Ground 2 - 5% discount for plea of guilty
23Given that a complaint of disparity accepts that the sentence imposed on an offender cannot otherwise be challenged (Rae v R [2011] NSWCCA 211 at [60]), it is convenient to deal first with this new ground. If error is demonstrated in relation to the discount such an error may be sufficient to explain the disparity in the sentences given to the co-offenders.
24Judge King noted that Mr Schoultz entered a plea of guilty at the earliest opportunity. Accordingly, he gave him a 25% discount for the utility of that plea.
25I have made mention of the difficulty in dealing with this ground of appeal because of the paucity of information concerning negotiations, if any, in relation to a plea of guilty prior to the plea being entered on 19 January 2011. It seems to me it is incumbent upon the Applicant, who argues this ground of appeal, to produce appropriate evidence to show that there was an error on the part of the Sentencing Judge in only giving a 5% discount.
26A reading of the transcript of the sentencing hearing makes two things clear. The first is that the Sentencing Judge was aware (as might be expected) that the indictment was amended only on 19 January 2011 to charge the present offence. The second is that the only reference made by the Applicant's counsel to the guilty plea and any discount was a submission that Mr Schoultz received a benefit of an early plea by the discount he was given by Judge King. No other submission was apparently made suggesting that there should be a discount for the guilty plea by the Applicant or what discount that should be.
27At the hearing of the appeal the Applicant's present counsel suggested that the discount ought to have been 15%. He made reference to comments by Howie J (with whom McClellan CJ at CL and Grove J agreed) in Sullivan v R; Skillin v R [2008] NSWCCA 296 at [15]-[17], and to what was said by Hodgson JA in R v Dib [2003] NSWCCA 117 at [8].
28In Sullivan the applicants were charged with a number of offences of disposing of motor vehicles contrary to s 188 of the Crimes Act 1900. Such offences are commonly known as re-birthing of motor vehicles. The relevant history concerning the pleas is to be found in Howie J's judgment at [8]:
The matters have a long history. Both of the applicants were arrested in May 2004. The applicant Skillin admitted to police disposing of the vehicles but maintained he did not know they were stolen. The applicant Sullivan refused to be interviewed by police. They were committed for trial to the District Court on 7 April 2005. The matters were first before that court in September 2005. There were numerous adjournments while the Crown served material on the applicants and determined what charges would proceed and how the applicants would be indicted. In March 2007 a trial date of 16 July 2007 was fixed. Eventually there were successful negotiations between the applicants and the Crown resulting in the indictment of 19 July 2007 to which the applicants pleaded guilty on arraignment.
29What seems to be suggested, although it is not made quite clear, is that the original charges differed from those contained in the indictment of 19 July 2007 to which the applicants pleaded guilty.
30The sentencing Judge in that case gave a discount of 15%, saying that the pleas involved significant utilitarian value, but she also said the "late negotiation and entry of pleas meant that the Crown had to prepare for the trial or series of separate of trials, therefore the utilitarian value of the pleas was diminished by their being made at that stage".
31Sullivan argued that the discount should have been at least 20%. Howie J went on to say:
[14] ... The short answer is that this Court would not generally find that there was an error in the exercise of discretion in choosing a discount of 15 per cent rather than one of 20 per cent, in particular where the Judge gives reasons for determining the discount chosen.
[15] The applicant seeks to obtain support from what I said in R v SY [2003] NSWCCA 291 in the following passage of my judgment and in particular the sentence I have underlined:
[86]It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given.
After that passage I quoted from the judgment of Hodgson JA in R v Dib [2003] NSWCCA 117 in which his Honour noted that pleas coming late in the proceedings will have less utilitarian effect and, therefore, attract a lesser discount.
[16] I do not understand how the underlined passage of my judgment applies to the facts in this case. Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. He knew what offences he had committed even if the Crown was not in a position to prosecute him for those matters. If the accused waits as a matter of tactics before entering negotiations with the Crown then so be it, but he does not obtain the advantage of the full utilitarian value of an early plea.
[17] At the hearing of the application, counsel for the applicant submitted that the Judge should have taken into account that whole history of the matter including the various charges that the Crown laid at different times during the period of the prosecution that did not find their way on to the final indictment. In my opinion none of this history changes the situation that the applicant knew what offences he had committed and what he was prepared to acknowledge whether the Crown had chosen to charge him with those offences or not. It is not unusual for persons to acknowledge to the authorities guilt of offences uncharged against them in an effort to clear the record and, as a result, be rewarded with what is known as an Ellis discount. A discount of 15 per cent was more than appropriate to meet the situation in this case. (emphasis added)
32In Dib the applicant was committed for trial on 17 December 2000 on a number of charges, one of which was that of being an accessory after the fact to murder. He and his co-accused were arraigned on 1 February 2001. The trial was listed to commence on 9 September 2002. The jury was empanelled on 11 September 2002.
33On that day the Crown presented a further indictment against the applicant of being an accessory after the fact to the malicious wounding of the deceased with intent to do grievous bodily harm. The applicant pleaded not guilty to the more serious charge but guilty to the lesser charge, and the Crown accepted that plea in full satisfaction of the indictment. The Sentencing Judge gave a discount for the utilitarian plea of guilty of 16.7%. The Sentencing Judge said that the discount for a plea of guilty would not be as great in a case where it involved a plea to a lesser charge as where it involved a plea to all charges brought by the Crown.
34This Court held that so holding was an error, and said that the plea should have been treated as one made at the earliest opportunity. However, the Sentencing Judge was not therefore bound to grant a discount of 25%. Hodgson JA (with whom Barr J agreed) said:
[4] However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382.
[5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
[6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.
[7] I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice.
[8] However, in my opinion, the discount given in this case, namely 16.7%, was entirely appropriate, and for that reason the first ground of appeal fails. (emphasis added)
35The Applicant points to the similarity of events in those cases where a plea was made to an amended indictment at the earliest opportunity after such indictment was presented. The Applicant argues that the discounts approved by this Court in those cases provides an indication of what is appropriate in the present case.
36R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 was the guideline judgment in respect of discounts for pleas of guilty. Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove and James JJ agreed) said:
[152] In my opinion, the appropriate range for a discount is from 10-25 percent.
[153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
...
[156] Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options.
...
[159] It is also pertinent to state that a discount of 10-25 percent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances.
[160] The Court should adopt the following guideline applicable to offences against State laws:
...
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
37In my opinion, limited use can be made in the present case of the judgments in Sullivan v R and R v Dib. The appeal in Sullivan was an appeal involving a complaint that the discount given for the plea was too low at 15% and should have been at least 20%. The reasons given by Howie J in Sullivan demonstrate a difficulty asserting any error in the exercise of discretion where it is said that rather than a discount of 15%, 20% should have been granted. Further, Howie J's remark about the appropriateness of 15% was that it was "more than appropriate" to meet the situation in that case.
38Dib was a crown appeal before double jeopardy was largely abolished, and it is not surprising that the Court was not prepared to interfere to adjust a discount in the circumstances of that case. However, the issue was whether a higher discount of 25% should have been granted. The statement about the appropriateness of a 16.7% discount must be seen in that context.
39The Applicant has further difficulties in the present case. The first is that, apart from mentioning that Judge King gave a discount for an early plea in relation to Schoulz, nothing else was put to the Sentencing Judge in the present case concerning a discount for a guilty plea. Mr O'Neil of counsel for the Applicant said that that was because the Applicant's counsel at the sentencing hearing was arguing for an intensive correction order. That is not a satisfactory explanation for failing to assist the Sentencing Judge to come to the view for which the Applicant now argues.
40Secondly, in the absence of evidence about negotiations, if any, prior to the amendment and the guilty plea, all that is known is that the trial date was vacated on three occasions, and that the Applicant only pleaded guilty after a decision on a voir dire and before the scheduled trial actually commenced. The Court was informed that the trial was estimated to take three days to a week. Nevertheless, it had been fixed three times for trial and vacated, and the trial judge was required to hear argument and rule on a voir dire that took two days of court hearing time.
41It may be accepted that the discount was at the bottom end of the range. However, if it is assumed (as this Court must) that there were no other negotiations for a plea prior to 19 January 2011, it was open to the trial judge to conclude that the value of the discount was small. Hodgson JA in Dib made it clear that the discount is not for the recognition of mitigation of culpability and that, despite a change in approach to the charges by the Crown at a late stage, the benefit to the community of a late plea is less, and justifies a lower discount. Further, this Court in Thomson recognised that in some circumstances a lower discount or no discount may be appropriate despite a plea.
42It seems to me that it was within the discretion of the Sentencing Judge to reduce the sentence by 5% for a plea which came at a late stage in the proceedings. In the absence of some evidence of an earlier offer by the Applicant to plead to the lesser charge ultimately brought, it cannot be said the Sentencing Judge's discretion miscarried.
43This ground fails.