R v Cardoso [2003] NSWCCA 15 | Case summary

The application 14 Before us, his Honour's sentencing exercise was challenged on a number of bases, but it is convenient to deal firstly with the significance of the offer to plead guilty to manslaughter. Counsel for the applicant at trial had argued that he was entitled to a measure of leniency on that account and, indeed, the Crown prosecutor had conceded in written submissions that it entitled him to "an appropriate discount." Both the applicant and the Crown were represented by different counsel in this Court. 15 While his Honour was referred to R v Thomson and Houlten (2000) 49 NSWLR 383, it would seem that his attention was not drawn to this Court's decision in R v Oinonen [1999] NSWCCA 310. The offender in that case had faced trial for murder by shooting. He was affected by liquor at the time and it would seem that he raised an issue whether the discharge of the gun was accidental, in the sense that it was not the result of his voluntary act. Prior to his arraignment he had offered to plead guilty to manslaughter but the Crown had declined to accept the plea. He did not plead guilty to that offence when arraigned. It seems that the sentencing judge saw the offer of the plea as of no significance, noting that it was still open to him to have formally entered the plea upon arraignment. 16 The Court of Criminal Appeal held that he was entitled to a measure of leniency for the offer of the plea, analogous to that earned by a plea of guilty actually entered. Grove J, with whom Spigelman CJ and Sully J agreed, had this to say (at paras 15-18): "It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act . There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted. The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the relief to the various witnesses of the burden of having to give evidence and potentially being cross-examined. In the instant case his Honour found otherwise that the appellant was in any event remorseful. He had demonstrated his remorse almost immediately after the crime had been committed. He was however as a result of his Honour's findings … deprived of any benefit that he might expect for what I have described as the utilitarian value of the offer of his plea. In my view the appellant should have been given that benefit."

(Section 439 of the Crimes Act , requiring a court to take into account an offender's plea of guilty, has since been repealed and replaced by s 22 of the Crimes (Sentencing Procedure) Act 1999.) 17 The Crown prosecutor before us challenged the reasoning in that judgment, submitting that it cannot stand with the later decision of Thomson and Houlten, recently revisited in R v Sharma (2002) 54 NSWLR 300. The affirmation by those cases of the purely utilitarian benefit of a plea of guilty, he argued, was directed only to those cases in which that benefit was realised by the entry of that plea and the avoidance or curtailment of a trial. No such benefit flows from the offer of a plea of guilty to a lesser charge which the Crown does not accept. There is no concept of "notional utility", the argument continued, whereby the offender who is found guilty of that lesser charge is extended the leniency which he or she might have earned if that offer had been accepted and the matter had not proceeded to trial. 18 The Crown prosecutor acknowledged that the offer of such a plea might attract leniency subjectively, as it might demonstrate remorse or, at least, a willingness to facilitate the course of justice: Cameron v The Queen (2002) 187 ALR 65, in the joint judgment at paragraphs 13-14. However, he observed correctly that Sharma, in which Cameron was considered, maintains a distinction between the subjective considerations raised by a plea of guilty and the utilitarian value of the plea, viewed objectively. Of course, that utilitarian value attaches to a plea of guilty to a crime less serious than that originally charged: R v Morton [1986] VR 863 at 867, cited in Sharma at para 46. 19 Hulme J passed sentence in the present case before the High Court handed down its decision in Cameron, and the notion of a willingness to facilitate the course of justice had not yet been introduced into sentencing law. His Honour expressly took into account the applicant's remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant's control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial. 20 It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act: see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event. 21 Oinonen was dealing with a special situation to which no reference was made in Thomson and Houlten or Sharma, and I see no inconsistency between the reasoning in Grove J's judgment and those later important cases. If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown's attitude. This would be unacceptable. 22 The principle in Oinonen was not questioned in R v Pennisi [2001] NSW CCA 326, decided after Thomson and Houlten, although it does not appear that the Crown raised in that case the issue before us. That applicant had been tried before Bell J for murder but the jury returned a verdict of guilty of manslaughter. In passing sentence, her Honour had specified a discount which included his offer on more than one occasion before the trial to plead guilty to manslaughter. In a joint judgment, Beasley JA, Wood CJ at CL and Carruthers AJ referred to Thomson and Houlten and continued (at para 27): "As events turned out there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted." 23 In my view, this matter is sufficient to warrant our intervention in the present case. As I have said, other matters were raised in the application. His Honour's findings of fact were challenged, in particular, his assessment of the gravity of the provocation to the applicant and the extent of the violence which he inflicted. It was said that any discount on sentence for the offer of a plea of guilty should be inflated to recognise the applicant's co-operation with police by making relevant admissions in an electronically recorded interview: cf Pennisi. It was also argued that the sentence was in any event excessive, in the light of Judicial Commission statistics and decisions of this Court in comparable cases. 24 Understandably, we have not been supplied with the entire record of the trial. We have the remarks on sentence, together with the transcript of the proceedings on sentence and the sentence exhibits, supplemented by parts of the trial transcript relevant to the applicant's challenge to his Honour's findings of fact. I would respectfully observe that, on that material, I might have taken a view of the gravity of the provocation and the degree of violence more favourable to the applicant than his Honour's. However, we do not have all the available material and this Court would not lightly disturb findings of fact on sentence by a judge who presided over a trial and had the advantage of seeing and hearing the witnesses. I find it unnecessary to decide the other matters raised on this application, because I consider that a fair assessment of the applicant's culpability calls for no less a sentence than that which I propose. 25 I would grant leave to appeal and allow the appeal. I would quash the sentence passed by Hulme J and, in lieu, I would sentence the applicant to imprisonment for seven years, to date from 16 December 1999, with a non-parole period of four years. He would be eligible for release on parole on 15 December, 2003. 26 GREG JAMES J: I agree with Hidden J that, notwithstanding no error is to be found expressed in the remarks of Hulme J, the sentence was affected by error of law in the result, in consequence of a failure to follow the decision of the court in Regina v Oinonen [1999] NSWCCA 310. Therefore, the ground of appeal asserted is made out. 27 It is entirely regrettable that the trial judge's attention was not directed to that decision. 28 The sentence passed at first instance was therefore not "warranted in law". It is the duty of this court in such a case under s 6 of the Criminal Appeal Act 1912 to ensure that the applicable sentence is "warranted in law and should have been passed". 29 I agree that the appeal should be allowed and that the sentence imposed at first instance should be set aside. I agree with the sentence proposed by Hidden J and, with the addition of these observations, with the reasons he gives.

R v Cardoso

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