 CLR 111
(2013) 41 VR 128
(2007) 230 CLR 89
(2012) 44 WAR 1
(1984) 36 SASR 526
(2010) 79 NSWLR 1
(2013) 248 CLR 483
(2010) 31 VR 634
(2011) 31 VR 673
(2007) 16 VR 269