Guilty plea to be taken into account
- [11-500] Introduction
- [11-503] Impermissible to penalise offender for pleading not guilty
- [11-504] Obligations of the court taking the plea
- [11-505] Section 22 Crimes (Sentencing Procedure) Act 1999
- [11-510] Guideline for guilty plea discount
- [11-514] The R v Borkowski principles
- [11-515] Criminal Case Conferencing Trial Act 2008
- [11-520] Willingness to facilitate the course of justice
- [11-530] Voluntary disclosure of unknown guilt
- [11-540] Combining the plea with other factors
- [11-545] Setting aside a guilty plea
In Siganto v The Queen (1998) 194 CLR 656, at 663–664 , Gleeson CJ, Gummow, Hayne and Callinan JJ said:
“… a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case”.
The passage was cited with approval in Cameron v The Queen (2002) 209 CLR 339 at .
A court is not permitted to penalise an offender for pleading not guilty. In Siganto v The Queen at  it was said:
“A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed.”
The court judges an offender for the crime, not for the defence: Siganto v The Queen at , affirming the proposition expressed in DA Thomas, Principles of Sentencing (2nd Ed), 1979, Heinemann, London, p 50. See also Cameron v The Queen (2002) 209 CLR 339. The High Court in Siganto v The Queen at  also affirmed the following passage from R v Gray  VR 225 at 231:
“It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court’s disapproval of the accused’s having put the issues to proof or having presented a time-wasting or even scurrilous defence.”
Where both parties to proceedings are present, s 192(2) of the Criminal Procedure Act 1986 provides that the court must “state the substance of the offence” to an accused and ask if the accused “pleads guilty or not guilty”. The stating by the court of the substance of the offence is not of itself a condition precedent to the validity of a plea of guilty, and it is not the purpose of ss 192 and 193 that the power to convict is not enlivened unless this has occurred: Collier v Director of Public Prosecutions  NSWCA 202 at .
The purpose of s 192(2) is to ensure that, to the knowledge of the court, an accused adequately understands the charge they are pleading to: Collier at . Generally in the case of an unrepresented accused, to ensure that they understand the charges and unequivocally plead to those charges it is necessary that the court state the substance of each offence to the accused and take separate pleas for each: Collier at . On the other hand, an accused who is legally represented, an “accused person” is defined to include “a legal practitioner representing an accused person”: s 3. Where an accused is legally represented, the practitioner can enter a plea.
The court should, as a matter of practice, at least draw the legal representative’s attention to the Court Attendance Notice/s (CAN) and the offences stated in them. This would amount to substantial, if not exact, compliance with s 192(2): Collier at , . In a busy Local Court it may be highly inconvenient to individually state multiple charges suggesting that it was not the purpose of s 192(2) to invalidate pleas or convictions if that section is not complied with: at .
Section 22 Crimes (Sentencing Procedure) Act 1999 provides as follows:
“Guilty plea to be taken into account
In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
the fact that the offender has pleaded guilty, and
when the offender pleaded guilty or indicated an intention to plead guilty, and
the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
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.
Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
The failure of a court to comply with this section does not invalidate any sentence imposed by the court.”
Section 22(1A) provides that the lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. It reflects the common law on the subject.
Subsections 22(1)(c) and 22(1A) were inserted by the Crimes (Sentencing Procedure) Amendment Act 2010. The “circumstances” a court can take into account for the purposes of s 22(1)(c) can include those beyond the offender’s control such as number and type of charges, the fitness of the offender to plead, offers to plead which are initially rejected but later accepted, or where the prosecution adds to the charges and indicates that it will amend the charge at a later time to specify a more appropriate offence.
A guilty plea is also expressed to be a mitigating factor (as provided by s 22) in s 21A(3)(k) of the Act.
A “sentencing discount” is a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration — in the case of a guilty plea — a utilitarian benefit: R v Borkowski  NSWCCA 102 at . It is applied after the otherwise appropriate sentence has been determined: R v Borkowski at .
In R v Thomson & Houlton (2000) 49 NSWLR 383 Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) set out the following guideline at 419 :
A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant — contrition, witness vulnerability and utilitarian value — but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10–25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
[Note: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, those entered on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial: at . The complexity of the issues about which evidence will have to be gathered and adduced will affect the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea: at . Rare cases involving exceptional complexity and trial duration may justify a higher discount: at . A discount within the range specified will not mean that a trial judge’s exercise of discretion cannot be subject to appellate review: at .]
In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.”
[Note: There are circumstances in which the protection of the public requires a long sentence to be imposed such that no discount for the plea is appropriate: at .]
The range of discount referred to in R v Thomson & Houlton is a guideline only. In a given situation it creates no presumption or entitlement to a particular discount: R v Scott  NSWCCA 286 at ; R v Newman  NSWCCA 113 at  and R v Araya (2005) 155 A Crim R 555 at .
In R v Borkowski (2009) 195 A Crim R 1, Howie J (McClellan CJ at CL and Simpson J agreeing) said at  that:
“… there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts”.
The court set out the following “principles of general application” at :
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: Thomson at ; Forbes  NSWCCA 377 at .
Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at .
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: Thomson at  to ; nor is it affected by post-offending conduct: Perry  NSWCCA 351.
The utilitarian discount does not take into account the strength of the prosecution case: Sutton  NSWCCA 225.
There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK  NSWCCA 381; Kite  NSWCCA 12 or for the ‘Ellis discount’; Lewins  NSWCCA 189; S  NSWCCA 186.
Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY  NSWCCA 291
There may be offences that are so serious that no discount should be given: Thomson at ; Kalache  NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri  NSWCCA 178.
Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis  NSWCCA 56; Giac  NSWCCA 280.
The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib  NSWCCA 117; Ahmad  NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin  (sic ) NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis  NSWCCA 56; Saad  NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete (sic Cheikh)  NSWCCA 448.
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: Oinonen  NSWCCA 310; Johnson  NSWCCA 129
The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo  NSWCCA 313.
The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.”
The principles of general application are subject to the provision of the Criminal Case Conferencing Trial Act 2008 (see below). The trial judge erred in R v Borkowski by giving the offender a 25% utilitarian discount for a guilty plea taken at first arraignment when the discount should not have been more than 15%.
Bathurst CJ in R v AB  NSWCCA 229 at , said courts should “... generally continue to follow the approach in R v Borkowski … the principles have to be applied by reference to the particular circumstances in any case”.
The discount for a plea is not fixed and may be eroded as a result of the manner in which the sentence proceedings are conducted: R v AB per Johnson J at ; Bathurst CJ at  agreeing. AB was given a “generous” (at ) 25% discount for a guilty plea entered in the Local Court following a significant dispute on sentence which was resolved against him.
As to principle 7 in R v Borkowski, a discount for the guilty plea was withheld in Milat v R  NSWCCA 29 at  on the basis of the extreme circumstances of the murder. The range of cases where no discount may be given extends to those where the sentence imposed is less than the statutory maximum: Milat v R at , . The plurality in R v El-Andouri  NSWCCA 178 at  purported to confine the circumstances in which a plea will not warrant any discount to cases where the protection of the public requires a long sentence, or for which the maximum sentence is appropriate notwithstanding the plea. However, this statement is merely a gloss on the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 and has the potential to misrepresent what the Chief Justice actually said: Milat v R at , . Spigelman CJ did not define a closed category of cases but rather merely acknowledged there will be cases where the discount is withheld: Milat v R at .
The guideline encouraged transparency in decision-making and favours expressly quantifying the discount (often expressed as a percentage reduction in the otherwise appropriate sentence) when the court takes a guilty plea into account in sentencing: R v Thomson & Houlton (2000) 49 NSWLR 383.
In R v Lawrence  NSWCCA 91, Spigelman CJ said at :
“This court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused.”
Although quantification of the discount is preferable, a failure to do so does not by itself establish error: R v Simpson (2001) 53 NSWLR 704 at –; R v DF  NSWCCA 259 at ; R v Henare  NSWCCA 366 at .
The Criminal Case Conferencing Trial Act 2008 established a trial scheme for participation in compulsory case conferences for proceedings in respect of an indictable offence. It applies only where a Court Attendance Notice (CAN) was filed on or after 1 May 2008 but before 8 October 2011 (by virtue of the Criminal Case Conferencing Trial Amendment Regulation 2011): s 5. The amending regulation ended the scheme. The Act does not apply to CANs filed on or after 8 October 2011. The trial to which the Act refers only relates to committal proceedings heard in either the Downing Centre or Central Local Courts in Sydney.
The scheme prescribes discounts for guilty pleas in matters to which the scheme applies. If an offender pleads guilty at any time before being committed for sentence, the court must allow a discount of 25%: s 17(1). The 25% discount applies to sentences of imprisonment (s 17(1)(a)), fines (s 17(1)(b)), community service orders (s 17(1)(c)), and bonds (s 17(1)(d)). If an offender pleads guilty to an offence at any time after being committed for trial, the court may allow a discount up to 12.5%: s 17(2), unless “substantial grounds” exist: ss 17(4)–(5). The court in Passaris v R  NSWCCA 216 considered the scheme. “Substantial grounds” will be established where a compulsory conference certificate shows that an offender’s offer to plead guilty to an alternative charge was initially rejected by the Crown but accepted after committal, in circumstances where the offer was rejected because it was conditional on disputed facts the Crown would not accept: Passaris v R at , . The judge erred by not dealing with the applicant on the basis of s 17(5)(b): Passaris v R at .
In Chompeay v R  NSWCCA 96, Do v R  NSWCCA 182 and Tran v R  NSWCCA 183 it was held that the judge’s failure to give a 25% discount in accordance with s 17(1)(a) was a material error.
No discount is available under the Act for offences attracting a maximum penalty of life imprisonment: s 16(3); Commonwealth offences (s 18(1)(a)); or offences excluded by the prosecutor under a notice in writing (ss 18(1)(b),(2)) but only if the prosecutor is satisfied that the offence involved an extreme level of culpability and it is highly probable that a jury would convict the offender (s 18(3)).
In Cameron v The Queen (2002) 209 CLR 339, the majority of the High Court refined the test for taking into account a plea of guilty: at . In their joint judgment, Gaudron, Gummow, Callinan JJ said at :
“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 that 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.”
According to the majority, a plea of guilty may be taken into account in mitigation of sentence if it evidences a willingness on the part of the offender to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice: at . This is a subjective test and requires more than simply deciding whether economic benefits flow from the plea.
In R v Sharma (2002) 54 NSWLR 300 the court held that the reasoning of the majority in Cameron v The Queen concerning the application of general sentencing principles, in the context of a WA statute, was not applicable in NSW because the common law principles enunciated there had been modified by statute: at . The court found that the proper construction of s 22 Crimes (Sentencing Procedure) Act 1999 permits the sentencer to take into account the objective utilitarian value of the plea: at . Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) said at :
“The mandatory language of s 22 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 … 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.”
Thus a court must take the plea into account even if there is no subjective intention to “facilitate the administration of justice”, as explained in Cameron v The Queen. The principles outlined in R v Thomson and Houlton (2000) 29 NSWLR 383, regarding the weight to be given to the utilitarian value of the plea, for saving the expense of a “contested hearing”, must therefore be given their full force.
The court also held that there was nothing in the NSW Act that expressly or implicitly referred to the common law requirement of “equal justice”. While the court did not doubt the application of this principle in NSW, it was not a principle that must be invoked to construe s 22 restrictively, in the absence of any indication to the contrary: R v Sharma (2002) 54 NSWLR 300 at . There was nothing in Cameron v The Queen that called into question the ability of a State Parliament to adopt a form of differentiation which may be, or appear to be, “discriminatory” in the sense that the words were used in Cameron v The Queen: at .
There were a number of decisions delivered before R v Sharma, where the NSWCCA held that the decision in R v Thomson and Houlton needed to be considered in light of Cameron v The Queen: R v MacDonnell (2002) 128 A Crim R 44 at –. See also R v Fernando  NSWCCA 28 at . However, R v Sharma is clear authority for the proposition that, so far as State offenders are concerned, a sentencing court is not required to be satisfied that the offender is motivated by a willingness to facilitate the course of justice before the utilitarian value of the plea may be taken into account in mitigating the penalty.
Where an offender makes voluntary disclosures of involvement in serious crime in respect of which the police had no knowledge, he or she is entitled to a “significant added element of leniency”, in accordance with the principles set out in R v Ellis (1986) 6 NSWLR 603 at 604. It is preferable for the judge to expressly acknowledge the significance of this factor at sentence: DBW v R  NSWCCA 236 at . In R v Ellis, not only did the respondent plead guilty, but he voluntarily disclosed to police for the first time his involvement in seven armed robberies. The oft-quoted passage from R v Ellis emanates from a short judgment of Street CJ, with whom Hunt and Allen JJ agreed. It reads as follows at 604:
“This court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”
The statement in R v Ellis is a “statement of general principle … a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied”: Ryan v The Queen (2001) 206 CLR 267 per McHugh J at  quoted with approval in Lewins v R (2007) 175 A Crim R 40 at .
The court should not give the offender a separate quantified discount for the Ellis principle: Lewins v R at ; R v Borkowski  NSWCCA 102 at ; S v R (2008) 186 A Crim R 505 at . The observation of Adams J in Raad v R  NSWCCA 138 at  that there was “much to be said” for specifying the Ellis discount given although this is “not essential” does not accord with the above decisions.
The voluntary confession of criminality will be relevant to other, more general considerations such as the prospects of rehabilitation and the likelihood of further offending: Lewins v R at .
The court can take into account that there has been a long delay between the commission of the crime and sentencing, and that the offender had since been rehabilitated. On the other hand, a lengthy period of concealment and lying to the police are factors not to be ignored: R v Baldacchino (unrep, 3/11/98, NSWCCA).
In Ryan v The Queen (2001) 206 CLR 267 Kirby J followed the previous decisions of R v Ellis (1986) 6 NSWLR 603 at 604 and AB v The Queen (1999) 198 CLR 111 at 126 in holding that the disclosure of offences that would have been otherwise unknown to the authorities warrant “considerable” or “significantly added” leniency in sentencing. Of the latter words, his Honour said at :
“[W]ords represent images that conjure up ideas. The words ‘significant’ and ‘considerable’ are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as ‘modest’ or ‘minimal’ or perhaps the ever enigmatic ‘appropriate’. For a long time now it has been the law — correctly in my view — that a ‘significant’ discount should be given in a case such as the present.”
In R v GLB  NSWCCA 210, the court held at  that, although some discount should be allowed:
“… a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge’s remarks on sentence that the judge has allowed a considerable or significant discount on this ground.”
Howie J said in Lewins v R at :
“Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender.”
The applicant in DBW v R  NSWCCA 236 at  was entitled to a significant amelioration of his sentence for confessing to criminality that was unknown and unlikely to be detected. On the other hand in Zhang v R  NSWCCA 233 at  the offender was not entitled to a significant leniency because there was a real likelihood that police would have been alerted to the arrival of another package of drugs without the offender’s information.
The entitlement to a discount applies, albeit to a lesser extent, where (precipitated by the co-offender) the police are close to identifying the offender and then the offender voluntarily surrenders and confesses: see R v Hasan  NSWCCA 21 at .
Care needs to be taken when there are a number of grounds for extending leniency, such as a plea of guilty with a measure of remorse, as well as the offender’s assistance to authorities and promise of future assistance.
Discounts for assistance and a guilty plea should ordinarily be a single, combined figure: SZ v R (2007) 168 A Crim R 249; R v El Hani  NSWCCA 162 at ; R v Thomson and Houlton (2000) 49 NSWLR 383 at [160(ii)]; R v Gallagher (1991) 23 NSWLR 220 at 228.
The court held in SZ v R at  that, since the decision of R v Thomson and Houlton, where the utilitarian value of the plea could be as high as 25%, the courts have had less scope to give a discount for assistance in cases of an early plea. A combined discount for pleas of guilty and assistance should not normally exceed 50%: SZ v R at . A combined discount exceeding 50% should be reserved for exceptional cases: SZ v R at . It would be in a rare case that a discount of more than 60% would not result in a manifestly inadequate sentence: SZ v R at .
See Application of discount at [12-230].
The court in Johnston v R  NSWCCA 82 at  adopted the following passage from Hura v R (2001) 121 A Crim R 472 at  which set out the circumstances where a court will set aside a guilty plea:
where the appellant ‘did not appreciate the nature of the charge to which the plea was entered’: Ferrer-Esis (1991) 55 A Crim R 231 at 233.
where the plea was not ‘a free and voluntary confession’: Chiron (at 220 D-E).
the ‘plea was not really attributable to a genuine consciousness of guilt’: Murphy  VR 187 at 191.
where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’: Sagiv (1986) 22 A Crim R 73 at 80.
where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
the ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’: Maxwell at 511; 186-187.
if ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’: Davies (1993) 19 MVR 481.”