The discount for utilitarian value
18 The applicant was arrested on 13 August 2003, and was in custody from that time onwards. He entered the pleas of guilty in the Local Court on 27 January 2004. The judge said -
"The offender pleaded guilty shortly after his arrest. He is entitled to have a discount from his sentence by reason of the plea and its utilitarian value. The prosecution of the offender for these matters would have involved considerable court time and a number of witnesses. I propose to discount the sentence which would otherwise have been imposed on the prisoner by ten per cent. Apart from contrition, which is sometimes said to be inherent in a plea, there was no evidence of any contrition or remorse, or indeed any awareness of the impact of the victims of his crime, contained within the plea made on behalf of the offender, that would warrant a greater discount from his sentence."
19 The applicant accepted that the judge was not obliged to grant a discount of any particular percentage, but submitted that there was an expectation that in the circumstances of this case there should be a discount at the top of the range indicated in R v Thomson and Houlton (2000) 49 NSWLR 383, or that it should be explained why a lesser discount was thought appropriate. He submitted that there was error in an inadequate discount and that a discount in the vicinity of 25 per cent should have been allowed.
20 At the sentencing hearing it was submitted for the applicant that it had been "indicated quite early to the Crown that this was likely to be a plea", that the plea had been held up by "service of the brief", that when the brief was available there was "a short negotiation as to how it was to be balanced in terms of the Form 1 and so on", and that "the plea was on the table early, once all the documentation was in and he had appropriate legal advice". The representative of the Crown responded, "Perhaps I can assist just by conceding that the plea is at the earliest opportunity". While there was reference in submissions to R v Thomson and Houlton, neither the applicant nor the Crown made a more explicit submission as to the appropriate discount.
21 In a number of cases it has been said, in answer to a submission that a plea of guilty at the earliest opportunity should bring a discount of 25 per cent, that the submission converts a guideline into a rule, and that the discount for the plea is discretionary and there is no entitlement to any particular discount: R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12]; R v Hanslow [2004] NSWCCA 163 at [24]. As was said in R v Thomson and Houlton at [160], in some cases regard to other relevant factors means that a plea of guilty will not lead to any discount at all, and it follows that in some cases a plea of guilty regarded with other relevant factors will not attract the discount which would be appropriate in isolation. In particular, it is necessary that the sentence be that warranted for the offence, and a discount may properly be lessened or declined if that fundamental principle would be infringed.
22 The Crown submitted that the plea had been preceded by an investigation of some scale, the gathering of much material, and the preparation and service of the statements comprised in the brief, as I understand it suggesting that this diminished the utilitarian value of the plea. In R v Newman at [12]-[13] Wood CJ at CL observed that the utilitarian value of a plea should be assessed "in the continuum of the justice system", and referred to the considerable time, expenditure and inconvenience which might be occasioned in the assembly of evidence and in mentions, as well as other matters later in the continuum.
23 That said, it is not obvious that the work to which the Crown drew attention would have been obviated significantly by an earlier plea, or was unnecessary for the sentencing process. The Crown's present submission is somewhat at odds with the bald concession made at the sentencing hearing, without a submission by the Crown that (for example) getting the documentation in before a plea reduced the utilitarian value. It was not suggested that the judge was in error in saying that the prosecution of the applicant would have involved "considerable court time and a number of witnesses", and I do not think it can be said that any reduction in utilitarian value would have been great.
24 Notwithstanding that the discount for a plea is discretionary, it remains that the guidance of R v Thomson and Houlton is that the utilitarian value of a plea should generally be assessed in the range of 10 to 25 per cent discount on sentence. The discount at which the judge arrived was at the bottom of that range. Given the Crown's concession that the plea was at the earliest opportunity, why did her Honour exercise her discretion in that manner?
25 The judge gave no explanation, and in my opinion there comes into play the remarks of Sully J, with whom Mason P and Sperling J agreed, in R v Johnstone [2004] NSWCCA 307 at [28], that -
" … the thrust of the guideline judgment in Thomson and Houlton does entail that in a case of the present kind a sentencing Judge might well come to the conclusion that there were factors, whether individual factors or a number of factors taken in combination, justifying a discount of less, and even significantly less, than the guideline maximum of 25 per cent; but it seems to me to be in accord with relevant principle that a sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that has led the Judge to that conclusion."
26 The Crown submitted that R v Johnstone was decided on 10 September 2004, after the sentencing of the applicant on 14 May 2000, and that the judge therefore did not err by failure in explanation. Sully J's remarks were, however, an application of the general principle that reasons should be given for a judge's decision. That was not a new principle. In these circumstances the decision was to allow a discount at the bottom of the range notwithstanding that the plea was at the earliest opportunity and the utilitarian value was considerable. In the absence of explanation by the judge, or more telling justification provided by the Crown before us, in my opinion it should be concluded that there was error on the judge's part in failing, without explanation, to allow a greater discount than the 10 per cent.