Utilitarian Value of the Plea
20 A legal issue of general significance has arisen in the submissions in this case. That issue is whether a sentencing judge is permitted, when taking into account a plea of guilty, to quantify a discount to be given for the plea and, in any event, to give weight to the utilitarian value of the plea.
21 With respect to the effect to be given to the plea of guilty, Woods DCJ was, of course, bound by R v Thomson (2000) 49 NSWLR 383. His Honour allowed a discount of twenty-five percent, which he expressed to be for both the element of contrition and also for what his Honour referred to, in accordance with practice in this State, as "the utilitarian component of avoiding the necessity for a trial". This Court's decision in Thomson indicated that the utilitarian value of the plea "should generally be assessed in the range of ten to twenty-five percent discount on sentence" (at [160]).
22 The crown raised the question as to whether or not this Court's guidance in Thomson remained appropriate, in view of the High Court's decisions in Wong v The Queen [2001] HCA 64; 76 ALJR 79 and Cameron v The Queen [2002] HCA 6; 76 ALJR 382.
23 In Wong the joint judgment of Gaudron, Gummow and Hayne JJ disapproved of the "two stage" approach to sentencing - sometimes contrasted with an "instinctive synthesis" approach - by which a preliminary sentence is determined and thereafter adjusted "by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities" (at [76]). Their Honours said that a two stage approach is "wrong in principle" (at [76]). Their Honours noted that in AB v The Queen (1999) 198 CLR 111, McHugh J at [15]-[18] and Hayne J at [115] expressed the same view, Kirby J expressing a contrary view at [99]-[100].
24 As the joint judgment in Wong indicated at [76], the relevant line of authority was analysed in some detail by myself in R v Thomson at [54]-[113]. Specifically I said at [57]:
"The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole."
25 In this respect I relied on the reasoning of Gleeson CJ and Hunt J in R v Gallagher (1991) 23 NSWLR 220. (See Thomson at [68]-[72].)
26 I also referred to a number of other intermediate appellate court decisions that had acknowledged the appropriateness of a percentage discount, relevantly, for a plea of guilty. The other members of this Court in Thomson agreed with my judgment.
27 In Wong, the other member of the majority was Kirby J. His Honour did not join in the criticism of a two stage approach to sentencing. The reasoning of the joint judgment in this respect was of the same character as that considered by a five judge bench of this Court in Thomson. For the reasons there given, an "instinctive synthesis" approach was not adopted with respect to the particular matter now under consideration, i.e. quantification by a sentencing judge of the discount she or he has applied for the plea. This Court should not reconsider a recent decision of a five judge bench unless it is required to do so by the doctrine of precedent. It is not so required. The Court cannot add, in some notional way, the three judges who joined in the joint judgment in Wong with the opinion expressed by McHugh J in AB. (See also Cameron at [41].)
28 As the authorities considered in Thomson indicate, the Supreme Court of South Australia has also adopted the practice of encouraging sentencing judges to quantify the discount given for a plea of guilty. After the High Court's decision in Wong the Full Court of the Supreme Court of South Australia considered the implications of that judgment in R v Powell [2001] SASC 450. It concluded by a majority of two to one that the previous practice could continue, notwithstanding the criticism of a "two stage approach" to sentencing in the joint judgment in Wong. The matter was of sufficient practical significance for the Supreme Court of South Australia to convene a five judge bench in R v Place [2002] SASC 101, where the Court unanimously came to the same conclusion.
29 The judgment in Place considers at some length the implications of Wong for the practice in South Australia of suggesting sentencing standards for some offences. It also considers the implications of the reasoning in Wong for the practice with respect to pleas of guilty. The joint judgment of the South Australian Court of Criminal Appeal focuses on the reference in the joint judgment in Wong to "a mathematical approach to sentencing in which there are to be increments to, or decrements from, a predetermined range of sentences". (See Place at [35].) Their Honours set out in some detail the development of the practice of quantifying the discount in South Australia and also to the practice in other States. In the event, their Honours unanimously affirm the majority decision in Powell that the judgment in Wong does not require the court to change its practice.
30 Their Honours concluded:
"[80] The 'mathematical' two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty. The views expressed in the joint judgment concerning a two-stage approach, and in particular the example given with respect to identifying a reduction for a plea of guilty, were not the views of a majority. In our opinion this Court is not constrained by authority to hold that the existing practice in this State in wrong. In our view, the current practice is consistent with the requirements of s10 of the Sentencing Act and conforms with sentencing principles. The failure to identify a specific reduction is not an error of principle nor, in itself, is it a ground for interference with a sentence. Significantly, the South Australian practice does not detract from the requirement that sentencing courts take into account all relevant matters relating to the offence of the offender. The practice must not give rise to any distortion of the sentencing process or invite error. It does not interfere with the important consideration of proportionality. The views expressed by McHugh J in AB and in the joint judgment in Wong have not come to fruition in the ten years that the practice has existed in this State.
[81] The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons it are given. The community and the appellate court is similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
[82] The system is fair and practical. It has worked well in practice for a number of years. In our opinion it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the Court has departed from its present practice. An explanation for the departure based on describing the sentencing processes as an instinctive synthesis would be greeted with scepticism.
[83] For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of a reduction, the current practice of taking into account the timing of the plea, contrition, cooperation with and assistance to the authorities should continue. We emphasise that when taking into account any subjective considerations, sentencing courts should not ignore those subject considerations to the extent that they are relevant to other aspects of the sentencing task."
31 For similar reasons, in my opinion, the practice in this State, which has developed over a considerable period, culminating in the guideline judgment in Thomson, should also continue.
32 In Cameron a bench of five sat. There was a majority joint judgment of Gaudron, Gummow and Callinan JJ, which is binding on this Court.
33 Their Honours quoted, at [11], from the four judge joint judgment in Siganto v The Queen (1998) 194 CLR 656 at [22], which referred to mitigation of sentence on a plea as in part being based "on the pragmatic ground that the community is spared the expense of a contested trial". This was a passage expressly relied upon by this Court in Thomson at [4].
34 The joint judgment in Cameron stated, after referring to the passage in Siganto:
"[11] It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
[12] Although a plea of guilty may be taken into account in mitigation a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
[13] It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
[14] Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for the rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing."
35 In the present case, Woods DCJ referred to "the utilitarian component of avoiding the necessity for a trial". In doing so his Honour adopted terminology which has long been accepted in this State and which was reaffirmed in Thomson, which not only identified the utilitarian value of a plea in objective terms, but provided for a distinct quantification for the utilitarian value in circumstances where it rejected the submissions of the crown, and of the intervening Attorney General, that a discount be given for the whole of the value of a plea, incorporating all relevant elements including both the utilitarian element and other elements such as remorse. (See e.g. at [115], [116] and [160].)
36 If the reasoning in Cameron is applicable in this State, then the foundation of the judgment in Thomson is swept away. For purposes of the instant case, his Honour will have erred in taking into consideration a utilitarian component in the objective sense, without focusing his attention exclusively on the subjective aspect.
37 The discount range of ten to twenty-five percent established by Thomson, was based on the utilitarian value of the plea understood in an objective sense. There is no reason to accept that a discount of this order of magnitude would be appropriate as a separate element, if the courts' consideration were confined to the subjective factor of preparedness to facilitate the administration of justice. The size of the discount identified as appropriate in Thomson was determined by pragmatic considerations. If such considerations are not permitted to be taken into account, then the size of the discount identified in Thomson, which is reflected in the size of the discount given by his Honour, would no longer be appropriate.
38 The joint judgment in Cameron was concerned with general sentencing principles. It did so in the context of a West Australian statute. Those sentencing principles would be applicable in New South Wales, unless they have been modified by statute. If they had been so modified, then the different reasoning of Kirby J in Cameron at [65]-[68] would be pertinent for the practice in this State. This Court must determine whether there has been such a modification. In R v Place the five judge bench of the South Australian Court of Criminal Appeal suggested, at [64]-[79], without needing to finally decide the question, that Cameron did not apply under the legislation of that State.
39 In 1990 the New South Wales Parliament introduced s439 of the Crimes Act 1900. The section has now been re-enacted, in substantially the same form, as s22 of the Crimes (Sentencing Procedure) Act 1999 which provides:
"22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decision.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court."
40 The formulation in Cameron of "willingness to facilitate the course of justice" echoes the remarks of King CJ in R v Shannon (1979) 21 SASR 442 at 454-453 where his Honour put forward a number of propositions with respect to the effect of a plea as follows:
"1 A plea of guilty may be taken into account in mitigation of sentence where -
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to cooperation in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such cooperation may be a desire to earn leniency, and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve."
41 Although subjective considerations were emphasised in this judgment, King CJ subsequently invoked objective elements. For example, in R v Sutherland (SASC, 16 November 1992, unreported), his Honour said:
"This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy …"
42 A subjective perspective on the matter is also referred to, albeit in addition to an objective perspective, in a judgment of the Full Court of the Supreme Court of Victoria at about the same time. (R v Gray [1977] VR 225 at 323):
"… the plea may be evidence of remorse, that is, regret as to participation in the crime … There are other factors that operate in the public interest. The plea may operate, and may have been so intended, to save a prosecutrix the ordeal of giving evidence in a sexual case. The plea may serve, and may have been so intended, to save the State a lengthy and expensive trial. Yet in neither of such cases might the accused feel genuine remorse. There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But having been detected he has had to do the best he can for himself. Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves the measure of public utility in the belief that his own ultimate interest is best served by doing so. The judge may (not shall) take such circumstance into account in the accused's favour. If such action be tainted overmuch by self interest it probably will not avail the accused. Professor Sir Rupert Cross in his book The English Sentencing System (1971) p153 suggests that it is in the interests of the present judicial system that provided they are in fact guilty, accused persons should plead guilty. No doubt great cost to the community in time, convenience and money is thereby saved. However expedient as this may be from the point of view of the executive, it is not a matter which requires the sentencing judge to reduce the sentence below that which he otherwise believes to be proper in the circumstances.
On the other hand, there may be pleas of guilty which are not designed to serve the public interest - or may do so only marginally or incidentally. That is to say, the accused's self interest is completely predominant in the decision reached by him. One such case will be when the accused is quite unrepentant and confesses his guilt simply because the case against him is overwhelming and, in a practical sense, unanswerable. Now there may be a case of 'plea bargaining' between the accused or his advisers and the Crown, as, for instance, where the Crown accepts an offer by the accused to plead guilty to a lesser offence. The entry of a 'guilty' plea is then merely a manifestation of an exchange of an advantage for a disadvantage by both the accused and the Crown. In such case it will ordinarily be much more difficult to persuade the court that the guilty plea has that degree of spontaneity or sincerity expected to be the product of true repentance. But, of course, a plea bargain and remorse are not mutually exclusive. A remorseful accused ought not be prevented from taking the benefit of any arrangement he can advantageously make with the Crown nor penalised on that account if he does."
43 R v Gray suggested, but did not determine, that public benefit in an objective sense was relevant.
44 In 1985 the Victorian Parliament enacted the Penalties and Sentences Act 1985 (Vic). Section 4 of which provided:
"4(1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.
(2) If under subsection (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.
(3) The failure of a court to comply with subsection (2) does not invalidate any sentence imposed by it."
45 In R v Morton [1986] VR 863, the Full Court of the Supreme Court of Victoria had to consider what, if any, effect this legislation had on the pre-existing common law as set out in R v Gray. This analysis is of particular significance for the effect of the New South Wales legislation originally enacted as s439 of the Crimes Act. The Full Court of the Victorian Supreme Court found that the section did amend the common law in respects relevant to the construction of s439.
46 The joint judgment said at 867-868 (emphasis added):
"If sub-section (1) stood alone, it might be regarded merely as declaratory of the existing law, but the reference in the sub-section simply to the plea of guilty without qualification suggests that something more was intended. Parliament must be taken to know the law and the courts in this State have for a long time taken a plea of guilty into account when passing sentence in any case in which they have considered it appropriate to do so: see, for example R v Gray [1977] VR 225. Sub-section (2) confirms that something more than a mere declaration of the existing law is intended. That sub-section shows first of all that the taking into account of a plea of guilty, if it has an effect at all upon the sentence passed, is to operate to reduce not to increase the sentence. So much might again be regarded as no more than declaratory. But having regard to the principles stated in R v Gray , the absence of any words of limitation in sub-section (1) or in sub-section (2) and the absence of any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence lead inevitably to the conclusion that a plea of guilty may be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as remorse which is regarded as relevant for sentencing purposes . The existence of sub-section (2) with its mandatory requirement upon the court, if it 'under sub-section (1)' reduces the sentence it would otherwise have passed, to state that fact when passing sentence, shows the intention of Parliament to encourage the practice of a court's taking a plea of guilty into account in an accused's favour .
The judgment of the majority in R v Gray contains, at pp 230-3, a discussion of the occasions upon which and the extent to which it was, prior to the passing of s4, appropriate for a court to allow a plea of guilty to operate in mitigation of sentence. It is unnecessary to rehearse what is there said, but in summary their Honours Mclnerney and Crockett JJ. indicated that it was for a sentencing judge to evaluate a plea of guilty and having done so to give it such effect, if any, in reduction of sentence as he thought proper. Nothing in s4 renders that process unnecessary or inappropriate. But their Honours went on to suggest, at pp 232-3, that pleas of guilty which are not designed to serve the public interest and in which the accused's self-interest is completely dominant and pleas of guilty to lesser offences than those originally charged as a result of 'plea bargaining' between the accused or his advisers and the Crown will not ordinarily weigh heavily in the accused's favour. This part of their Honours' judgment may be modified by the new section .
The result of this consideration of the section is that a court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self-interest and even though it is a plea to lesser offences than those originally charged or intended to be charged. Doubtless, however, a plea of guilty which is indicative of remorse or of some other mitigating quality will ordinarily carry more weight than a plea dictated solely by self-interest. Nevertheless, Parliament having indicated, by the requirement that a court state the fact that it has reduced the sentence that it would otherwise have passed on account of a plea of guilty, that encouragement is to be given to pleas of guilty, such a plea should ordinarily be taken into account in the accused's favour. But nothing in this judgment should be taken as indicating a requirement that a court should pass a sentence that in all the circumstances it considers to be inappropriate." [my emphasis]
47 Subsequent Victorian cases have reiterated the proposition that the legislation (subsequently re-enacted as s5(2)(e) of the Sentencing Act 1991 (Vic)) was intended to "encourage pleas of guilty". See R v Giakas [1988] VR 973 at 978; R v Hall (1994) 76 A Crim R 454 at 469-470). As Charles JA succinctly put it: "the State itself benefits from the guilty plea". (R v Donnelly [1998] 1 VR 645 at 649. See also Fox & Freiberg Sentencing: State and Federal Law in Victoria (2nd ed) pars 3.814-3.815.)
48 The position in Victoria was altered by legislative intervention. In New South Wales, the Courts accepted that utilitarian considerations could be taken into account as such and not merely as a reflection of a subjective element. Hunt CJ at CL said in R v Winchester (1992) 58 A Crim R 345 at 350:
"The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected)."
49 It was for this reason that his Honour said, with reference to s439 of the Crimes Act 1900, that that legislation "does no more than state what the law is" (350). I unhesitatingly accept his Honour's statement of what the practice in this State was at the relevant time. I have not, however, been able to find an unambiguous statement of the utilitarian value of the plea earlier than his Honour's own judgment in R v Paull (1990) 20 NSWLR 427 at 429. See also Director of Public Prosecutions (Cth) v EI Karhani (1990) 21 NSWLR 370 at 382; R v Laurentiu and Becheru (1992) 63 A Crim R 402 at 208. (In Cameron at [39] McHugh J identifies the development as one of "recent years", referring to Winchester as the earliest authority.)
50 The New South Wales act states that a Court "must", not "may", take into account a plea. Furthermore, what is required to be taken into account is both "the fact" of the plea and "when" it was made. If a lesser penalty is not to be imposed then the Court must give reasons.
51 The statutory reference to "the fact" of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to "when" a plea was made, a reference only to subjective elements.
52 The mandatory language of s22 must be followed whether or not by doing so the Court can be seen to "discriminate", in the sense that word was used in the joint judgment in Cameron, against those who put the crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of "the fact" of the plea. The use of the word "must" and the reference to "the fact" of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.
53 To use the language of the Full Court in R v Morton, the New South Wales Act does not expressly contain "any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account". However, there is no warrant for limiting such "purposes" or "circumstances" so as to restrict the Court's attention to a subjective intention to assist the administration of justice, to the exclusion of the objective value of the plea.
54 By s34(1)(b)(i) of the Interpretation Act 1987, the Court may have regard to extrinsic material where a provision is "ambiguous or obscure". It may be that the drafter used both words - "ambiguous or obscure" - because of the distinction between those two words drawn by one member of the House of Lords in a case where their Lordships were unanimous that a particular statutory provision was entirely unambiguous, but three Lords said the meaning was X and two said it was Y. (See Ellerman Lines Ltd v Murray [1931] AC 126 esp at 144 per Lord Blanesburgh. See Megarry A Second Miscellany-at-Law Stevens & Sons, London, 1973 pp179-180.)
55 The use of the expanded phrase "ambiguous or obscure" indicates that the Parliament did not intend to adopt a narrow definition of "ambiguous". Not without irony, the word "ambiguous" may itself be used in different senses. 'Ambiguity' is not limited to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It often extends to circumstances in which the meaning is, for whatever reason, doubtful. In my opinion, it does so extend in s34 of the Interpretation Act.
56 As the authors of the third edition of Cross on Statutory Interpretation state:
"In the context of statutory interpretation the word most frequently used to indicate the doubt which a judge must entertain before he can search for, and if possible, apply a secondary meaning is 'ambiguity'. In ordinary language this term is often confined to situations in which the same word is capable of meaning two different things; but in relation to statutory interpretation, judicial usage sanctions the application of the word 'ambiguity' to describe any kind of doubtful meaning of words, phrases, or longer statutory provisions." (R Cross, Statutory Interpretation 3rd ed London, Butterworths, 1995, at 83-84.)
57 A similar broad approach of the concept of "ambiguity" is reflected in a judgment of Justice O'Connor in 1906, when his Honour said:
"It has been contended in this case that an ambiguity must appear on the face of a statute before you can apply he rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You will frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter." ( Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 at 456-457.)