Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Plea of guilty, contrition and co-operation.

Solicitors for applicant: Legal Aid Commission of Tasmania

1 Application for leave to appeal against sentence granted.

2 Appeal allowed.

3 Sentence of imprisonment for four years and six months

quashed and sentence of imprisonment for four years

commencing on 4 October 1994 substituted therefor.

GREEN CJ This is an application for leave to appeal against a sentence of imprisonment for four years and six months imposed upon the applicant in respect of his convictions for counts of burglary and stealing. The salient facts were stated by the learned trial judge as follows:

"The accused has pleaded guilty to 19 counts of burglary, 18

counts of stealing and one count of motor vehicle stealing.

The crimes were committed in the course of what may be

described as a spree of burglaries and thefts from premises

entered over a period of about 2 months from August to

October 1994. The accused committed these crimes whilst in

the company of others. His co-offenders have not been

sentenced.

The total of the cash stolen and the value of the other

property stolen was almost $85,000 of which only a little

over a third has been recovered. Most of the premises

entered were private residences. A wide variety of property

was stolen, including firearms."

2. Two of the burglaries were not associated with any acts of stealing and one of the counts of burglary was associated with two acts of stealing. It can be seen then that leaving aside the motor vehicle stealing there were nineteen criminal transactions seventeen of which resulted in the theft of property. After stating the facts the learned trial judge made the following comments:

"The accused is aged 29 and has prior convictions for similar

offences as well as for other crimes, including armed robbery

in 1989 and attempted armed robbery in 1991. All those

convictions occurred in Melbourne. On 2 May 1992 the accused

was released on parole. He came to Tasmania in 1993, having

absconded from bail granted to him in Melbourne in respect of

charges of burglary and theft. Those charges have not been

dealt with.

In mitigation it has been put that many of the accused's

earlier offences were committed in an endeavour to obtain

money to finance his heroin addiction. Whilst there was some

suggestion that the accused may still use some drugs, it was

not suggested that the present crimes are capable of being

explained on the basis that he sought money for drugs or that

he was addicted to them.

I am told that the accused is remorseful and there is some

evidence to support that. He has pleaded guilty at an early

stage. He was extremely co-operative with police officers

after his apprehension making full admissions and

volunteering that he had committed several burglaries which

had not been reported to the police. I consider it

appropriate to ameliorate the sentence which otherwise would

be appropriate by reason of these matters.

That is not to say that these crimes ought not to be

punished severely. The accused has not learnt from his

previous sentences of imprisonment although it is clear that

he is able to earn an honest living as is evidenced by his

past periods of employment including a recent period as the

assistant manager of an hotel. The accused claims that he

needed money yet he had not bothered to apply for

unemployment benefits after he lost his last job when the

employer went out of business. Largely I must assume that

the accused was motivated by greed with no consideration of

the rights of others.

The learned Director of Public Prosecutions put before me

statistical material concerning the incidence of burglaries

in Tasmania over the last few years. No issue was taken with

that material. Statistics maintained by the police indicate

that during the year ended 30 June 1991 there were fewer than

700 reported burglaries of residences per 100,000 population

in Tasmania. Since then the rate has increased steadily each

year. During the year ended 30 June 1994 there were more

than 1300 reported burglaries of residences per 100,000

population. Burglaries of business premises increased at a

somewhat lesser rate. During the year ended 30 June 1994 no

fewer than 13,180 burglaries were reported to the police.

Statistics maintained in the insurance industry do not show

the same rate of increase although that may be explained by

the underwriting policies of insurers becoming more

conservative in response to what are to be perceived to be

high risk areas. Nevertheless the cost per burglary claim

has been steadily escalating.

It may properly be said that burglary with intent to steal

and stealing from burgled premises are crimes which are

extremely prevalent and that past sentences have not operated

as a sufficient deterrent to potential offenders. The

community is entitled to expect some measure of support in an

endeavour to lessen the frequency with which the privacy of

homes is invaded. The whole community suffers by reason of

the increases in insurance premiums required to cover ever

increasing risks. The sentence to be imposed upon the

accused is one which contains a substantial element of

general deterrence.

I consider that a sentence of 5 years' imprisonment is

appropriate but I will reduce that by 6 months in recognition

of the co-operation which the accused extended to police and

in particular of the fact that some of the crimes to which he

has pleaded guilty would not have been solved were it not for

the fact that he volunteered his involvement.

On the indictment the accused is sentenced to imprisonment

for 4 years and 6 months. That sentence will date from 4

October 1994."

3. The grounds of this application are as follows:

"1 The sentence of four years six months imprisonment imposed

by the learned Trial Judge was manifestly excessive.

2 The learned Trial Judge failed to give the appellant

sufficient discount from what otherwise would have been an

appropriate sentence for the plea(s) of guilty entered by the

applicant in the circumstances of this case.

3 The learned Trial Judge erred in law in imposing a

sentence greater than the current range of sentences for

crimes of the type committed by the appellant without the

Court providing warning that the range of sentences for such

crimes was to increase."

4. The sentence imposed upon this applicant was significantly longer than the upper limit of the range of sentences usually imposed in this Court for multiple counts of burglary and stealing. See Warner Sentencing in Tasmania 12.810-811. This Court has rejected a rigid "tariff" approach to sentencing generally: R v Lyons A66/1993 ((1993) 69 A Crim R 307 ); R v Dowie [1989] TASSC 44; (1989) Tas R 167. That policy is based inter alia upon the fundamental principle that the court is not permitted to unduly restrict the ambit of its sentencing discretion. But an equally fundamental principle is that like cases should be treated alike and the court has also held that something like a tariff approach at least insofar as it indicates a "fairly standardised upper limit of punishment" is usually appropriate in the case of crimes such as burglary and stealing: per Neasey J in Kearnan v R 80/1968 at 16 and 17 in a passage adopted by Zeeman J in R v Lyons (supra) at 2. See also to the same effect the remarks of Wright J in R v Dowie (supra) at 187 cited with approval by Cox J in R v Lyons (supra) at 4.

5. In this case the learned trial judge did not find that there were any especially aggravating circumstances associated with the commission of these crimes. However the applicant's record of prior convictions was such as to justify a sentence in the upper end of the range of appropriate sentences. But an accused person's prior record alone "cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences" per Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.

6. The prevalence of the crimes of which the applicant was convicted was a relevant factor. However although the learned trial judge's findings about the statistical material which was before him have not been challenged it should be noted that the five year period which that material covered was, for the purpose of detecting significant statistical trends, very short. Further, in the case of two of the categories which were the subject of the statistics the figures did not show an increase for each year of the five year period, the number of burglaries relating to dwellings and the number of burglaries relating to "shops ... etc" actually decreasing in each of, respectively, the first two and the first three years of that period. Only in the case of burglaries relating to "offices ... etc" was there an increase in each year of that period. In addition two factors have to be kept in mind in assessing the significance of the element of general deterrence which is the factor which justifies the use of such statistical materials. First, general deterrence is only one of the factors which are relevant to sentence and must not be permitted to dominate the exercise of the sentencing discretion to the exclusion of all the other factors which the law requires a judge to take into account. Secondly, although a court is entitled to proceed on the basis that there is a general relationship between the incidence of crime and the severity of sentences, there is no justification for the view that there exists a direct linear relationship between the incidence of a particular crime and the severity of the sentences which are imposed in respect of it such that the imposition of heavier sentences in respect of a particular crime will automatically result in a decrease in the incidence of that crime.

7. The appellant's remorse, the fact that he pleaded guilty and the fact that he volunteered information which would not otherwise have been known to the police were mitigating factors. However I do not accept the submissions made by counsel for the applicant that this Court should endorse a formalised approach whereby considerations of this kind should be reflected by applying a nominated percentage "discount" to the "head sentence". Considerations of this kind are no different in kind from and should be treated in the same way as all the other considerations which are relevant to the exercise of the sentencing discretion. It is not regarded as appropriate to reflect the other aggravating and mitigating circumstances relevant to sentence in a list of premiums or discounts each expressed as a percentage and I can see no reason why mitigating circumstances arising out of remorse, a plea of guilty or assistance given to the police should be treated differently.

8. In my respectful view in this case there were no circumstances peculiar to this case or other sufficient justification for the imposition of a sentence which was so significantly beyond the range of sentences which are usually imposed for multiple counts of burglaries and stealing. Bearing in mind as well that in this case there were significant mitigating factors present I have reached the conclusion that the sentence was manifestly excessive.

9. I would grant the application, allow the appeal, quash the sentence of four years and six months imposed on the indictment and substitute a sentence of three years commencing on 4 October 1994 therefor.

WRIGHT J On 14 October 1994 the applicant was sentenced to an effective term of four years and six months' imprisonment upon his pleas of guilty to an indictment containing nineteen counts of burglary and eighteen counts of stealing. A complaint for unlawful use of a motor vehicle was dealt with at the same time, pursuant to the Criminal Code, s385A. On the complaint a sentence of six months' imprisonment concurrent with the sentence upon the indictment was imposed.

2. In passing sentence the learned trial judge said:

"The accused has pleaded guilty to 19 counts of burglary, 18

counts of stealing and one count of motor vehicle stealing.

The crimes were committed in the course of what may be

described as a spree of burglaries and thefts from premises

entered over a period of about 2 months from August to

October 1994. The accused committed these crimes whilst in

the company of others. His co-offenders have not been

sentenced.

The total of the cash stolen and the value of the other

property stolen was almost $85,000 of which only a little

over a third has been recovered. Most of the premises

entered were private residences. A wide variety of property

was stolen, including firearms.

"The accused is aged 29 and has prior convictions for similar

offences as well as for other crimes, including armed robbery

in 1989 and attempted armed robbery in 1991. All those

convictions occurred in Melbourne. On 2 May 1992 the accused

was released on parole. He came to Tasmania in 1993, having

absconded from bail granted to him in Melbourne in respect of

charges of burglary and theft. Those charges have not been

dealt with.

In mitigation it has been put that many of the accused's

earlier offences were committed in an endeavour to obtain

money to finance his heroin addiction. Whilst there was some

suggestion that the accused may still use some drugs, it was

not suggested that the present crimes are capable of being

explained on the basis that he sought money for drugs or that

he was addicted to them.

I am told that the accused is remorseful and there is some

evidence to support that. He has pleaded guilty at an early

stage. He was extremely co-operative with police officers

after his apprehension making full admissions and

volunteering that he had committed several burglaries which

had not been reported to the police. I consider it

appropriate to ameliorate the sentence which otherwise would

be appropriate by reason of these matters.

That is not to say that these crimes ought not to be

punished severely. The accused has not learnt from his

previous sentences of imprisonment although it is clear that

he is able to earn an honest living as is evidenced by his

past periods of employment including a recent period as the

assistant manager of an hotel. The accused claims that he

needed money yet he had not bothered to apply for

unemployment benefits after he lost his last job when the

employer went out of business. Largely I must assume that

the accused was motivated by greed with no consideration of

the rights of others.

The learned Director of Public Prosecutions put before me

statistical material concerning the incidence of burglaries

in Tasmania over the last few years. No issue was taken with

that material. Statistics maintained by the police indicate

that during the year ended 30 June 1991 there were fewer than

700 reported burglaries of residences per 100,000 population

in Tasmania. Since then the rate has increased steadily each

year. During the year ended 30 June 1994 there were more

than 1300 reported burglaries of residences per 100,000

population. Burglaries of business premises increased at a

somewhat lesser rate. During the year ended 30 June 1994 no

fewer than 13,180 burglaries were reported to the police.

Statistics maintained in the insurance industry do not show

the same rate of increase although that may be explained by

the underwriting policies of insurers becoming more

conservative in response to what are to be perceived to be

high risk areas. Nevertheless the cost per burglary claim

has been steadily escalating.

It may properly be said that burglary with intent to steal

and stealing from burgled premises are crimes which are

extremely prevalent and that past sentences have not operated

as a sufficient deterrent to potential offenders. The

community is entitled to expect some measure of support in an

endeavour to lessen the frequency with which the privacy of

homes is invaded. The whole community suffers by reason of

the increases in insurance premiums required to cover ever

increasing risks. The sentence to be imposed upon the

accused is one which contains a substantial element of

general deterrence.

I consider that a sentence of 5 years' imprisonment is

appropriate but I will reduce that by 6 months in recognition

of the co-operation which the accused extended to police and

in particular of the fact that some of the crimes to which he

has pleaded guilty would not have been solved were it not for

the fact that he volunteered his involvement.

On the indictment the accused is sentenced to imprisonment

for 4 years and 6 months. That sentence will date from 4

October 1994."

On complaint 11306/1994 the accused is sentenced to 6 months

imprisonment. That sentence will date from 4 October 1994

and will be served concurrently with the other sentence. In

addition the accused is disqualified for holding or obtaining

a driver's licence for a period of 9 months."

3. The grounds upon which the applicant seeks leave to appeal are as follows:

"1 The sentence of four years six months imprisonment imposed

by the learned Trial Judge was manifestly excessive.

2 The learned Trial Judge failed to give the appellant

sufficient discount from what otherwise would have been an

appropriate sentence for the plea(s) of guilty entered by the

applicant in the circumstances of this case.

3 The learned Trial Judge erred in law in imposing a

sentence greater than the current range of sentences for

crimes of the type committed by the appellant without the

Court providing warning that the range of sentences for such

crimes was to increase."

4. It is not claimed that the learned trial judge misapprehended any fact or failed to take account of any relevant fact.

5. Although not a ground of the application for leave to appeal, it was contended that the learned trial judge erred in failing to make positive findings as to the accused's state of mind at the time he was sentenced in that he did not specifically accept or reject the claim that he was genuinely remorseful, or that he co-operated with the police in disclosing offences of which they were previously unaware. This submission can be rejected in limine. The learned trial judge's comments plainly indicate that he accepted the claim made by defence counsel in respect of both these matters. Simply because he did not restate his findings when he discussed the matter of discount later on in his comments does not indicate that he ignored or overlooked these features of the case. Counsel acting for convicted persons would do well to remember the comments made by Muirhead J in R v Davey [1980] FCA 134; (1980) 50 FLR 57 at 65-66 to the effect that (a) a judge's remarks in passing sentence will seldom reveal all matters which have been taken into consideration, and (b) on appeal such remarks should not be reviewed as though they constitute reasons incorporated in a reserved judgment.

6. These views, with which I concur, do not conflict with recent judicial pronouncements as to a judge's duty to make adequate findings and provide reasons sufficient to enable an understanding of the basis of his decision (eg, NRMA v Tatt (1989) 92 ALR 299 - New South Wales Court of Appeal).

7. In my opinion the learned trial judge adequately and appropriately dealt with the facts relevant to the exercise of the sentencing process in which he was involved and the criticisms advanced by counsel for the applicant cannot be sustained.

8. The applicant's principal argument was directed to ground 2 of the application and proceeded on the basis that a detailed analysis of decided cases and learned texts discloses that there are three separate categories of case in which an otherwise appropriate sentence should be discounted where there is a plea of guilty. These categories were said to be as follows:

1 Category 1 low discount (ten to twenty per cent) plea of

guilty without remorse but simply a desire to earn leniency

where the case for conviction is overwhelming.

2 Category 2 medium discount (twenty to thirty per cent)

plea of guilty with remorse where the case is overwhelming.

3 Category 3 high discount ("up to 40%") plea of guilty

with remorse and case not overwhelming.

9. These categories are stated in a more simplified format than they were presented to this Court by counsel but I have done so with a view to illustrating the basic thrust of the applicant's argument.

10. In my opinion it cannot be accepted that the cases relied on by the applicant support any such approach to the sentencing process and, more importantly, none of the cases cited justifies the conclusion that a discount falling within the ranges suggested is appropriate in all, or even a majority of, cases.

11. The most which can be said is that, in general, irrespective of remorse or altruistic purpose, a plea of guilty per se justifies some reduction in an otherwise appropriate sentence. The principal justification for reduction in such circumstances is the saving of time and cost which would otherwise be necessitated by the trial process (see R v Winchester (1992) 58 A Crim R 345, a decision of the New South Wales Court of Criminal Appeal), although, as I pointed out in Dowie v R [1989] TASSC 44; (1989) Tas R 167 at 184, the extent of any discount may vary significantly from case to case depending upon all the relevant circumstances. The New South Wales Court of Criminal Appeal suggests that a "substantial" discount is appropriate for a guilty plea but in my opinion it is unwise, if not undesirable, for the sentencing judge to identify either the "head" sentence or the size of the discount allowed. One reason for this conclusion was well illustrated during the course of the present application when, in dealing with the contention that the sentence was manifestly excessive, counsel for the applicant tended to relate his argument to the "head" sentence of five years rather than the term of imprisonment actually imposed.

12. There is however a far more basic objection to the course proposed to us by counsel. Despite the tendency of some courts to rely upon perceived tariffs and similar criteria to assess an appropriate sentence, and notwithstanding the wise words of Mason J in Lowe's case [1984] HCA 46; (1984) 154 CLR 606 at 610 to the effect that uniformity of sentence in like cases is the ideal towards which sentencing authorities should aspire, there remains the indisputable fact that no two cases are exactly the same. There is always some difference in the age, maturity, background, attitude, record or degree of participation of one offender which will distinguish him from his partners in crime or previous offenders. The modern approach to sentencing requires an individualised evaluation of the offender and his culpability despite the mechanistic processes which are sometimes imposed by well meaning legislatures in a misguided attempt to achieve identical outcomes in superficially comparable cases.

13. To achieve a just result in any case, all relevant mitigatory facts must be considered and weighed in the balance along with the facts, circumstances and features of aggravation (if any) relied on by the prosecution. Included in this process is the fact, if it be a fact, that the offender has pleaded guilty. The weight of that plea may vary greatly in the evaluative process undertaken by the court. It would be clearly wrong, in my view, to assess sentence on the basis of all known facts excluding the plea of guilty, arriving thereby at an "appropriate" sentence and then, as a separate process, to discount that sentence by an identifiable percentage or fraction to produce the final or effective sentence. In my opinion there is no justification for treating the guilty plea in this specialised way. It is a factor deserving weight, but it is not weight which can or should be assessed as a separate secondary process. All mitigating features must be considered but none justifies or requires a specific quantified discount.

14. In the present case, if the learned trial judge erred at all, it was only in identifying the quantum of the discount which he was prepared to allow in producing the end sentence of four years and six months. It follows that insofar as ground 2 of the application claims a specific error by the learned trial judge in failing to allow a greater discount than six months, it should not succeed.

15. Ground 3 alleges that the sentence imposed is (a) out of range and that (b) a warning should have been given before effecting an increase. The latter proposition was expressly rejected by the Court of Criminal Appeal in Devine v R A70/1993 (unreported, available on SCALE) at 4-5 and need not be further discussed.

16. The initial proposition may be conveniently considered in conjunction with ground 1 to which I now turn. The first thing to observe is that this was a case involving many similar offences extending over an appreciable period of time. Repeat offenders should not be encouraged to think that multiple offences will be dealt with more leniently than single offences provided that they are all brought before the court on the one occasion. Criminals should not be encouraged to think that they may as well be "hung for a sheep as a lamb". The only limiting factor which should be seen to operate in such circumstances is the totality principle (see Professor Warner Sentencing in Tasmania (1991) par9.314). In my opinion it is impossible to perceive any general tariff in this State for cases in which multiple offences have been committed.

17. An abiding contempt for the law and the property rights of other citizens may clearly be inferred in systematic or repetitive conduct of the type involved in the present series of offences. This is not a case of a young man with a clean record having become involved for the first time in aberrant dishonest conduct. The applicant has a record of serious offences of violence and dishonesty in the recent past. A sentence imposed upon him in Victoria expired on 6 May 1994. The first of the offences in the present indictment occurred on 3 August 1994, ie, less than three months later. The many criminal enterprises for which he was sentenced by Zeeman J involved his unauthorised entry into and theft from private dwelling houses on a number of separate occasions.

18. Conduct of this kind is always serious whether or not the intruder steals valuable property. The applicant in fact stole property having a considerable overall value and much of it has not been recovered.

19. In Denny v R, A39/1988 at 3, the Court of Criminal Appeal said:

"The applicant engaged knowingly and repeatedly in an

enterprise involving the entry of private dwelling houses and

the removal therefrom of valuables for which there was a

ready market. He did it, according to his record of

interview, because of 'the lure of easy money'. He is not a

youthful offender, but a man of mature years who must have

fully realised the dimensions of the unlawful activities he

chose to engage in. He committed numerous crimes over a

lengthy period of time and he stole goods of very substantial

value. In our view a sentence of three years' imprisonment

was within a sound exercise of the learned trial judge's

sentencing discretion, notwithstanding the absence of

previous convictions and notwithstanding the other matters

put in mitigation."

20. It is unproductive to closely compare individual cases when considering whether a particular sentence is or is not manifestly excessive and I hesitate to do so on this occasion except to point out that although Denny and the present applicant were both aged 29 years at the relevant time, Denny had no prior convictions and the value of the property which he stole was just over half as much as that stolen by the applicant. In my opinion the sentence of four and half years' imprisonment imposed by Zeeman J cannot be characterised as manifestly excessive. It was, in my opinion, entirely appropriate. Consequently the application for leave to appeal against sentence should be dismissed.

21. Since preparing the above reasons I have had the opportunity of reading the draft opinions of the other members of the Court. As the majority view is that the application for leave to appeal should succeed, it is plain that this Court will need to re-sentence the applicant. In my opinion a substituted sentence of four years' imprisonment should be imposed.

SLICER J The applicant was sentenced to a term of imprisonment for four years and six months upon his conviction for crimes of burglary (nineteen counts) and stealing (eighteen counts) committed over a period of two months. The value of property stolen was $85,000 of which one-third was recovered. The applicant, aged 29, has an extensive record of prior convictions including the crimes of armed and attempted armed robbery. The property stolen included firearms.

2. Following his arrest, the offender co-operated with police, admitting to having committed burglaries, a number of which were then unknown to the investigators The learned sentencing judge accepted the co-operation and the early entry of a plea of guilty as ameliorating factors. Having considered material tendered by the Director of Public Prosecutions concerning the increased prevalence of the incidence of burglaries in Tasmania, his Honour considered:

"... that a sentence of 5 years' imprisonment is appropriate

but I will reduce that by 6 months in recognition of the

co-operation which the accused extended to police and in

particular of the fact that some of the crimes to which he

has pleaded guilty would not have been solved were it not for

the fact that he volunteered his involvement."

"1 The sentence of four years six months imprisonment

imposed by the learned Trial Judge was manifestly excessive.

2 The learned Trial Judge failed to give the appellant

(sic) sufficient discount from what otherwise would have been

an appropriate sentence for the plea(s) of guilty entered by

the applicant in the circumstances of this case.

3 The learned Trial Judge erred in law in imposing a

sentence greater than the current range of sentences for

crimes of the type committed by the appellant (sic) without

the Court providing warning that the range of sentences for

such crimes was to increase."

4. At the time of determination of sentence the Court also dealt with a complaint for unlawful use of a motor vehicle pursuant to the Criminal Code, s385A. On the complaint a concurrent sentence of six months' imprisonment was imposed. Although this is not the subject of appeal, it forms part of the totality of the sentence and as such cannot be ignored. By reference to the totality principle the actual sentence imposed is appreciably less than that warranted by a cumulative approach.

5. It should first be observed that the sentence imposed was not a consequence of a single crime. Nineteen separate occasions of criminal conduct were the subject of penalty. In Denny v R A39/1988 the Court of Criminal appeal considered that a sentence of three years' imprisonment imposed following conviction for sixteen counts of burglary and seventeen counts of stealing "... was within a sound exercise of the ... discretion, notwithstanding the absence of previous convictions and notwithstanding the other matters put in mitigation". In that case the offender, aged 29, possessed a commendable work record and had no previous relevant convictions. In addition he had co-operated with police, confessed involvement (including offences not put to him by police) and assisted in the recovery of property. In the present case the offender has an extensive criminal record involving convictions for theft from motor vehicles (five charges), armed robbery (two counts), attempted armed robbery, aggravated burglary and burglary (ten counts). He had previously served sentences of imprisonment. The criminal conduct which is the subject of this appeal occurred after the offender had absconded from bail granted in respect of further charges of burglary and theft. The penalty imposed can be seen to reflect not an increase in the range of penalties but the previous criminal propensity of the offender. In the words of the learned sentencing judge, the offender had "not learnt from his previous sentences of imprisonment".

6. Separate from ground 3 of the notice of appeal, the ground lacks merit. Given the number and professionalism of the crimes committed and the background of the offender, it is difficult to see by what criteria it can be regarded as being manifestly excessive. It could not be said that a sentence of imprisonment of four years and six months was outside the parameters of penalty applicable to a professional and extended course of criminal conduct committed by a person with a significant prior record. PLEA OF GUILTY AS MITIGATING FACTOR

7. The acceptance of a plea of guilty simpliciter as entitling an offender, as of right, to a lesser sentence does not fit comfortably with long standing principles applicable to the sentencing process. That traditional approach is stated by Thomas, Principles of Sentencing, 2 ed 50 in the following terms:

"The principles governing the extent to which a sentencer may

take into account the offender's behaviour during the course

of the proceedings against him are well settled. A plea of

guilty may properly be treated as a mitigating factor,

indicating remorse, and will justify a reduction in the

sentence below the level appropriate to the facts of the

offence; but the defendant who contests the case against him,

while not entitled to that mitigation, may not be penalized

for the manner in which his defence has been conducted by the

imposition of a sentence above the ceiling fixed by the

gravity of the offence."

8. Traditionally the courts have been attracted to a subjective approach in considering the effect of co-operation or early plea. The philosophy accorded with the approach of reconciliation by way of confession and as an indication of the commencement of the process of rehabilitation. The approach also avoided the appearance of the imposition of greater punishment on a person who exercised (without success) the right to require the prosecution to prove its allegation.

9. In logic there are compelling reasons why a plea simpliciter should not be regarded as ameliorating including:

- the plea may be no more than an acceptance of the

inevitable;

- co-operation with authority may be evidence not of remorse

for harm caused and betrayal of self but a form of "damage

control" designed to avoid the consequence of an admission to

more serious crime or in order to attract a sympathetic

response;

- it is difficult to reconcile the imposition of a lesser

sentence on one who pleads guilty than that imposed on a

comparable offender who exercises a right afforded by

society.

10. But the courts have in recent years afforded benefit to the maker of a plea. That process can lead to a perception that failure to plead or co-operate with authority results in greater punishment. In turn, that process may, over time, lead to a distortion of the criminal justice system by placing pressure on long standing adversarial values. A reading of a recent study, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain, McConville, Hodgson, Bridges and Pavlovic, Clarendon Press 1994, is salutary to the view that the system is sufficiently strong to withstand the pressure (see Review of Study, LQR (1995) volIII, 167). Nevertheless the proposition has been accepted by Australian Courts and I am bound to give effect to it.

11. However acceptance by Australian courts of the entry of a plea of guilty as a mitigating factor is not without difficulty. Central to that difficulty is the converse of its effect, namely that the approach penalises those who exercise the right to require the prosecution to prove its case. That contradiction was recognised by the Full Court of South Australia in Harris v R (1967) SASR 316 at 328 and by Cox J in his minority opinion delivered in R v Shannon (1979) 21 SASR 442 at 458-459 when in discussing the effect of different pleas on jointly charged defendants he said:

"However, he is convicted by the jury, and in accordance with

the submission he will get a longer sentence than his

colleague for no other reason than that his colleague pleaded

guilty. He will need a very subtle mind, unusually

sympathetic to the ways of the law, if he is to understand

that he is going to prison for a longer term, not because he

pleaded not guilty, but because he failed to plead guilty."

12. A further difficulty is that the proposition transgresses the principles which appropriately govern the imposition of sanctions. It introduces an element of positive reinforcement of conduct subsequent to the commission of the crime and external to the subjective circumstances of the victim or offender. A person may expect to receive less punishment if there is accommodation provided to the system. That may be a desired aim but it ought to be recognised as such.

13. Nevertheless, there is logic in the approach taken by Wright J in R v Dowie [1989] TASSC 44; (1989) Tas R 167 when he stated at 184:

"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."

14. The difficulty has been in determining the appropriate principle of sentencing to which the mitigating factors of plea and co-operation with authority should be attached. Differing approaches have been taken by different jurisdictions and by judges within those jurisdictions. Questions of the amount of discount, how it is to be assessed and whether it should be expressed in a quantified form depend on the jurisdictional basis adopted. In turn, that question raises a further issue of whether the sentencing process can be regarded as one of "intuitive synthesis" or as an attempt of scientific rationalism.

15. Traditionally the entry of a plea of guilty was accepted as evidence of remorse and its mitigating effect treated accordingly. Harris v R (supra); R v Barber (1976) 14 SASR 388.

16. Increasingly recognition was afforded to a utilitarian approach both by Parliament (Penalties and Sentences Act 1985 (Vic), s5 and Penalties and Sentences Act 1992 (Qld), s13) and by the Courts.

See New South Wales:

R v Ellis (1986) 6 NSWLR 603; R v Cartwright (1989) 17 NSWLR

243; R v Bond (1990) 48 A Crim R 1; Pereira v R (1991) 57 A

Crim R 46; Winchester v R (1992) 58 A Crim R 345;

Northern Territory:

Breed v Pryce (1985) 36 NTR 23;

Queensland:

R v Harman (1989) 1 Qd R 414; Marshall v R (1992) 62 A Crim R

162; Corrigan v R (1993) 70 A Crim R 53; R v Bulger (1990) 2

Qd R 559; Thomspon v R (1995) 76 A Crim R 75.

South Australia:

R v Shannon (1979) 21 SASR 442; R v Harris and Simmonds

[1992] SASC 3624; (1992) 59 SASR 300;

Victoria:

Edwards v R (1993) 67 A Crim R 539; Gray v R [1976] VicRp 16; (1976) VR 225;

Morton v R [1986] VicRp 82; (1986) 23 A Crim R 433; De Sylva (1988) 33 A Crim

R 44; Giakis and Others v R [1988] VicRp 88; (1988) 33 A Crim R 22; Smith v R

(1988) 33 A Crim R 95;

Western Australia:

Doyle v R (1994) 71 A Crim R 360.

17. But the basis of acceptance differs. See New South Wales Court of Criminal Appeal, Kirby J, in Bond v R (supra) at 6:

"... there is a strong argument of policy for reflecting in

the sentencing policy laid down by this Court, an appropriate

measure of allowance for the fact that an accused person has

pleaded guilty. Such pleas may save enormous public expense.

They reduce the congestion of the lists. They permit the

courts to attend more speedily and efficiently to those cases

which are contested. They allow police, prosecutors and many

others to devote their time and energies to other cases where

there may be proper and meritorious defences."

"However, it does not appear to me to be the case that

whenever an applicant confesses his guilt and facilitates the

establishment by the police of the details of the particular

crime with which he is charged, that he must receive a

discount off his sentence over and above that attracted by

his plea of guilty and expressions of remorse. The plea of

guilty itself attracts some measure of leniency, both as

evidence of genuine contrition and because of the saving to

the community which it represents by the avoidance of the

need for a trial. A further discount may be appropriate if

it can reasonably be seen that the guilt of the offender

could not have been established but for his own co-operation

and admissions ...".

1 Strength of case determines effect given to plea.

If the plea is no more than an acceptance of the inevitable

then the mitigatory effect is significantly lessened (R v

Ellis (supra); R v Gray (supra)).

2 A plea simpliciter ought not necessarily have effect

(Schumacher (1981) 3 A Crim R 441).

3 The court is obliged to take a plea into account (Smith v

R (1988) 33 A Crim R 97).

4 Public interest is dependent upon quality and

effectiveness of co-operation (Cartwright v R (supra)).

5 Recognition should be afforded administrative and social

efficiency (R v Bulger (supra); Bond (supra)).

20. The adoption of any of the first three approaches results in a subjective analysis of material intrinsic to the case under consideration. It forms part of the traditional "instinctive synthesis" methodology followed by the courts.

21. The latter two involve consideration external to the particular circumstances of the case. The assessment of mitigating effect is dependent on the value of the information proffered, the economic savings afforded the community and like matters.

22. Whilst I prefer the reasoning of the minority opinion in Shannon, I accept that Australian courts have adopted in varying forms a utilitarian approach. But it should be recognised that the factor is one which differs from the historical basis of determination of penalty. It should be seen as an expression of public policy extending beyond the particular case under consideration. As the English Court of Appeal bluntly stated in R v James and Sharman (1923) 9 Cr App R 142 at 143:

"He deserves the term of seven years imposed, but the Court

reduces it to three, for he betrayed the thieves; it is

expedient that they should be persuaded not to trust one

another, that there should not be 'honour among thieves.'"

23. The adoption of the social utilitarian rationale is preferred because it is difficult to reconcile the acceptance of plea with the existing principles determining punishment. If that be correct, then it should be recognised and applied as a separate matter extrinsic to the subjective factors arising from the circumstances of the case itself.

24. It is not a comfortable rationale but avoids the disparities occasioned by the use of a mixed model. The effect is:

- A plea of guilty is, without more, a matter going to the

mitigation of penalty.

- The quality of the mitigating effect is to be assessed

dependent upon:

(i) the degree of psychological trauma to potential

witnesses avoided or lessened;

(ii) the nature and length of the trial which otherwise is

required;

(iii) the quality of the evidence available to the

prosecution.

25. The appellant contended that the amount of discount could be determined by reference to three categories, namely:

low discount - plea without remorse, case overwhelming,

medium discount - plea with remorse, case overwhelming,

high discount - plea with remorse, case not overwhelming

and each category comprised four identifiable factors which

could be applied to determine the basis of the plea:

- desire to earn leniency;

- desire to assist justice process;

- intention to avoid trauma of witness having to give

evidence;

- effect of assistance to "justice process" by the conviction

of others.

26. Two issues are raised by this approach. The first concerns the question of whether the sentencing process is a "scientific" or "intuitive" one. The "intuitive synthesis" model has been consistently applied by the Victorian courts which have rejected a "two tiered" approach to the determination of penalty:

"... ultimately every sentence imposed represents the

sentencing judge's instinctive synthesis of all the various

aspects involved in the punitive process. Moreover, in our

view, it is profitless (as it was thought to be in Kane's

Case) to attempt to allot to the various considerations their

proper part in the assessment of the particular punishments

presently under examination ...

We are aware that such a conclusion rests upon what is

essentially a subjective judgment largely intuitively reached

by an appellate judge as to what punishment is appropriate."

(R v Williscroft and Ors [1975] VicRp 27; (1975) VR 292 at 300.)

27. That approach was followed in Young Dickenson and West v R [1990] VicRp 84; (1990) 45 A Crim R 147 and by Crockett J in R v Nagy (1992) 1 VR 636.

28. The effect of the "intuitive synthesis" method is that a penalty is determined by an assimilation of all the relevant factors, the exercise of a judgment and the pronouncement of a conclusion. The method does not require that the weighting of each factor be quantified and stated. The "scientific" approach requires a systematic allocation of factors and their weighting in accordance with defined criteria with the conclusion represented as the sum of the components. The method has been attempted in parts of the United States. (See An Act relating to crimes, etc, (Minnesota) ch 723-SF No 65).

29. As the Law Reform Commission stated in its Report No 44 on Sentencing at 98:

"Attempts to achieve consistency of approach have included

prescribing the use of matrices or grids, as in the scheme

adopted in Minnesota. An Act relating to crimes, etc,

(Minnesota) ch 723-SF No 65: the grid is reproduced in ALRC

DP 30 App A. Under that scheme, a relatively narrow

sentencing range in figures, usually months, for a particular

offence is prescribed. Once the fact of the offence and the

offender's criminal record are known, the choice of penalty

must be made from that range or the court must give reasons

for departing from the range. In effect, the fact of the

offence and the criminal record are the only significant

relevant matters to sentencing under the Minnesota scheme.

The Commission does not support the introduction of such a

scheme in Australia. It would introduce an undesirable

element of rigidity into sentencing."

30. Fox and Freiberg, Sentencing State and Federal Law in Victoria, Ch11.101, refer to an English study (Shapland J, Between Conviction and Sentence, Routledge and Kegan 1981) in which some 229 factors acknowledged by the courts to be mitigating were identified. In a similar study of Victorian Magistrates' Courts by Douglas (Occasional Monograph No 1, Latrobe University 1980) some 292 factors were discerned. It is impossible to allocate to each relevant factor a mathematical value and from that, extrapolate a sum which determines the appropriate penalty. Despite the limitations (including apparent inconsistency and the difficulty caused to an aggrieved person attempting to challenge the internal structure of the sentence) I accept that the "intuitive model" is the only feasible method available to a sentencing tribunal. It follows that whilst the categories advanced on behalf of the appellant are useful, they do not permit a conclusion that the discount actually given was inadequate.

31. Acknowledging the limitation, I now turn to consider the ground of appeal. The plea entered by the appellant had saved considerable expense associated with a trial. Significance should be attached to this. But that significance is lessened given that his confession made to the investigating authorities provided the prosecution with a strong case against him. The discounted sentence afforded by the learned sentencing judge was, in my opinion, sufficient recognition of the plea. But the plea raised an additional factor recognised by the learned sentencing judge. The appellant, in his confession, had accepted responsibility for crimes which were then not known to the authorities. Without the co-operation it would have been difficult to have achieved a conviction at all. The discount afforded did not, in my respectful opinion, sufficiently reflect the value of the plea and the assistance provided to the authorities. The reduction of the sentence by a period of six months, by reference to the commencing figure of five years, does not constitute a significant amelioration of penalty. It may be sufficient recognition of the plea simpliciter but not to the combined effect of plea and assistance to authority. One could turn the calculation around. If significant regard is had to the entry of plea and assistance to authority, then the original figure decided as the starting point would exceed five years and as such could be regarded as outside the parameters of sentence appropriate to the crimes of burglary and stealing.

33. The learned sentencing judge stated the amount of discount which he afforded the mitigating factors and considered:

"... that a sentence of 5 years' imprisonment is appropriate

but I will reduce that by 6 months in recognition of the

co-operation which the accused extended to police and in

particular of the fact that some of the crimes to which he

has pleaded guilty would not have been solved were it not for

the fact that he volunteered his involvement."

34. The pronouncement of the amount of discount is not the subject of the appeal. Nevertheless, the desirability of the practice was canvassed during the course of argument. The primary objection to the practices is that it gives rise to the "two tier process" criticised by Crockett J in R v Nagy (supra). A second reason for avoidance of pronouncement is that it raises an expectation that a plea of guilty will result in a uniform discount. A review of the commentaries on sentences imposed by English courts shows that the commentators make repeated reference to a twenty per cent reduction because of plea. A reading of the cases subjected to commentary shows that in many cases the courts did not refer to the discount in percentage terms. The commentaries simply expressed the reduction of sentences in cases of successful appeals in percentage terms. However, in King v R (1986) 82 Cr App R 120 the English Court of Appeal, in dealing with a case involving co-operation with authority, stated at 123:

"Consequently, an expectation of some substantial mitigation

of what would otherwise be the proper sentence is required in

order to produce the desired result, namely the information.

The amount of that mitigation, it seems to us, will vary, as

Mr Pollard submitted to us, from about one-half to two-thirds

reduction according to the circumstances ...".

35. Yet when an Appellate Court resentences following a successful appeal, it is commencing the process afresh. It is not necessarily stating that one factor accounts for the identifiable reduction.

36. In favour of the identification of the amount of discount are equally compelling reasons. The primary one is that the statement permits an analysis of the extent to which the mitigating factor was afforded. This permits an aggrieved party the opportunity to challenge the framework of the sentence.

37. In circumstances where the entry of plea can be regarded as a mitigating factor then it should be necessary to state the reasons for that acceptance. Likewise, if minimal effect is afforded the plea, then reasons should be expressed (see Giakis and Others v R (supra) at 27) (although it should be noted that the above case concerned the application of the Penalties and Sentences Act 1985 (Vic), s4).

38. Given the variables which may affect the assessment of the quality of the plea, it is not feasible for a precise identification of the discount to be given. See Cartwright v R (supra), Hunt and Badgery-Parker JJ at 255:

"There is, of course, no fixed tariff in this State against

which a discount for assistance to the authorities can be

judged. Nor do we suggest that there should be, as the

possible variations between individual cases are infinite."

And:

"The requirement (Penalties and Sentences Act 1985 (Vic)

s4(2)) is to state the fact not the amount of the reduction

and although there is nothing to prohibit a court's stating

the amount of the reduction, it will generally be impossible

or misleading to do so unless a similar quantification is

placed upon all the other elements or considerations that

have led to the calculation of the sentence actually imposed.

Indeed it would generally be highly undesirable to do so."

(Morton v R [1986] VicRp 82; (1986) 23 A Crim R 433 at 438.)

39. In general terms I agree with the above approach.

40. Nevertheless, it is not inappropriate in cases where for policy reasons a discount is afforded, for the sentencing court to state what effect was given the plea. The sentence could first be determined in accordance with the "intuitive synthesis" methodology and stated. Then reference could be made only to those factors external to the circumstances of the case, namely degree of social or public utility, their import then identified and their significance expressed. This should permit an analysis as to whether sufficient significance was afforded the plea.

41. Whilst this approach involves a two state process disapproved by the Court of Criminal Appeal in Victoria in R v Young [1990] VicRp 84; (1990) VR 951 there are good reasons for its adoption. In R v Nagy (supra) McGarvie J refers to a number of them:

"The first reason for this is that it has always been open at

common law for a judge in an appropriate case to choose to

exercise the sentencing discretion by selecting the

appropriate sentence before discount, reducing it by the

specified amount of the discount and stating what has been

done. ... It follows, in my opinion, that to decide that it

is not open to a sentencing judge to exercise the sentencing

discretion in a way that generations of common law judges

have recognised as open to them would amount to the

imposition of an impermissible fetter upon the sentencing

discretion of a judge."

42. The second reason advanced by McGarvie J concerned the import of the Crimes Act 1914 (Cth), ss16A and 21E and is not relevant to the case under consideration.

"... based on the decision of the Court of Criminal Appeal of

New South Wales in Gallagher. In that case the court

considered the question whether it was appropriate to

identify the amount by which a sentence was reduced in the

case of an offender who had co-operated with the law

enforcement agencies. The question was considered in

relation to two federal offences of conspiring to import

heroin of not less than a traffickable quantity. Although

the offences occurred before the new sentencing provisions

were inserted into the Crimes Act 1914, it has been held that

the new provisions apply to offences whether committed before

or after the amendments came into operation on 17 July 1990:

R v Paull (1990) 49 A Crim R 142. In Gallagher it was said

by Gleeson CJ, at p 21: 'A judge who extends leniency on the

ground here in question should say that this is being done

and why. However, I am of the view that, subject always to

any relevant statutory requirement, a sentencing judge is

entitled, but not obliged, to give a discrete quantifiable

discount on the ground of assistance to authorities, provided

it is otherwise possible and appropriate to do so. For

reasons earlier stated, there may be many cases in which it

is either impossible or inappropriate to take that course.'

Meagher JA agreed with the Chief Justice. Hunt J in a

separate judgment said, at p 3: '(I)f a separate discount for

assistance to the authorities can be identified, I would

prefer that it be identified. I consider that a preference

for such course to be followed (where possible) is supported

by provisions such as s 21E of the (Cth) Crimes Act 1914.

But I agree with the Chief Justice that, subject to such a

statutory requirement, it still remains a discretionary

matter in each case whether the judge does so in that case.'"

44. Further consideration was given to the question by a differently constituted Court of Criminal Appeal in Mundy, Beaumont and Despot v R (1995) 76 A Crim R 92. In that case Nathan J at 97 did not accept that "the view that a fixed informer discount should be stated reflects the law" but added:

"But that is not to say that a sentencing judge might not

find it relevant in a particular case to recite a percentage

discount so long as it is assigned to the sentencing process

then before the court."

45. An appropriate reason for so doing is that the process affords a party an opportunity of discerning and challenging the basis of the eventual penalty imposed.

46. It follows, in my opinion, that it is not unreasonable to adopt a two stage process. The determination of the initial sentence could be made by reference to the intrinsic characteristics of the case in accordance with the methodology of "intuitive synthesis". The second stage would be by reference to the external factors of social utility and public policy. It would not pay regard to subjective characteristics. Its value determined by questions of public policy could be expressed in quantitative terms.

47. Material was placed before the learned sentencing judge concerning the incidence of burglaries within Tasmania over a number of years. His Honour referred to the material during the course of passing sentence in the following terms:

"Statistics maintained by the police indicate that during the

year ended 30 June 1991 there were fewer than 700 reported

burglaries of residences per 100,000 population in Tasmania.

Since then the rate has increased steadily each year. During

the year ended 30 June 1994 there were more than 1300

reported burglaries of residences per 100,000 population.

Burglaries of business premises increased at a somewhat

lesser rate. During the year ended 30 June 1994 no fewer

than 13,180 burglaries were reported to the police."

48. His Honour further referred to the material which indicated that the cost per burglary has been steadily escalating. In dealing with the factor of prevalence, the learned sentencing judge stated:

"It may properly be said that burglary with intent to steal

and stealing from burgled premises are crimes which are

extremely prevalent and that past sentences have not operated

as a sufficient deterrent to potential offenders. The

community is entitled to expect some measure of support in an

endeavour to lessen the frequency with which the privacy of

homes is invaded. The whole community suffers by reason of

the increases in insurance premiums required to cover ever

increasing risks. The sentence to be imposed upon the

accused is one which contains a substantial element of

general deterrence."

49. The ground of appeal has two components. The first is whether the sentence is "... greater than the current range of sentences for crimes committed by the appellant (sic)". This has been considered together with the ground claiming that the sentence was manifestly excessive. The second concerns the proposition that if increased prevalence is to be a reason for increasing sentences, increases in penalty should be applied incrementally and after due warning.

50. Even if the sentence was at the higher end of the scale, it could not be said to be an abrupt increase rather than one forming part of an upward trend. See Poyner v R (1986) 66 ALR 264; Breed v Pryce (supra).

51. Extreme caution should be exercised in paying regard to statistical information tendered as part of the sentencing process. A general observation was made of the desirability of the practice on the part of counsel appearing on behalf of convicted persons in Franklin v R 82/1991; likewise with material concerning prevalence. Prevalence should be established by reliable data subjected to rigorous analysis. An examination of the figures tendered in the course of the hearing illustrates the problem. Accepting that the rate of residential burglaries for the year ended 30 June 1994 was 1,300 per 100,000, the total number amounts to approximately 6,110. This leaves 7,070 cases of non-residential burglaries. Yet they are said to have increased at a "somewhat lesser rate", whilst accounting for over one-half of all burglaries. The Tasmanian Year Book for 1994 records an increase in property offences from 33,057 in 1991 to 37,653 in 1992. One would need to know whether that apparent dramatic increase was a result of different recording techniques or classifications or more offences being committed by juveniles and the like.

52. Further, the comparable figures for non-residential burglaries for the year ended 1991 was 4,832 representing approximately sixty per cent of burglaries. On one analysis the figures would suggest a move away from "professional" burglaries.

53. This is not to suggest that there has not been an increase in crime within Tasmania. It is not to suggest that the rate of residential burglaries is not of serious concern. It simply is an example of attempting to link raw datum to the effectiveness or otherwise of general deterrence.

54. A court may have regard to prevalence in cases where the rate of criminal conduct might imperil or threaten a particular sound structure such as social security (see Fisher v Gibson 48/1986) but that is a different proposition to that of the court making use of unrefined and unanalysed data.

55. But it cannot be said that the learned sentencing judge was in error in receiving the material nor in paying general regard to it. It cannot be said that he was in error in concluding that burglary and stealing "... are crimes which are extremely prevalent." It is less certain that his conclusion "... that past sentences have not operated as a sufficient deterrent to potential offenders" is an accurate one to be drawn from the material tendered. However, for the ground to succeed the appellant needs to show that as a consequence of the reception of the material the learned sentencing judge imposed "... a sentence greater than the current range of sentences for crimes of the type committed by the appellant". For the reasons given in the consideration of ground 1 I am not persuaded that the sentence was of the nature complained of.

56. Insofar as there is desirability in a court warning that the prevailing standard of sentences for a particular offence is too low, it should be done where there is to be a significant increase in the range of penalty and not where a particular penalty might be at the higher end of the range. As the High Court said in Poyner (supra) at 264 when discussing the questions of gradual increase and warning:

"These statements provide useful guidance which should always

be kept in mind, but they do not state a binding principle."

57. See also Devine v R A70/1993 (unreported, available on SCALE).

59. Ground 2 ought to succeed and it is appropriate that this Court proceed to determine the appropriate sentence. In my opinion, given the commencement point of five years, the appropriate discount for plea and co-operation is one year. That conclusion would warrant the imposition of a term of imprisonment for a period of four years.