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[2004] HCA 22
respondent. In each matter, appeal dismissed.
The High Court held that the alleged plea agreement did not prevent the Court of Appeal from increasing the sentences. The appellants had pleaded guilty on the basis that each had helped or encouraged the person who strangled the victim. Whether an aider and abettor is less blameworthy than the principal depends on the facts, and there is no automatic entitlement to a lower sentence. The Court considered the violent circumstances and the admissions inherent in the pleas, and upheld the finding that the original sentences were manifestly inadequate. It also said substantial plea-related agreements should generally be recorded clearly, preferably in writing.
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2,304 words · generated 05/10/2026
The High Court of Australia decided two related appeals, GAS v The Queen and SJK v The Queen, on 19 May 2004. Both appellants challenged the Victorian Court of Appeal's decision to allow prosecution appeals against their sentences for manslaughter. Their sole ground in the High Court was that the Court of Appeal had permitted the prosecution to conduct its appeals, and had itself dealt with those appeals, contrary to an asserted plea agreement.
No linked legislation citations have been extracted yet.
The appellants were 16 and 15 when the offending occurred. The victim was a 73-year-old woman who lived with her adult son, who had a disability. The appellants knew that the household kept cash at home and that the doors were often left unlocked. They had previously entered the house and stolen money. On the night of 15 October 2000 they returned to steal again. The victim was killed by manual compression of the neck. The injuries described in the judgment included trauma to her head and body, fractured ribs, and injuries consistent with strangulation and a brutal assault ([2]-[4]).
The appellants were initially charged with murder and pleaded not guilty. Before a jury was empanelled, the prosecution obtained leave to file a new presentment charging manslaughter instead. Both appellants pleaded guilty. The prosecutor explained that the Crown could not establish who had strangled the victim and submitted that each appellant should be sentenced as an aider and abettor, rather than as the principal offender ([5]). At the sentence hearing, the prosecution accepted that it could not identify the killer, but stressed the gravity of the crime and the vulnerability of the victim ([6]-[10]).
The trial judge sentenced each appellant to six years' imprisonment, with a four-year non-parole period ([12]). On the Director of Public Prosecutions' appeals, the Victorian Court of Appeal found the sentences manifestly inadequate and imposed higher sentences. It concluded that too little weight had been given to the objective gravity and aggravating features of the killing, and too much weight to the offenders' youth and rehabilitation prospects ([18]). The High Court dismissed both appeals ([45]).
The High Court examined the legal effect of the guilty pleas and the boundaries of the asserted agreement. It identified distinct responsibilities: the prosecutor decides what charges to bring; the accused alone decides whether to plead guilty; and the sentencing judge alone determines the sentence ([28]-[30]). A plea is not made with a guarantee of a particular sentence. The judge must find the relevant facts and apply the law, and counsel's conduct cannot restrict that judicial responsibility ([31]).
The Court distinguished factual agreements from agreements about legal principles. The prosecution and defence may agree on evidence or admissions, and that agreement may affect the facts the judge can find. But even if counsel agree about the legal submissions they will make, their agreement does not bind the judge on the law ([31]-[32]). Here, the alleged term that each appellant should receive a lesser sentence than a principal was not simply a factual basis for the pleas. It was a proposition about sentencing principle. The Court described it as vague and uncertain, because it did not explain what “a lesser sentence” meant or by what margin ([35], [39]).
The record showed that the prosecution had submitted the appellants should be sentenced as aiders and abettors in accordance with Bannon and Calder. But the High Court found no established agreement that the prosecution would concede a particular sentencing outcome. The central dispute concerned what followed from sentencing the appellants as aiders and abettors, not whether the prosecution had withdrawn that position ([36]-[38]).
The High Court also addressed the actual culpability admitted by the pleas. It relied on Giorgianni v The Queen for the proposition that aiding and abetting requires intentional participation by assistance or encouragement. A secondary participant must know or believe that what they are assisting goes to make up the facts constituting the offence, although they need not recognise the offence by its legal name ([19]). In this case, the pleas admitted that each appellant was present at the act causing death and intentionally assisted or encouraged the person who strangled the victim ([19]).
That admission mattered because the offence was not an abstract or minor form of assistance. The unlawful and dangerous act causing death was strangulation, in the setting of a nighttime home invasion, robbery and violent attack on an elderly and vulnerable person ([19]-[20]). The High Court considered that the Court of Appeal was right to regard the sentences as manifestly inadequate in light of the admissions and the aggravating circumstances ([20]).
The Court rejected a categorical approach to relative culpability. An aider and abettor is not invariably less culpable than a principal. A manipulative or dominant aider may be more culpable; even where the aider is less culpable, the degree of difference depends on the circumstances ([23]). The relevant question was whether the sentences imposed on the basis that the appellants were aiders and abettors were adequate, not what sentence one of them might have received in a hypothetical trial as the principal offender ([25]).
Finally, the High Court noted that the appellants had not asked the Court of Appeal to exercise its discretion to dismiss the prosecution appeals because of prosecution conduct. The Court considered that such a submission would have required clearer evidence about the alleged agreement. In any event, the Court of Appeal had found the sentencing error arose from insufficient attention to the objective circumstances and excessive emphasis on subjective circumstances, rather than from an implied prosecution submission about Bannon and Calder ([40]).
The judgment applied and clarified several existing principles rather than announcing a new statutory sentencing scheme. Before this decision, the prosecutor's role in choosing charges, the accused's role in deciding whether to plead, and the sentencing judge's responsibility to determine the sentence were established features of criminal procedure. The High Court set them out expressly and explained their implications for plea discussions ([28]-[32]).
The judgment also addressed Bannon and Calder, a Victorian Court of Criminal Appeal decision concerning offenders whose respective roles in unlawful homicide could not be distinguished. The High Court explained that Bannon and Calder did not establish a universal rule that an aider and abettor must always receive a lower sentence than a principal. Its reasoning was tied to its circumstances, including the fact that the offenders in that case had each received the maximum penalty ([21]-[23]). The High Court said any difference in culpability or sentence is fact-dependent.
After this decision, a sentencing submission that a person was an aider and abettor remains relevant, but the label does not mechanically dictate a fixed discount. The judge must consider the admitted conduct, the circumstances, and the offender's actual role as far as the evidence permits ([23], [25]). The judgment likewise makes clear that parties cannot bind a judge to a legal conclusion by reaching an agreement between counsel ([31], [35]).
The High Court's comments on written records are practical guidance, not a replacement for those substantive principles. It said that agreements about substantial matters potentially relevant to a guilty plea should generally be recorded, and that written terms can reduce misunderstanding and later disputes ([42]-[44]). The judgment does not prescribe a mandatory form or state that every informal plea discussion is invalid.
At [19], the Court explained that aiding and abetting requires “intentional participation in a crime by lending assistance or encouragement”. In plain English, merely being present is not enough for that form of participation. The relevant admission must encompass intentional assistance or encouragement of the criminal acts. The Court applied this to the pleas as they were presented in this case.
At [20], the Court said that the pleas admitted a very serious offence, even though each appellant denied personally strangling the victim. In practical terms, uncertainty about which person applied the fatal force did not erase the significance of the conduct that each had admitted: being present and intentionally helping or encouraging the person who did so.
At [23], the Court stated that “a manipulative or dominant aider and abettor may be more culpable than a principal”. This rejects an automatic hierarchy in which the person who physically performs the final act is always more blameworthy. The relative role must be assessed on the evidence and circumstances of the particular case.
At [25], the Court said that the real question was whether the sentences imposed on the basis that the appellants were aiders and abettors were adequate. The point was not to imagine a different sentence for a hypothetical principal offender. This keeps the appellate inquiry focused on the actual sentences under challenge and the basis on which they were imposed.
At [31], the Court stated that the judge's responsibility to find and apply the law “is not circumscribed by the conduct of counsel”. Put simply, prosecution and defence counsel can make submissions and agree on matters within their control, but they cannot require the judge to apply a legal rule the judge considers incorrect.
At [42]-[44], the Court recommended recording substantial plea-related agreements, usually in writing. The purpose is to make clear what each side has agreed and to help counsel advise clients on the basis of the actual agreement. This observation does not itself settle the legal effect of any later disputed agreement.
The judgment is especially relevant where an accused pleads guilty on a stated basis about their role in a group offence, but the parties later disagree about the sentencing significance of that role. It is also relevant where the prosecution cannot prove which participant performed the act causing death, yet the accused admits intentional assistance or encouragement.
It matters where counsel say that an accused will be sentenced as an aider and abettor, or refer to an earlier case as requiring a particular outcome. The judgment distinguishes an agreement about facts or admissions from a purported agreement about what sentencing law requires. A judge may be practically limited by the evidence and admissions available, but remains responsible for applying the law ([30]-[32]).
The case also applies to prosecution appeals against sentence where the appellant argues that the prosecution should be held to an earlier position. The judgment indicates that an appellate discretion to decline intervention may be relevant to prosecution conduct, but the point must be raised and supported sufficiently to identify what was agreed and how the conduct affected the sentence ([17], [40]).
The facts here were particularly grave: a victim was killed during a robbery and home invasion, and the appellants' pleas admitted intentional assistance or encouragement to the strangler. The Court's assessment of manifest inadequacy was grounded in those circumstances ([19]-[20]). The case should not be read as setting a numerical sentencing tariff for other manslaughter matters, or as establishing that all aiders and abettors should receive sentences close to those of principals.
The supplied judgment contains no account of later cases applying or interpreting GAS v The Queen; SJK v The Queen. On the material provided, it is therefore not possible to state how later courts have treated this decision, whether they have followed or distinguished it, or whether they have developed its principles further.
What can be identified from this judgment itself is its treatment of earlier authorities. It explains Bannon and Calder and confines that decision to its context rather than treating it as a universal rule about sentencing aiders and abettors ([21]-[25]). It applies the reasoning in Giorgianni concerning intentional participation by assistance or encouragement ([19]). It refers to R v Clarke and Everett in discussing the appellate discretion to decline intervention despite error ([17], [40]).
The judgment also cites Barton, Maxwell, Cheung and R v Olbrich for propositions concerning the roles of prosecutor and judge, factual findings, and the judge's capacity to determine facts ([28], [30]). The extract does not provide later treatment of those authorities either. Any account of subsequent precedent would require sources beyond the judgment text supplied here.
The High Court did not decide the precise ambit of an appellate court's discretion to decline intervention in a prosecution appeal despite error. It said that it was unnecessary to examine the discretion because no such submission had been made to the Court of Appeal and because the alleged agreement was not established ([40]). The judgment therefore leaves open how that discretion should operate in other cases, including what kinds of prosecution conduct may justify declining to intervene.
The decision also does not define a formula for measuring the sentencing difference, if any, between an aider and abettor and a principal. It says that the difference depends on the circumstances and may be small, or may point in the other direction if the aider is manipulative or dominant ([23], [25]). The assessment remains fact-sensitive.
The Court recommended written records but did not specify the formal requirements for a binding plea agreement, nor did it determine the consequences of failing to record one in writing ([42]-[44]). It emphasised clarity and reliable evidence, particularly where a party later says that an agreement influenced the decision to plead guilty.
Finally, the judgment addressed the admissions inherent in these particular pleas and the facts presented at sentencing. It does not decide how far a court may infer intentional assistance in a different case, or what evidence would establish the role of each participant where the facts are disputed. Those matters would depend on the charge, the plea basis, the evidence and the applicable legal sources.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND HEYDON JJ
Matter No M273/2003
GAS APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M275/2003
SJK APPELLANT
AND
THE QUEEN RESPONDENT
GAS v The Queen; SJK v The Queen
[2004] HCA 22
19 May 2004
M273/2003 and M275/2003
ORDER
In each matter:
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
I D Hill QC with L C Carter for the appellant in M273/2003 (instructed by Jones Dowling McGregor)
R Richter QC with T Kassimatis for the appellant in M275/2003 (instructed by Victoria Legal Aid)
P A Coghlan QC with C M Quin for the respondent in both matters (instructed by the Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
GAS v The Queen
SJK v The Queen
Criminal law – Sentencing – Prosecution granted leave to file new presentment charging manslaughter in place of murder against two accused – Counsel for prosecution informed trial judge of "plea agreement" whereby accused would plead guilty and prosecution would submit that sentencing should proceed on basis that each accused was an aider or abettor rather than principal offender – Prosecution appeal against sentence on ground of manifest inadequacy – Appeal succeeded on basis that insufficient weight given to objective gravity of killing and aggravating circumstances, and undue weight given to youth and rehabilitation prospects of offenders – Whether Court of Appeal erred in dealing with the appeal in a manner contrary to the "plea agreement" – Effect of admission involved in pleading guilty to unlawful and dangerous act manslaughter – Culpability of aider and abettor relative to that of principal offender.
Criminal law – Sentencing – "Plea agreement" – Whether prosecution conduct of appeal was contrary to "plea agreement" – Respective responsibilities of prosecution, accused and trial judge with respect to "plea agreements" – Whether trial judge's responsibility to find and apply sentencing principles may be circumscribed by conduct of counsel – Whether appropriate that "plea agreement" should deal with issues of sentencing principle – Desirability of reducing "plea agreement" to writing – Discretion of appeal court in prosecution appeals against sentence to decline to intervene although error is shown in sentencing process.
Words and phrases – "plea agreement", "aider and abettor".
The facts
The prosecution of the appellants, who were aged 16 and 15 respectively at the time of the event, arose out of the brutal killing of an elderly woman in the course of a robbery at her home. The victim was aged 73. She lived alone with her handicapped son, aged 47. The appellant SJK knew the son, and both appellants knew that the victim kept substantial amounts of cash at home in order to provide her son with money for shopping expeditions, which he enjoyed. They also knew that the doors of the house were often left open at night by the son.
The victim was found dead on the morning of 16 October 2000. Her condition was described by the Court of Appeal as follows:
"The cause of death was asphyxia by manual neck compression. Although he was unable to exclude the possibility that there was some element of smothering in the mechanism of death, the pathologist gave evidence ... that the main cause of death was one of strangulation. The pathologist noted multiple areas of blunt trauma to the head, chest, back and the anal and vaginal areas. He also noted trauma to the front, back and top of the skull. Each was a separate injury. The bruising to the head was more likely to be caused by a fist. The bruising around the laryngeal cartilage was consistent with squeezing. There was also bruising around the vaginal area which was consistent with pressing fingers. There was a symmetrical pattern of bruising over the anterior chest which was consistent with someone having knelt on the chest of the deceased. The deceased also sustained three fractured ribs which would have required at least moderate to severe force to occur."
The pleas at trial
The appellants were both charged with murder, and were committed to the Supreme Court of Victoria for trial. Each pleaded not guilty. On 24 July 2001, before a jury was empanelled, counsel for the prosecution informed the trial judge that there had been "some developments". He then informed the judge of the following matters. First, he said the prosecution would seek leave "to file over a new presentment". Secondly, he told the judge that this had been a "difficult forensic case" because there had been no plan to kill the deceased prior to the entry into the house, SJK had said it was GAS who did the killing, GAS had said that he wasn't there at all, and there were certain "difficult forensic problems". Thirdly, he said that the family of the victim were in court. Fourthly, he said, "it has been indicated to us that each accused will plead guilty to this presentment, and it has also been indicated to us that each accused, through their counsel, will not be urging upon your Honour, in terms of the sentencing process, that either is appropriate for a youth training centre". The judge granted leave to file the new presentment, which charged manslaughter in place of the earlier charges of murder. The appellants were re-arraigned and both pleaded guilty. It appears to have been the common understanding that sentencing would not occur on that day, and that the proceedings would need to be adjourned for evidence and submissions on sentence. Counsel for the prosecution said that he wished to indicate that the prosecution was unable to say, and would never be able to say, who killed the deceased. He went on: "Accordingly, the proper way for your Honour to sentence both the accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were each aiders and abettors, that is, the Crown cannot point to who was the principal offender". He said that authority for that proposition was to be found in a decision of the Victorian Court of Appeal in R v Bannon and Calder3. The judge enquired as to "the basis of the manslaughter", and counsel replied that it was "lack of intent, unlawful and dangerous act". Counsel said "it will be an unlawful and dangerous act manslaughter on the basis of the unusual circumstances of this case, that the Crown cannot prove or demonstrate to your Honour's satisfaction to the relevant standard who was the principal offender. Bannon's case is authority where the Crown cannot do that." He gave the judge the reference to Bannon and Calder and said that where someone was killed in those circumstances "the sentencing judge was perfectly at liberty to sentence them on the basis at the very least that they were aiders and abettors". There was some discussion about matters irrelevant to the present appeal. The proceedings were then adjourned.
When the matter resumed on 11 October 2001, new counsel appeared. Counsel for the prosecution commenced by making a detailed statement, from the bar table, of the alleged facts and circumstances relating to the killing of the deceased, emphasising the nature and extent of her injuries, and the extreme violence inflicted upon her, but not suggesting that either one of the appellants was the person who had attacked and killed her. No objection was raised to this course, and the facts stated were apparently accepted by counsel for the appellants as both true and relevant. Counsel said that the circumstances in which the victim met her death represented "one of the worst nightmares of all elderly women in our community". He elaborated upon the age and vulnerability of the victim, the circumstances of her handicapped son, the taking advantage by the offenders of their knowledge of the household, the fact that on a previous night they had stolen money from the house, the planning of an entry at night to steal more money, and the details of the police interviews of the offenders. Counsel emphasised that both appellants had lied to the police in various ways. He then said:
"In this case where the Crown is not able to prove to the requisite standard the precise role played by each of these accused, they, therefore, fall to be sentenced in accordance with the judgment of the Court of Criminal Appeal in R v Bannon and Calder … Each of the accused falls to be sentenced as an aider and abetter, not a principal in the first degree.
Your Honour, as to sentence, the Crown submits as follows: That although this court must give weight to the fact that each accused is a youthful offender and thus rehabilitation must be given full weight, it must also be borne in mind that this death resulted from an extremely serious crime. The victim was an elderly vulnerable person who was attacked in her own home, a place where she had every right to feel safe from intruders.
The accused, in the Crown's submission, made a cynical and deliberate use of the home [scil known] proclivities of her mentally handicapped son to leave the doors of the house unlocked. They entered her house in the dead of night knowing that she was at home and in her bed. They knew that she was a vulnerable elderly lady who had difficulty with mobility. They returned to the scene of a previously successful foray which resulted in them daringly stealing a handbag from the side of a bed while she slept. When she awoke the accused could have easily made good their escape but chose to stay while [the victim] was attacked in a way that was obviously dangerous in the relevant sense. In my submission, there is no doubt that after her death her bedroom was ransacked while she lay dead on the floor after being beaten and strangled. This conduct, in my submission, displays a callousness which does not augur well for the prospect of rehabilitation.
Having regard to the circumstances of this crime, it is the Crown's submission that the aspects of general deterrence and of demonstrating community disapproval of this serious criminal conduct must be given considerable weight."
It was not suggested to Bongiorno J that those submissions were contrary to any agreement that had previously been made, or that it was not open to the prosecution to press them.
Victim impact statements were tendered. As to the nature of the manslaughter, counsel said that "both accused returned to the scene of their successful previous theft ... that this time instead of sleeping through their entry to the bedroom [the victim] woke and then instead of [the accused] running she was attacked and strangled to death". He said: "The Crown is not in a position to prove murderous intent, but the Crown says that the acts of placing the hands around the neck and squeezing was without doubt a dangerous act". Strangulation, he said, was the cause of death. He submitted that "the circumstances of this offence are so serious that the sentencing process involves a very serious disposition and that even giving full weight to the prospects of rehabilitation, this matter must be dealt with as a very serious example of the crime of manslaughter". According to the transcript, he said that detention in a youth training centre was not an appropriate possibility because that could only occur if the sentences were for no more than three years, and such sentences would involve "a terrible error". The transcript is probably inaccurate; counsel, we were told, probably said "appellable error".
Counsel for the appellants then addressed. They emphasised the youth of their clients and other circumstances personal to the appellants upon which they called evidence in support of their submissions. They put arguments on the question of general and specific deterrence. Pre-sentence reports were tendered. Counsel for the prosecution then replied, addressing mainly the matter of deterrence. The proceedings were then adjourned.
Nothing was said by any counsel on 11 October 2001 about any matter relevant to the ground of appeal in this Court other than what is referred to above.
There was a further hearing on 25 February 2002 when the prosecution tendered evidence of certain conduct on the part of the appellants said to demonstrate lack of remorse. There was argument about the admissibility of the material. It is not relevant to the present appeal.
The sentences
"Your plea of guilty to manslaughter means that each of you has now admitted that you killed [the victim] by an unlawful act which was dangerous. My inability to discern any distinction in the role played by each of you with the necessary degree of satisfaction in circumstances where there may or may not have been such a distinction means that for sentencing purposes you must each be treated as bearing the culpability of no more than that of an aider and abettor, each of the other. It is on this basis that you will be sentenced." (emphasis added)
The appeals to the Court of Appeal
"17. On 24 July 01 both the respondents were arraigned on one count of manslaughter. At that time the prosecutor indicated to his Honour that the respondents were to be sentenced as aiders and abettors as the Crown was not in a position to point to who was the principal offender. Reliance was placed on R v Bannon and Calder ...
His Honour acknowledged that each of the respondents was to be sentenced as bearing the culpability of no more than that of an aider and abetter, each of the other ...
When called upon to sentence for unlawful and dangerous act manslaughter, where no specific intent is alleged, the distinction between an aider and abetter and a principal is not as significant as it might be for crimes of specific intent. In a manslaughter of this type, little if any disparity between principal and aider and abettor was justified, it is, in effect, a distinction without a difference. In essence, the distinction was drawn as indicating no more that [sic] the Crown was unable to establish who had actually caused the death. His Honour fell into error by allowing too great a reduction in sentence on the basis of aiding and abetting."
It is par 19 that is fastened upon by the appellants for the purposes of their ground of appeal in this Court. It is, therefore, instructive to note how it was dealt with in the Court of Appeal.
The written submissions to the Court of Appeal filed on behalf of GAS did not specifically address par 19 of the Director's submissions. The written submissions filed on behalf of SJK responded to that paragraph as follows:
"34. The Crown ... requested the learned sentencing judge to sentence the respondents '... in accordance with the judgment of the Court of Criminal Appeal in R v Bannon and Calder. Each of the accused falls to be sentenced as an aider and abettor, not a principal in the first degree.'
In paragraph 19 of the Outline of Appellant's Submissions, it is submitted, in effect, that in a case of this kind the distinction between aider and abettor and principal is not as significant as it might be for crimes of specific intent. The learned sentencing judge is said to have fallen into error by allowing too great a reduction on the basis that the respondents were to be sentenced as aiders and abettors. That submission is not connected to authority.
The basis on which the Respondents [sic] was referred to twice by the learned Crown Prosecutor during the proceedings (24 July 2001 at page 19 and 11 October 2001 at page 12). At no stage in the proceedings did the Crown submit to the learned sentencing judge that the distinction between aiders and abettors and a principal was a 'distinction without a difference'. It was implicit in the submissions of Mr Hicks SC (24 July 2001 at page 19) that there is a difference:
'... the Crown is unable to say, and never would be able to say, in this case who killed [the victim]. Accordingly, the proper way for your Honour to sentence both accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were aiders and abettors, that is, the Crown cannot point to who was the principal offender' [added emphasis in appellant's submission].
'We think that an aider and abettor in such circumstances should have imposed on him or her a lesser penalty than that imposed on the principal actor. Of course, if the role of each offender cannot be determined then it is proper that each receive the same punishment (assuming - as is this case - that there are no factors personal to the offender that require one to be dealt with differently from the other)'.
In his reasons for sentence, the learned sentencing judge … notes that by Statute [Crimes Act 1958 (Vic) s 323] the respondent is liable to be punished as a principal offender. He also states the regard he has had to 'current sentencing practices', which can be assumed to include the passage from Bannon and Calder (above), requiring that 'an aider and abettor … should have imposed upon him or her a lesser penalty than that which would be imposed upon a principal offender'. His Honour states that he has taken account of that principle in the sentence.
In our submission, no error is disclosed."
We were not taken to any transcript, affidavit or admission establishing that the matter was taken any further in oral argument. It is to be noted that the Director's argument about the significance of Bannon and Calder, and the response of SJK, were treated as going to the merits of the contention that the sentences imposed by Bongiorno J were manifestly inadequate. It was not put to the Court of Appeal that it was not entitled, or obliged, to deal with the argument. Nor was it submitted to the Court of Appeal that, even if it considered the sentences to be manifestly inadequate, or that Bongiorno J had fallen into specific error in relation to his understanding of Bannon and Calder, it should nevertheless dismiss the prosecution appeals in the exercise of its discretion. That possibility was not adverted to in the reasons of the Court of Appeal, because no such possibility was raised in argument. In the reasons of the Court of Appeal, as has been mentioned, the general principles relevant to prosecution appeals against sentence were stated, quoting from R v Clarke6. One of those principles was stated as follows: "An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance". The Court of Appeal was aware of the existence of the discretion, but it was not invited in argument to consider exercising it, and it made no further reference to the topic.
The Court of Appeal, for reasons explained in considerable detail, upheld all of the Director's submissions. The Court accepted that the sentences were manifestly inadequate, that insufficient weight had been given to the objective gravity of the killing and to the aggravating circumstances in which it occurred, and that undue weight had been given to the youth of the offenders and to what were regarded as their prospects of rehabilitation. Those were the substantial grounds upon which the Director's appeal was allowed and the re-sentencing proceeded.
Aiding and abetting manslaughter
"There are ... offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. ... The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it." (emphasis added)
The decision in Bannon and Calder
The argument put in pars 17 to 19 of the Director's written submissions, and answered in pars 34 to 39 of the written submission filed on behalf of SJK, was dealt with by the Court of Appeal, but it was not central to its reasons for allowing the appeal. Those reasons were as stated above. Two of the members of the Court of Appeal in the present case had been parties to the judgment in Bannon and Calder. The Court of Appeal rejected the contention that Bannon and Calder stands for any principle that could justify the leniency of the sentences imposed by Bongiorno J. They were right to do so.
What Bannon and Calder had in common with the present case was that two people were convicted of unlawful homicide (there, murder), in circumstances where the evidence did not establish which of them killed the victims. Unlike the present appellants, they were both sentenced to the maximum term of imprisonment (life). The Court of Criminal Appeal said8:
"Nevertheless [the sentencing judge's] very inability to discern any distinction in the role played by each of the applicants in a case where admittedly there was a distinction must mean that for sentencing purposes each applicant had to be treated as bearing the culpability of no more than that of an aider and abettor. This proposition rests upon the premise, which we think in the circumstances of this case to be correct, that such culpability is less than that which would attach to a principal actor. But the judge manifestly did not so sentence the applicants since he imposed on both the maximum possible penalty, namely that of life imprisonment.
On a view which the judge in effect said was open to be taken, one of the offenders with little or no cause for so doing gained possession of a knife and launched a homicidal attack ...
We think that an aider and abettor in such circumstances should have imposed upon him or her a lesser penalty than that imposed upon the principal actor ... One had to get less than life imprisonment. It cannot be said which offender. Therefore both must receive such a lesser sentence." (emphasis added)
"The combination of the two propositions, first that each of the offenders had to be sentenced as an aider and abettor and second, that accordingly a lesser penalty was attracted, put to the sentencing judge by the prosecutor may well have influenced his view as to the proper sentences to be imposed in the present case. Before this Court [counsel for the Director] did not attempt to support or justify the application of either of the two propositions."
What counsel for the Director put to the Court of Appeal is set out in pars 17 to 19 of the Director's written submissions quoted above.
The reference to "a lesser penalty" raises an obvious question: less than what, and by what margin? In Bannon and Calder the answer to the first part of the question was: less than the maximum. Here, both appellants were sentenced to much less than the maximum term of imprisonment, and speculation as to what either would have received had he been the principal offender is hardly fruitful. Having regard to the objective circumstances of the manslaughter, and the aiding and abetting, in the present case, the margin of difference could properly be regarded as relatively small. But the real question for the Court of Appeal, as the Court recognized, was the adequacy of the sentences that were imposed on the basis that the appellants were aiders and abettors. Speculation as to what one of them would have received as a principal offender was of marginal significance. In that respect, the Court of Appeal said:
"It is likely, we think, that the learned judge gave too little weight to the gravity of the offences and too much weight to the aspect of rehabilitation of the youthful respondents."
Principles affecting plea agreements
It is in those circumstances that it is now argued that what was done by the prosecution, in the conduct of the appeal to the Court of Appeal, and by the Court of Appeal, was contrary to "the plea agreement reached with the defendants at trial". The only information about any suggested agreement is that which is set out above. In order to understand what might be involved in the concept of agreement, in those circumstances, it is necessary to have regard to certain fundamental principles.
First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person9. The judge has no role to play in that decision. There is no suggestion, in the present case, that the judge was in any way a party to the "plea agreement" referred to. The appellants, through their counsel, evidently indicated to the prosecutor that, if a charge of manslaughter were to be substituted for the charge of murder, they would plead guilty, and the prosecutor filed a new presentment on that understanding. However, the charging of the appellants was a matter for the prosecutor.
Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely and, in this case, it was made with the benefit of legal advice. Once again, the judge is not, and in this case was not, involved in the decision. Such a decision is not made with any foreknowledge of the sentence that will be imposed. No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, but that advice is the responsibility of the accused's legal representatives.
Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed10. For that purpose, the judge must find the relevant facts11. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case12. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor.
(a) that each appellant would plead guilty to manslaughter by an unlawful and dangerous act;
(b) that as the evidence did not permit the role of each appellant to be determined
(i) each appellant was to be sentenced at "the lowest common denominator" as an aider and abettor; and
(ii) accordingly, each appellant should receive a lesser sentence than a principal (which was said to accord with Bannon and Calder);
(c) neither of the appellants would attribute blame to the other; and
(d) neither appellant would submit that a youth training centre sentence was appropriate.
Nothing that occurred before Bongiorno J or the Court of Appeal was inconsistent with any aspect of that "agreement" (understood in the light of the fundamental principles stated above) except for what is said to have occurred in relation to (b)(ii). What actually occurred in that respect is set out above.
The subject matter of (b)(ii) is a question of sentencing principle. It was not within the capacity of the parties to agree that each accused would receive a lesser sentence than a principal, whatever exactly that might mean. And what exactly it means is far from clear. At the most, if there were an agreement of the kind asserted, it would be a common understanding as to a submission of law that would be made to the sentencing judge. Moreover, it was a submission about the effect of a decision of the Court of Criminal Appeal which the judge would have to read and interpret for himself.
The information available to this Court as to (b)(ii) has already been stated. It discloses no agreement of the kind alleged. As appears from the written submissions filed on behalf of SJK in the Court of Appeal, what was claimed was that it was "implicit in the submissions" of counsel for the prosecution on 24 July 2001 that there was necessarily a difference (of some unspecified degree) between what each accused should receive by way of sentence as an aider and abettor and the sentence he would receive if he had been a principal offender. The implication is said to arise from the reference by counsel on 24 July 2001 to Bannon and Calder. The substantive submissions on sentence were made on 11 October 2001. On that day, counsel for the prosecution, as has earlier been noted, submitted that the accused fell to be sentenced in accordance with Bannon and Calder, that is to say, as aiders and abettors, not as principals in the first degree. The prosecution has never resiled from the submission. The argument is as to what follows from it in the circumstances of this case.
The substance of the complaint is that what was submitted to the Court of Appeal differed in a material respect from what was implicit in what was said on 24 July 2001. The written submissions to the Court of Appeal have already been set out. The complaint to this Court is that what was expressly submitted to the Court of Appeal on behalf of the Director on a matter of law is different from what was impliedly submitted to Bongiorno J on the same matter of law. The relevant matter is the significance which a sentencing judge, in the exercise of his or her discretion, is either entitled or bound to attach to the fact that an offender is an aider and abettor, not a principal in the first degree. The Court of Appeal said two things about that. First, the significance depends on the facts and circumstances of the particular case, and, although as a generalization it may be correct to say that aiders and abettors are less culpable than principal offenders, that is not an absolute rule, and even where there is a difference, it may not be substantial. Secondly, in the facts and circumstances of the present case, the difference was not sufficiently substantial to explain or justify the sentences that had been imposed at first instance.
The agreement relied upon by the appellants
The particular aspect of the alleged "plea agreement" upon which the appellants now found their argument related to a matter of law and sentencing principle, and was inherently vague and uncertain. It was an inappropriate subject for any kind of agreement between counsel. It related, in substance, to the significance for a sentencing judge's discretion of a circumstance that varies in importance from case to case. The significance was said to follow from some rather circumscribed judicial remarks in a decision of the Court of Criminal Appeal which the sentencing judge was obliged to consider and interpret for himself.
If the appellants had any legitimate complaint about what occurred, and we do not consider that they did, the appropriate way to ventilate that complaint was to submit to the Court of Appeal that, in accordance with one of the principles stated in R v Clarke (and recognized in this Court by McHugh J in Everett v The Queen13), the Court should exercise a discretion to dismiss the appeal on the ground that the prosecution led the sentencing judge into a material and decisive error. It is not necessary for present purposes to examine the precise ambit of such a discretion, for two reasons. First, no such submission was made. If such a submission had been made, it may have been necessary to take evidence about the terms of the agreement from which counsel for the prosecution were said to have departed. The matter could hardly have been left in the vague condition reflected in what appears above. Secondly, consistently with the way the Court of Appeal decided the case, such an argument would not have succeeded. The Court of Appeal held that the manifest inadequacy of the sentences resulted from a failure to give sufficient weight to the objective circumstances, and an over-emphasis of the subjective circumstances. It was not some implied submission by counsel, on 24 July 2001, about the effect of Bannon and Calder, that accounted for the sentencing judge's error. It was his failure to appreciate, and give sufficient weight to, exactly what the appellants were admitting, in the circumstances of the case, by their pleas of guilty.
If, as the appellants submitted, there was an agreement that the prosecutor would submit to Bongiorno J that Bannon and Calder required a particular kind of outcome, it was not suggested that the prosecutor's submissions to Bongiorno J departed from what had been agreed. Further, if there was an agreement of the kind alleged and, contrary to what is said above, it was an agreement to which some definite operation could be given as between the parties to it, neither its making nor its substance precluded the Director from appealing against the sentences imposed on the appellants on the ground that those sentences were manifestly inadequate. If, as the appellants submitted, the Director's submissions on the appeal to the Court of Appeal departed in some respect from what was agreed (and for the reasons given earlier that premise was not established) that departure did not affect the outcome of the Director's appeal to the Court of Appeal.
General observations
It is as well to add some general observations about the way in which the dealings between counsel for the prosecution and counsel for an accused person, on subjects which may later be said to have been relevant to the decision of the accused to plead guilty, should be recorded. In most cases it will be desirable to reduce to writing any agreement that is reached in such discussions. Sometimes, if there is a transcript of argument, it will be sufficient if an agreed statement is made in court and recorded in the transcript as an agreed statement of the position reached. In most cases, however, it will be better to record the agreement in writing and ensure that both prosecution and defence have a copy of that writing before it is acted upon. There may be cases where neither of these courses will be desirable, or, perhaps, possible, but it is to be expected that they would be rare.
Although the recording of the agreement is most obviously necessary in cases where some agreement is reached about matters of fact that will be put to the court as agreed facts or circumstances bearing upon questions of sentence, the desirability of recording what is agreed is not confined to those cases. It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty.
Recording what is agreed, in an agreed form of words, should reduce the scope for misunderstanding what is to be, or has been, agreed. It should serve to focus the minds of counsel, and the parties, upon the application of the three fundamental principles which are set out earlier in these reasons and describe the respective responsibilities of the prosecutor, the accused person and the sentencing judge. Most importantly, it enables counsel for both sides to be clear about the instructions to be obtained from their respective clients and the matters about which, and basis on which, counsel should tender advice to their respective clients. There should then be far less room for subsequent debate about the basis on which an accused person chose to enter a plea of guilty.
Orders
Director of Public Prosecutions v SJK; Director of Public Prosecutions v GAS [2002] VSCA 131. ↩
R v SJK and GAS [2002] VSC 94. ↩
Unreported, 21 September 1993 (Phillips CJ, Crockett and Vincent JJ). ↩
[1996] 2 VR 520. ↩
R v Bannon and Calder, Victorian Court of Criminal Appeal, 21 September 1993 at 37. ↩
[1996] 2 VR 520 at 522. ↩
(1985) 156 CLR 473 at 506. ↩
R v Bannon and Calder, Victorian Court of Criminal Appeal, 21 September 1993 at 36-37. ↩
Barton v The Queen (1980) 147 CLR 75 at 94-95; Maxwell v The Queen (1996) 184 CLR 501 at 534; Cheung v The Queen (2001) 209 CLR 1 at 22 [47]. ↩
R v Olbrich (1999) 199 CLR 270. ↩
Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]. ↩
R v Olbrich (1999) 199 CLR 270 at 278 [15]. ↩
GAS
R [2004] HCA 22; 217 CLR 198; 206 ALR 116; 78 ALJR 786
(1985) 156 CLR 473
(1980) 147 CLR 75
(1996) 184 CLR 501
(2001) 209 CLR 1
(1999) 199 CLR 270
(1994) 181 CLR 295
In each matter, appeal dismissed.
Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.
Fifthly, an erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law. If a sentencing judge has been led into error by an erroneous legal submission by counsel, that may be a matter to be taken into account in the application of the statutory provisions and principles which govern the exercise of the appeal court's jurisdiction.
The "plea agreement" alleged in the ground of appeal of each appellant in this Court was particularised as follows:
The matter was argued and decided in the Court of Appeal by addressing the merits of the proposition that, as aiders and abettors, the culpability of the appellants was of a relatively low order; low enough to explain the sentences that were imposed. That argument was considered and rejected by the Court of Appeal. No error in the reasoning of the Court of Appeal in that respect has been shown. The Court of Appeal concluded that the basic error made by Bongiorno J was that he gave too little weight to the objective circumstances of the killing, and too much weight to the subjective circumstances of the offenders.
(1994) 181 CLR 295 at 307. ↩