Ground 3: Error in allowing a 25 percent discount for the utilitarian value of the plea
69The sentencing judge did not specify precisely what discount he allowed for the utilitarian value of the plea. Whilst regrettable, that does not of itself constitute error: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [80]-[93].
70However, it does seem to me that the sentencing judge did grant the respondents a discount of 25 percent for the utilitarian value of the plea, being the maximum discount suggested as appropriate by this Court in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]. That is implicit in the recognition by the trial judge of the fact the plea came immediately after the indictment was amended to include the count on which the guilty plea was accepted as well as the count for the more serious offence under s 61J of the Crimes Act 1900 . In this context, his Honour expressed his views as follows:
"As a matter of logic, fairness and justice it is difficult to see why a person should be penalised for not pleading to a more serious offence that has been charged, if the facts do not justify a plea to that offence. If the prosecution charges as a higher level than is merited, I fail to see why an offender should suffer a practical penalty for declining to plead to an offence for which he or she is in fact not guilty. Where they then plead immediately to a lesser offence, they are in my view entitled to the benefits that follow."
In referring to benefits, his Honour presumably was referring to a full utilitarian discount.
71The Crown argued that the approach of the sentencing judge was contrary to the decision in R v Thomson & Houlton supra as explained in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 in that it was not appropriate to grant a utilitarian discount of 25 percent when the pleas were only entered immediately before the commencement of the trial.
72In his judgment in R v Thomson & Houlton supra Spigelman CJ, with whom the other members of the Court agreed, stated that one of the circumstances which would generally affect the appropriate level of discount in a particular case was the time a plea was entered and that a plea entered at committal has a more significant utilitarian value than a plea entered at first listing in the District Court, which in turn has a greater benefit than a plea entered at the beginning of trial: see [154]. His Honour also stated that a discount at the top of the range should not be given, save in exceptional circumstances, after a matter has been set down for trial and that a discount towards the bottom of the range is appropriate for late pleas, for example, on a day fixed for trial: see [155]. However, in his concluding remarks, Spigelman CJ emphasised that whilst the primary consideration was the timing of the plea, what was to be regarded as an early plea would vary according to the circumstances of the case and was a matter for determination by the sentencing judge: see [160] (iii).
73In R v Borkowski supra the sentencing judge granted a discount of 25 percent for the utilitarian value of a plea to a charge of manslaughter when the plea was entered on arraignment and after a contested committal hearing. The explanation given was that one particular allegation by the Crown was disputed. Howie J pointed out that the respondent in that case could have pleaded guilty to manslaughter whilst denying the specific allegation (failure to stop at a red light). A similar option was not available to the respondents in this case up to the time the indictment was amended immediately prior to the trial.
74In Borkowski supra Howie J, with whom the other members of the Court agreed stated what he described as the general practice as follows (at [31]):
"As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case."
75Howie J also set out (at [32]) what he described as general principles on this issue to be applied by sentencing courts. Of particular relevance are the following (citations omitted):
"[32]1 The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount.
...
3 The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse ... nor is it affected by post-offending conduct.
...
8 Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.
9 The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain; or where the offender is waiting to see what charges are ultimately brought by the Crown; or the offender has delayed the plea to obtain some forensic advantage, such as having matters put on a Form 1.
10 An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value."
76In the present case the Crown submitted that the respondents had not previously indicated a willingness to plead guilty to a lesser offence at any time other than immediately prior to the commencement of the trial. Equally, there is nothing to suggest that the Crown demonstrated any willingness to accept such a plea at any earlier time. However, having regard to the principles laid down by this Court, particularly in Borkowski supra , it does not seem to me that it was open to the sentencing judge to hold that the circumstances in question constituted special circumstances justifying the grant of the full utilitarian discount. However, they did justify a significant discount. The Crown accepted that a discount of 15 percent would not be outside the appropriate range. I agree. Assuming in the case of KB and JL a total sentence of approximately 17 months (the 15 month suspended sentence together with the two months spent in custody before bail was granted) a variation in the discount from 25 percent to 15 percent would lead to an increase in the sentence of 2.6 months. In these circumstances, I would not interfere on this ground unless I was satisfied that the sentences otherwise were manifestly inadequate.
77A court should exercise its residual discretion not to impose a substituted sentence where, if the court were to do so, the increase would be so slight as to constitute 'tinkering': Dinsdale v The Queen supra at [62]; R v Woodland [2007] NSWCCA 29 at [53]. To alter the sentence on the basis that the trial judge erred in granting a 25 percent rather than 15 percent discount for the utilitarian value of the plea would, in my view, constitute an increase in the sentence so slight as to constitute tinkering.