Guilty plea to be taken into account

[11-500] Introduction

In Siganto v The Queen (1998) 194 CLR 656 at [22], 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 [11].

[11-503] Impermissible to penalise offender for pleading not guilty

A court is not permitted to penalise an offender for pleading not guilty. In Siganto v The Queen at [22] 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 [21], 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 [21] also affirmed the following passage from R v Gray [1977] 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.

[11-504] Obligations of the court taking the plea

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 [2011] NSWCA 202 at [59].

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 v DPP at [53]. 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 v DPP at [59]. 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 v DPP at [55], [59]. 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: Collier v DPP at [55].

Section 193(1) Criminal Procedure Act provides that the court must convict the accused person or make the order accordingly if “the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her”.

[11-505] Setting aside a guilty plea

Section 207 Criminal Procedure Act 1986 makes provision for the setting aside of a conviction after the withdrawal of a plea of guilty. It provides:


An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.


The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.

An accused seeking to withdraw a guilty plea must demonstrate a miscarriage of justice has occurred: R v Boag (1994) 73 A Crim R 35. The authorities emphasise that the issue is one of the integrity of the plea by reference to circumstances in which it was entered: Mao v DPP [2016] NSWSC 946 at [60] citing R v Sagiv (1986) 22 A Crim R 73; R v Van (2002) 129 A Crim R 229 at [48]–[50] and Wong v DPP (2005) 155 A Crim R 37 at [16]; Brown Brothers v Pittwater Council (2015) 90 NSWLR 717 at [156]–[163] extensively reviews the case law.

Johnson J in R v Wilkinson (No 4) (2009) 195 A Crim R 20 at [41]–[48] summarised the principles in appellate decisions governing an application to withdraw a plea of guilty [case references and citations omitted]:

[41] There is a well-recognised discretion to allow a person leave to withdraw a plea of guilty, at least prior to conviction.

[42] The Court may, in the exercise of discretion, grant leave to a person to withdraw a plea of guilty at any time before sentence is passed … Each case must be looked at in regard to its own facts and a decision made whether justice requires that such a course be taken.

[43] The onus lies upon the Applicant to demonstrate that leave should be granted … The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea … An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection.

[44] The plea of guilty itself is a cogent admission of the ingredients of the offence … Indeed, it has been described as the most cogent admission of guilt that can be made.

[45] On an application for leave to withdraw a plea of guilty, the question is not guilt or innocence as such but the integrity of the plea of guilty.

[46] A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it … Although these principles were expressed in the context of an appeal, the same principles apply where application is made at first instance for leave to withdraw a plea of guilty.

[47] Where an application is made for leave to withdraw a plea of guilty, evidence ought be adduced from the accused person as to the circumstances in which he or she came to plead guilty.

[48] The various circumstances identified by Spigelman CJ in R v Hura (2001) 121 A Crim R 472 at 478 [32] provide assistance where application is made for leave to withdraw a plea of guilty. These are:


Where the Appellant “did not appreciate the nature of the charge to which the plea was entered”.


Where the plea was not “a free and voluntary confession”.


The “plea was not really attributable to a genuine consciousness of guilt”.


Where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”.


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”.


The “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”.


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”.

Johnson J recited the above principles in R v Wilkinson (No 4) in Grant v Local Court of NSW [2015] NSWSC 356 and opined (at [36]) they were “well settled”.

An application to withdraw a plea of guilty in the Local Court cannot be treated on appeal as an application for an annulment of a conviction and the District Court will fall into jurisdictional error by doing so: DPP v Arab [2009] NSWCA 75 at [39].

[11-508] Taking into account a plea of guilty

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 [2009] NSWCCA 102 at [32]. It is applied after the otherwise appropriate sentence has been determined: R v Borkowski at [32].

[11-510] Guideline for guilty plea discount

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 [160]:


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 [155]. 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 [154]. Rare cases involving exceptional complexity and trial duration may justify a higher discount: at [156]. A discount within the range specified will not mean that a trial judge’s exercise of discretion cannot be subject to appellate review: at [158].]


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 [157].]

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 [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12] and R v Araya (2005) 155 A Crim R 555 at [44].

[11-514] The R v Borkowski principles

In R v Borkowski (2009) 195 A Crim R 1, Howie J (McClellan CJ at CL and Simpson J agreeing) said at [32] 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 [32]:


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 [154]; Forbes [2005] NSWCCA 377 at [116].


Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].


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 [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.


The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] 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 [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186 [Principle 5 no longer applies: see below].


Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.


There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] 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 [2006] NSWCCA 56; Giac [2008] 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 [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] (sic [2008]) NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete (sic Cheikh) [2004] 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 [1999] NSWCCA 310; Johnson [2003] 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 [2003] 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 [2011] NSWCCA 229 at [3], 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 [33]; Bathurst CJ at [2] agreeing. AB was given a “generous” (at [24]) 25% discount for a guilty plea entered in the Local Court following a significant dispute on sentence which was resolved against him.

Principle 5 in R v Borkowski, so far as it relates to the Ellis discount is no longer good law. The position is now that reflected in Panetta v R [2016] NSWCCA 85 that any Ellis discount must be numerically quantified. See Voluntary disclosure of unknown guilt at [12-218].

As to principle 7 in R v Borkowski, a discount for the guilty plea was withheld in Milat v R [2014] NSWCCA 29 at [92] 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 [72], [75]. The plurality in R v El-Andouri [2004] NSWCCA 178 at [34] 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 [81], [83]. 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 [84].

Principle 8 in R v Borkowski, generally applies subject to Bathurst CJ’s statement in R v AB at [3] that it is permissible for a court in specific instances to have regard to the reason for the delay in the guilty plea. In Shine v R [2016] NSWCCA 149, the applicant at no time denied committing the offence but he awaited the outcome of a psychiatric evaluation before entering a plea: Shine v R at [95]. A similar situation occurred in Haines v R [2016] NSWCCA 90. In both cases a utilitarian discount of 25% was warranted in the circumstances notwithstanding the timing of the plea: Shine v R at [95]; Haines v R at [33].

As to principle 9 in R v Borkowski, where the delay in the guilty plea is caused by the offender’s legal representative and it is not the fault of the offender, the utilitarian value of the plea is not undermined: Atkinson v R [2014] NSWCCA 262.


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 [2005] NSWCCA 91, Spigelman CJ said at [15]:

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 [82]–[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26].

Whether a failure to explicitly state that a guilty plea has been taken into account indicates that the plea was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v R [2014] NSWCCA 205 at [6]. Where there is a real possibility the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37].

[11-515] Criminal Case Conferencing Trial Act 2008

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 [2011] 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 [13], [103]. The judge erred by not dealing with the applicant on the basis of s 17(5)(b): Passaris v R at [106].

In Chompeay v R [2011] NSWCCA 96, Do v R [2010] NSWCCA 182 and Tran v R [2010] 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)).

[11-520] Willingness to facilitate the course of justice

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 [12]. In their joint judgment, Gaudron, Gummow, Callinan JJ said at [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 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 [19]. 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 [38]. 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 [62]. Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) said at [52]:

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 [65]. 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 [67].

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 [44]–[45]. See also R v Fernando [2002] NSWCCA 28 at [25]. 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.

[11-540] Combining the plea with other factors

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 [2004] NSWCCA 162 at [69]; 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 [9] 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 [3]. A combined discount exceeding 50% should be reserved for exceptional cases: SZ v R at [53]. 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 [11].

See Application of discount at [12-230].