R v Gillick [2000] VSCA 127

5. After a hand-up brief committal at which witnesses for the prosecution were not cross-examined, the applicant pleaded not guilty to count 1 on the day of his arraignment and indicated a plea of not guilty to the other counts. But subsequently, on 17 May 1999, he pleaded guilty to count 1. No pleas were taken on the other counts, which appear to have been treated as alternatives.

8. The applicant admitted seven prior convictions from two court appearances in November 1991 and January 1996. They included convictions for cultivation of a narcotic plant and possession of a drug of dependence, for which he had received, among other offences, suspended sentences of imprisonment. The suspension period was two years from 24 January 1996 and consequently the instant offence was committed during the currency of that suspended sentence.

11. After a plea for leniency in which the learned judge received a report of a forensic psychologist, Mr Joblin, and viva voce evidence from the applicant's mother and sister, his Honour sentenced the applicant to be imprisoned for three-and-a-half years. A non-parole period of two-and-a-half years was fixed and a declaration made as to pre-sentence detention.

14. On 4 June 1999 the applicant lodged notice of application for leave to appeal against sentence, pleading: "The learned sentencing judge imposed a sentence which is manifestly excessive, taking into account all of the circumstances." After subsequent proceedings in this Court the applicant has elected to have his application for leave to appeal determined by three judges assembled.

17. There were alleged co-offenders, both called Robinson. They have now been committed for trial but still await that event. A directions hearing is to occur next August.

20. It is now necessary to set out in summary form the facts of this matter. The offence for which the applicant was convicted was committed at Coolaroo, specifically in a shed called Shed 42F which was part of a complex in Maffra Street of that suburb. At least from June 1995 the applicant and Rodney Robinson were tenants of that shed. By mid-1996 the complex owner sub-let half of the shed to a Mr Cornfoot and a Ms Scacco, and not long later there was evidence that the applicant may be living on the premises. The shed had a single electric supply meter and so Cornfoot and Ms Scacco became aware that electricity usage in the applicant's part of the premises had escalated greatly in the period from 30 December 1996 to 1 April 1997. Unusual activities of the applicant and Rodney Robinson were noted by other occupants of the complex and, not surprisingly, the police attended Shed 42F in the very early morning of 14 March 1997. They found the applicant therein and that the premises had been divided into living quarters and another area which contained a hydroponic plantation of 150 cannabis L plants and a smaller third area which had three cannabis L plants under a single sodium lamp. Cautioned by the officers, the applicant responded in somewhat Delphic terms, saying, "Yeah, I'm not saying anything, you know how it is. This is me; I'm here."

23. The total dried weight of the 153 cannabis plants was 4.539 kilograms. There was evidence before the learned judge that in March 1997 the retail price for cannabis L was $4,300 a pound and the potential harvest from plants on the premises would have yielded a total value of over $600,000.

26. I now turn to the arguments of counsel in this matter. Mr Boyce for the applicant began his submissions by contending that the sentencing judge gave insufficient weight to the applicant's plea of guilty and that as a consequence a manifestly excessive sentence has resulted. He allowed, however, that the judge referred to the plea and that it had saved considerable court time and community expense. Mr Boyce cited Siganto v. The Queen, a fairly recent decision of the High Court reported at (1998) 194 C.L.R.656, wherein it was said:

"[a] plea of guilty is ordinarily a matter to be taken into account in mitigation ... because it is usually evidence of some remorse on the part of the offender," (p.663).

30. Counsel further urged that the judge had erred in finding as he did that the applicant had exhibited "not the slightest shred" of remorse. In addition to Siganto, he referred variously to R. v. Shannon (1979) 21 S.A.S.R.442, R. v. Hall (1994) 76 A.Crim.R.454, R. v. Roland (1971) S.A.S.R.392, R. v. Holder and Johnson (1983) 3 N.S.W.L.R.245 and other cases to support submissions which I now summarise. Firstly, that it has been recognised in certain circumstances that a plea of guilty may be considered presumptive or prima facie evidence of remorse or contrition, which presumption may be rebutted in a particular instance, for example a plea of guilty at the eleventh hour or a plea of guilty entered what counsel called "defiantly". Secondly, the remorse or contrition recognised by the law as being mitigatory of penalty may not amount to a subjective moral state; it may be more correctly referred to as a "pragmatic" or "selfish" remorse. Counsel cited a passage from Shannon at p.452 where King, C.J. said the following:

"It is not the purpose of the criminal law, however, to bring about by its penalties an improvement in moral attitudes, although that result, if it occurs, is to be welcomed. I do not think, however, that that is the correct understanding of what is meant by contrition, repentance or remorse. The courts are more than content if they can bring about a change of attitude towards observance of the law as a result of self-interested desire to avoid punishment. This is the basis of the deterrent purpose of punishment. Sorrow or regret at having committed a crime because of the punishment which it is about to bring is genuine contrition, albeit proceeding from less than noble motives. Repentance in the sense of turning away from crime is genuine although resulting from no higher motive than a desire to avoid due punishment or a recognition that crime does not pay. Remorse is genuine although it amounts to no more than a self-centred reproach for a wasted life."

Also cited was a passage from R. v. Jabaljara (1989) 46 A.Crim.R.47 at 56, where Ashe, C.J. said the following:

"In New South Wales it seems open to the court to give a wide and generous interpretation to the concept of contrition, often by accepting the plea of guilty itself as evidence of contrition. Without being overly cynical, it is probably fair to say that there is far less real contrition than judges would persuade themselves of, and I have no doubt that judges know this but err on the side of generosity. The difference between being sorry for what one has done and sorry for being caught is a difference which judges may not always wish to investigate too thoroughly."

Mr Boyce further submitted that by referring as he did to the applicant's failure to co-operate with the police, the judge may well have been using that circumstance impermissibly to build the conclusion that the applicant exhibited not a shred of remorse.

37. Mr Coghlan for the Crown referred the Court to the common law as to pleas of guilty in sentencing and then to the passage of the Sentencing Act, in s.5(2) thereof, which requires the court to have regard to, among other things: "(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so." Mr Coghlan submitted that remorse was not in any way raised on the plea. In reply, Mr Boyce submitted that counsel for the applicant did refer to the plea of guilty on the plea and therefore he must be taken to have raised the matter of remorse.

40. I now turn to my conclusions. At the end of the day the submissions advanced on behalf of the applicant are as follows. Firstly, it was not open to the judge to make the finding that the applicant had exhibited "not the slightest shred of remorse". As I apprehended counsel, it was said that the plea of guilty stood squarely in the way of such a conclusion; at least some remorse must be presumed or assumed.

43. Despite the earnest efforts of Mr Boyce, I am unable to uphold this submission. The plea of guilty inevitably involved savings of court time and community expense. This the judge expressly acknowledged and stated that he took it into account in the applicant's favour. On the other hand it was obvious that the applicant was caught red-handed. The police found him surrounded by incriminating evidence in premises in which his residence could easily be proved, as he must have known. The statement that he made upon being cautioned is perhaps the most eloquent evidence of the predicament in which he found himself. In addition, his plea of guilty was a late one. No evidence of remorse in him was elicited from witnesses on the plea who might be expected to be well aware of such a state of mind if it existed. No submissions touching remorse were made on his behalf to the learned sentencing judge. In these circumstances, in my opinion, the finding now impugned was plainly open to the judge.

46. Secondly, there is the submission that the judge impermissibly used the applicant's lack of co-operation with the police in composing the sentence. I am unpersuaded that he did so. His reference to this matter merely forms part of the narrative of the evidence and there is nothing in the reasons for sentence to suggest that this matter was a factor in the actual sentencing process.

49. Finally, having regard to the ground pleaded, the applicant invites inspection of the face of the sentence in order to see if there is evidence that the judicial discretion has in some way miscarried. Performing that exercise, I am unable to find such evidence. It is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. I am unpersuaded that it did. In my opinion the sentence was plainly within range, taking into account matters favourable to the applicant, the circumstances of his offence, the maximum penalty fixed by Parliament and the fact that the offence was committed while the applicant was undergoing a suspended sentence for offences which included some drug related.

52. 16 I would propose, having regard to the lack of disposition of the alleged co-offenders of the applicant, that this application be refused.

56. I agree. I add something on my own account, mainly out of regard for Mr Boyce's carefully researched argument.

59. The learned sentencing judge expressly said that the applicant's plea of guilty had saved court time and community expense and would be taken into account in his favour. Later in the sentencing remarks his Honour said:

"In arriving at an appropriate sentence I take into account that there is still some hope for your rehabilitation, although I also take into account that not the slightest shred of remorse has been exhibited by you in relation to this offence."

It is on that second passage that counsel founded two submissions.

64. First, he contended that a plea of guilty gives rise to a presumption of remorse that has to be rebutted. I do not think that that is so. Acceptance of the submission would introduce unnecessary complexity, albeit that there is a sense in which, as Gleeson, C.J., Gummow, Hayne and Callinan, JJ. said in Siganto v. The Queen at [22], a plea of guilty is "usually evidence of some remorse on the part of the offender".

67. Remorse is a factor to be taken into account in favour of the offender and as such, if it is an issue, must be established on the balance of probabilities in accordance with the rule enunciated by the majority of the Full Bench in R. v. Storey [1998] 1 V.R.359 at 369 and endorsed in R. v. Olbrich [1999] HCA 54; (1999) 73 A.L.J.R. 1550 at [27]. Accordingly, I would not myself regard the impugned passage as a finding, but rather as an intimation by the learned judge that he was not prepared to make, and did not make, a finding of remorse in favour of the applicant.

70. 21 may be observed in passing that the words "usually" and "some" in the passage from Siganto's Case suggest that the High Court must have had an extended meaning of remorse in mind, for sincere repentance is not common.) There are a number of answers to this submission. One is that, pressed too far, it is an allegation of specific error, when the only ground of appeal is manifest excess. I hasten to add that for my own part I would have refused leave to amend the grounds of appeal had such leave been sought.

73. Another is that, when his Honour's words are read in context, two things become clear. The first is that he was not using the word in the extended sense found in Shannon's Case and possibly in Siganto's Case. The second is that he was alive to the question of re-offending or no to which King, C.J. referred. The impugned passage itself begins with an acknowledgment that there is still some hope for the applicant's rehabilitation.

76. It has been the practice of this Court and its predecessor since at least R. v. Gray [1977] VicRp 27; [1977] V.R. 225 at 235 to "dismiss" applications for leave to appeal. In that usage we are in distinguished company, although a purist would say that an application should be "refused" and only an appeal should be "dismissed". It matters little, because it has not been our practice, as a court of three, to grant leave to appeal but then dismiss the appeal, as is done in some other jurisdictions. In the present case, however, for the reason the learned Chief Justice has given, it is desirable that our order should be precisely expressed: cf. Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 305.

80. I also agree that, for the reasons given by the learned Chief Justice and Callaway, J.A., the application should be refused.

84. The order of the Court is that the application for leave to appeal against sentence stands refused.