R v Flaherty

2 Section 6AAA of the Sentencing Act was introduced by the Criminal Procedure Legislation Amendment Act 2008, the operative part of which came into operation on 1 July 2008. As the section is new there is no previous decision in relation to it which can assist me. It is appropriate that I explain, in a little detail, the effect which I have given to that section. I do so in a ruling which is separate to my sentencing remarks as it is inappropriate that I clutter those remarks, addressed to the prisoner, with complex legal analysis.

3 Ordinarily, a plea of guilty is considered to be a mitigating factor. Both at common law[1] and by virtue of s 6(1)(e) of the Sentencing Act, it is a factor which should be taken into account by the sentencing judge. While it does not necessarily result in a lower sentence being accorded to a prisoner, ordinarily it does operate, as a mitigating factor, to reduce the sentence which would otherwise be imposed on a prisoner. In my view, in the circumstances of this case, the plea of guilty should be taken into account, in favour of the prisoner, as a mitigating factor. The plea was made at the earliest possible stage. The committal proceeded "on the papers", at which the accused pleaded guilty. Following the accused's arrest he made full and frank admissions to the police. In my view, the accused's early, and ready, plea of guilty, is part and parcel of his continuing cooperative approach since his arrest. In addition, I consider that the plea was accompanied by, and indeed is evidence of, remorse by the prisoner. As a mitigating factor, the prisoner's plea of guilty necessarily operates to reduce the sentence which I would otherwise impose on him. In other words, I am imposing a less severe sentence on the prisoner than I would otherwise have imposed because the accused has pleaded guilty. Accordingly, s 6AAA applies, and, in accordance with that provision, I am required to state the sentence and the non-parole period I would have imposed but for the guilty plea.

4 Apart from s 6AAA, it has been long accepted, at least in Victoria, that the correct method for a sentencing judge to determine the appropriate sentence is by a process of "instinctive synthesis" of all relevant circumstances.[2] As the High Court has explained, that process does not involve an arcane, undisclosed process by which a judge, by some mystical means, divines the appropriate sentence to be imposed on an accused person. Rather, the instinctive synthesis referred to in the authorities describes the process by which a judge, in the exercise of a judicial discretion, balances and weighs all relevant factors, including the circumstances of the offence, and the circumstances of the offender.[3] In arriving at an appropriate synthesis of those factors, the courts have repudiated, as inappropriate, an arithmetic approach to sentencing, whereby the sentence is the product of the addition of periods of sentence for aggravating factors, and the subtraction of allocated periods of sentence to account for mitigating circumstances.[4] The rejection of an arithmetic approach is not a matter of form, but a matter of substance. The exercise of the sentencing discretion is necessarily an inexact art. It involves weighing factors which are, necessarily, conflicting and often irreconcilable. Thus the arithmetic approach would distort the correct approach to sentencing, which is constituted by a careful value judgment involving an appropriate assessment of all relevant circumstances.[5]

5 In Markarian,[6] the majority of the High Court recognised that there may be simple cases in which it may be possible to nominate the sentence which would be imposed, but for the existence of one mitigating factor. However, the Court affirmed the view, previously expressed by it in R v Wong[7], that ordinarily such an approach would be invalid and inappropriate. In Victoria, the courts have rigorously eschewed what might be otherwise described as the "two tiered" approach to sentencing, and have thus, generally, repudiated an approach by which a specific numerical discount is to be ascribed for a particular mitigating circumstance.[8] Accordingly, before the introduction of s 6AAA, the Court of Appeal had expressed the view that it was inappropriate for a sentencing judge to quantify the discount to be accorded to an accused person who has pleaded guilty to an offence.[9]

6 It is in this context that s 6AAA must be construed. In introducing the Criminal Procedure Legislation Amendment Bill, the Attorney-General, in his second reading speech, stated that the Bill implemented the recommendations of the Sentencing Advisory Council. He stated:

"This Bill implements the Council's recommendations to make this part of the sentencing decision making process more transparent. Transparency can be achieved by the court simply stating the sentence that it would have opposed 'but for the plea of guilty'. The Council recommended that in every sentence in which the court decides to provide a discount for a plea of guilty, it should identify and state the amount of that discount. This recommendation has been refined following further consultation on the Council's recommendation."

7 The recommendation of the Sentencing Advisory Council is contained in the final report of the Council dated September 2007 and entitled "Sentence Indication and Specified Sentence Discounts". In that report the Council reviewed the approach taken by the Victorian courts, and interstate courts, in relation to identifying the reduction of sentence accorded to a prisoner for pleading guilty. The Court noted that the Court of Appeal of New South Wales, and the South Australian Court of Criminal Appeal, had countenanced the specification, by a sentencing judge, of the "deduction" accorded to a prisoner for pleading guilty.[10] The Council then stated:[11]

"The Council has formed the view that it would be difficult and unnecessary to identify or prescribe the factors that should or should not be taken into account in determining the weight of the guilty plea in Victorian cases. In fact, the abstract quality of the notions used to determine the relevance of the guilty plea would make the task of isolating and quantifying some of these considerations not merely complex, but potentially also arbitrary.

There is clearly some overlap between the considerations that are relevant when determining the weight of a defendant's guilty plea and the relevance of remorse in sentencing an offender who has been found guilty. Similarly, as evidenced by the divergent approaches taken in New South Wales and South Australia, provided that the effect of the guilty plea on the sentence is clearly identified, it is not necessary to quantify or specify the particular considerations that led the Court to give the plea that value.

Another approach would be to isolate the sentencing value of the plea without identifying particular factors that are relevant, and exclusively relevant in this regard. This is the approach that has been adopted in South Australia and New South Wales. It is consistent with the doctrine of instinctive synthesis, it avoids confining or redefining the considerations of the Courts taken to account in determining the weight of the guilty plea, and it has the attraction of practicality; it provides a simple and transparent explanation of the effect of the guilty plea on the sentence.

The Council has concluded that it is possible for Victorian courts to identify the weight given to the guilty plea - that is, the sentence that would have been imposed but for the plea, without affecting the operation of the doctrine of instinctive synthesis. The Council therefore does not consider it necessary to consider the merits of that doctrine."

8 In my view, three points may be made at this stage. First, it is not the intention of the Criminal Procedure Legislation Amendment Act 2008 to abrogate, in its entirety, the fundamental approach to sentencing, as an instinctive synthesis of all relevant factors. Secondly, it is not the intention of the legislature that s 6AAA should operate to make sentences either more or less severe. Thirdly, and importantly, it is the clear legislative intention of the amending Act, both as expressed by the Attorney-General in his second reading speech, and evinced by the terms of s 6AAA itself, that the sentencing judge should identify, in terms of an actual period of imprisonment, the effect on a sentence of a plea of guilty. The underlying object of s 6AAA seems to be to advance the public interest in guilty persons pleading guilty, and to provide for a conspicuous reward to those who do so.

9 Unfortunately, there are difficulties in putting that legislative intention into effect. In a large number of cases, of which this is one, the plea of guilty does not operate as a mitigating circumstance in isolation. Of necessity it interrelates with, and, to some extent, has a symbiotic relationship with, other mitigating circumstances, and particularly matters such as cooperation, contrition and rehabilitation. Thus a guilty plea may, of itself, provide some evidence of remorse, and manifest an intention to advance the course of justice. Equally, the value of a plea of guilty may be enhanced where it is found that it is made in a spirit of cooperation, and that it is attended by contrition. In my view this is such a case. I have found that the accused, from the time of his arrest, intended to cooperate fully with the authorities, and thus his plea of guilty is part and parcel of that cooperative approach. Further, by the time the prisoner signified his intention, at the committal proceeding, to plead guilty, I consider that he had developed genuine remorse for what he had done. Thus, his plea of guilty, both at committal, and before me, were accompanied by remorse.

10 Taken literally, s 6AAA requires me, as an hypothetical exercise, to ignore the plea of guilty, in order to determine what sentence I would have imposed on the prisoner if he had not pleaded guilty. Self-evidently, it is intellectually highly artificial, if not impossible, to carry out that exercise. Firstly, it is difficult to imagine how the prisoner could have pleaded not guilty, having made full and detailed admissions of his guilt in his record of interview. Secondly, if the prisoner had pleaded not guilty, that would necessarily have impacted on my findings of remorse, on my findings of cooperation, and on my views as to rehabilitation. Indeed, I very much doubt that the evidence of important witnesses such as Mrs Flaherty, Mr Shinners, and Mrs Moresco, would have been the same, particularly as to the prisoner's remorse, if he had not pleaded guilty, and continued to acknowledge responsibility for the murder.

11 Nevertheless, s 6AAA does, it seems, require me to postulate, as an hypothesis, a situation in which the prisoner did not plead guilty, but in which there otherwise existed all the mitigating circumstances which I have found in favour of the prisoner, including his cooperation and later remorse. While that exercise is artificial, and difficult from an intellectual point of view, nevertheless I must be faithful to the intention of the legislation, namely to identify, in terms of a specific period of sentence, the effect which the prisoner's guilty plea has had on the sentence which I impose on him.

12 The question, then, is what aspects of the accused's plea do I take into account in quantifying the "discount" to which the accused is entitled under s 6AAA of the Sentencing Act? Ordinarily, a plea of guilty may be relevant for a variety of purposes. Without venturing to state an exhaustive list of the purposes for which a plea of guilty may be taken into account, they include: its utilitarian effect in saving the State resources and expense; its beneficial effect in sparing witnesses, and relatives of the victim, the trauma and stress of a criminal trial; its role in manifesting the accused's willingness to facilitate the course of justice[12]; and the fact that it is in the public interest that accused persons, who are guilty, be encouraged to publicly acknowledge their guilt by a plea to that effect. Further, in appropriate cases a plea of guilty may be evidence of remorse. The question is which, if any, of the above factors are to be taken into account in determining the quantitative weight to be given to the plea of guilty, for the purposes of s 6AAA.

13 In recent times, some interstate appellate courts have countenanced the specification by a sentencing judge of the amount by which that judge has reduced an accused person's sentence by reason of the plea of guilty of the accused. However, they have adopted divergent approaches in the quantification of that "discount". The Court of Criminal Appeal of New South Wales has held that the quantification of a discount resulting from a plea of guilty should reflect only the utilitarian value of the plea, and should not also take into account other matters such as remorse.[13] By contrast, the Court of Criminal Appeal of South Australia has held that in determining the extent of the reduction of sentence to be accorded to plea of guilty, it is appropriate to take into account factors such as the timing of the plea, contrition, cooperation with and assistance to the authorities.[14]

14 The approach in New South Wales has the virtue of avoiding what has been described by the Court of Appeal of that State as "double counting". On the other hand, there is a significant artificiality involved in trying to isolate, and quarantine, an accused person's plea of guilty from the circumstances in which it was made. For, to ignore the qualitative nature of a plea in a case such as this would fragment its value, and would not do justice to an accused who pleads guilty, not just out of necessity, but with remorse and in furtherance of his cooperation with the police. In my view, in the circumstances of the present case, it would be artificial, and highly undesirable, for me to evaluate the plea of guilty only in terms of its utilitarian effect. Indeed, to do so, would be to ignore the fact that it was made, in my view, out of a desire to continue the accused man's cooperation with the authorities, and that it was attended by remorse. In my view, it is appropriate that I take those factors into account in evaluating the weight to be given to the plea of guilty, as a separate identifiable factor in the sentencing discretion. The fact that I do so does not exhaust the mitigating effect of the accused's cooperation with the authorities after his arrest, or of his contrition. Those circumstances remain as separate mitigating factors, which work in tandem with the other mitigating factors which I shall identify to the accused in the course of my sentencing remarks. However, in determining, in effect, the amount by which the accused's sentence is to be reduced as a consequence of his plea of guilty in this case, I do take into account, not only the utilitarian effects of the plea, but also the fact that it was made out of an ongoing concern to cooperate with the authorities, and that it was accompanied by remorse.

15 As I have already stated, in the circumstances of this case, it is not possible to hypothesise, realistically, what sentence I would have imposed on the prisoner if he had not pleaded guilty, but if all the other circumstances of the case were the same. Nonetheless, in pronouncing sentence, I must endeavour to do so, in order to comply with s 6AAA, and to inform the prisoner of the term of imprisonment he has been spared as a result of his guilty plea. The only method by which I can achieve that object is to determine, first, the appropriate sentence to be imposed on the prisoner by an instinctive synthesis of all the circumstances, including his guilty plea, as attended by remorse and an endeavour to be cooperative. I have then attempted to identify how much longer the sentence would have been if the prisoner had not pleaded guilty. In that way I have, somewhat artificially, arrived at the hypothetical sentence postulated by s 6AAA, if the prisoner had not pleaded guilty. Doing the best I can, I estimate that the prisoner's guilty plea, which I consider to be made with remorse and with the intention to facilitate the course of justice, has operated to reduce the prisoner's head sentence, and minimum non-parole period, each by a period of two years. Thus, hypothetically, if the prisoner had not pleaded guilty, for the purposes of s 6AAA, I state that I would have imposed a sentence of 23 years' imprisonment with a minimum non-parole period of 18 years.

[1] R v Gray [1977] VicRp 27; [1977] VR 225, 232.

[2] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.

[3] Markarian v R [2005] HCA 25; (2005) 228 CLR 357, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[4] Wong v R [2001] HCA 64; (2001) 207 CLR 584, 611 [74, 75] (Gaudron, Gummow and Hayne JJ).

[5] Markarian [2005] HCA 25; (2005) 228 CLR 357, [51], [71] (McHugh J).

[7] (2001) 207 CLR 184.

[8] Young v R [1990] VicRp 84; [1990] VR 951, 955 - 956; R v Nagy [1992] VicRp 45; [1992] 1 VR 637, 638 - 639 (Crockett J), 652 (J D Phillips J); compare R v Sahari [2007] VSCA 235; (2007) 17 VR 269, [19] (Kellam JA).

[9] R v McIntosh [2005] VSCA 106 [25] (Chernov JA), [30] (Batt JA).

[10] R v Thomson; R v Houlton (2000) 49 NSWLR 483; R v Place [2002] SASC 101; (2002) 81 SASR 395.

[12] R v Cameron (2002) 209 CLR 339, 343.

[13] R v Thomson and Houlton (2000) 49 NSWLR 383, [114 to 123] (Spigelman CJ); R v Mak; R v MSK [2006] NSWCCA 381, [41], [45].

[14] R v Place [2002] SASC 101; (2002) 81 SASR 395, [80] to [83].