PLEADING GUILTY02-Jun-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 2/6/2010
The amount of discount to be imposed for entering a plea of guilty is largely a discretionary aspect of the sentence: R v Thomson; R v Houlton  NSWCCA 309 (17 August 2000).
As an encouragement for offenders to plead guilty in relation to indictable offences in the Sydney metropolitan region, parliament introduced the Criminal Case Conferencing Trial Act 2008 (NSW) – the relevant provisions are set out below however, the significant aspect of this Act is the stipulation as to the amount of discount to be applied when the plea is entered i.e. if before committal for trial, a discount of 25% applies (s17(1)(a) and common law) or if after committal for trial up to 12.5% discount (s17(2)).
There are also a large number of factors that the court can and should take into consideration in regards to a plea of guilty. Apart from the person’s subjective factors there is also the aggravating and mitigating factors of the offence as per s21A of Crimes (Sentencing and Procedure) Act 1999 (NSW) – which are set out below; and if applicable any relevant discounts as per the Criminal Case Conferencing Trial Act 2008 (see below).
However, importantly the court cannot and should not double count an aggravating factor in regards to the sentence: as per the last sentence of s21A(2) and nor should the court take into account any matter of aggravation which could amount to a more serious offence: R v De Simoni (1981) 147 CLR 383.
There are also common law principles and guideline judgments that also need to be considered. Perhaps one of the most significant discounts is what is known as the Ellis discount - which is where a significant discount on sentence is allowed due to a person who comes forward and admits to an offence which the authorities would not otherwise have known about and which could not otherwise have been established against them: R v Ellis (1986) 6 NSWLR 603.
Putting aside the Ellis discount, a convenient and useful summary of the principles as they relate to the court discounting a sentence for a plea of guilty is contained within: R v Robert Borkowski  NSWCCA 102 (15 April 2009) per Howie J at para. 32:
It should not be necessary to do so, but, because 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. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act:
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: Thomson at ; Forbes  NSWCCA 377 at .
2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at .
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: Thomson at  to ; nor is it affected by post-offending conduct: Perry  NSWCCA 351.
4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton  NSWCCA 225.
5. 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.
6. 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
7. 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.
8. 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.
9. 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  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  NSWCCA 448.
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: Oinonen  NSWCCA 310; Johnson  NSWCCA 129
11. 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.
12. 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.
Guideline judgments that should also be considered include:
Pleading Guilty: R v Thompson; R v Houlton  NSWCCA 309 .
Break, Enter and Steal: In The matter of the Attorney General’s Application (No 1) under s26 of the Criminal Appeal Act; R vPonfield; R v Scott; R v Ryan; R v Johnson  NSWCCA 435.
Armed Robbery: R v Henry Barber Silver Tsoukatos Kyroglou Jenkins  NSWCCA 111 Revised 18.05.99.
Assault Police (this application was declined as a guideline judgment by the CCA): Attorney General’s Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 NSWCCA 515.
Dangerous Driving: R v Whyte  NSWCCA 343.
Drug Importation: Wong v The Queen; Leung v The Queen  HCA 64 .
High Range Prescribed Concentration of Alcohol: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002)  NSWCCA 303
Form 1: Attorney General’s Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002  NSWCCA 518
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21A
Aggravating, mitigating and other factors in sentencing
21A Aggravating, mitigating and other factors in sentencing
(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
(5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.
(6) In this section: "child sexual offence" means:
(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act1900where the person against whom the offence was committed was then under the age of 16 years, or
(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act1900, or
(c) an offence against section 80D or 80E of the Crimes Act 1900where the person against whom the offence was committed was then under the age of 16 years, or
(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.
"serious personal violence offence" means a personal violence offence (within the meaning of the Crimes(Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.
Criminal Case Conferencing Trial Act 2008
Discount for guilty plea
17 Discount for guilty plea
(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows:
(a) if the court imposes a sentence of imprisonment for a term-a term that is 25% less than the term the court would otherwise have imposed,
(b) if the court imposes a fine-a fine that is 25% less than the fine the court would otherwise have imposed,
(c) if the court makes a community service order directing the performance of community service work for a specified number of hours-work for 25% less than the number of hours the court would otherwise have ordered to be performed,
(d) if the court imposes a good behaviour bond for a term-a bond for 25% less than the term the court would otherwise have imposed.
(2) If an offender pleaded guilty to an offence at any time after being committed for trial, the sentencing court may allow a discount for the guilty plea of up to 12.5% less than the term, fine, work or bond that it would otherwise have imposed.
(3) However, when calculating the appropriate discount for the purposes of subsection (2), the court may only allow a discount that is proportionate to the remaining benefit of the guilty plea as determined by reference to the matters set out in section 16 (2).
(4) A sentencing court may allow a discount under this section for a guilty plea that is greater than that referred to in subsection (2) (but not greater than that referred to in subsection (1)) if an offender has pleaded guilty to an offence after being committed for trial and the court is satisfied that substantial grounds exist as referred to in subsection (5) for allowing a greater discount.
(5) For the purposes of subsection (4), substantial grounds exist for allowing a greater discount if:
(a) the compulsory conference certificate in relation to the offence records an offer by the offender to plead guilty to an alternative offence set out in the compulsory conference certificate that was refused by the prosecutor at any time before committal for trial and the offender was subsequently found guilty of that alternative offence, or
(b) the compulsory conference certificate records an offer by the offender to plead guilty to an alternative offence that was refused by the prosecutor at any time before committal for trial and accepted by the prosecutor after committal for trial, or
(c) the offer to plead guilty to an alternative offence is made for the first time, and accepted, after committal for trial and the offender had no reasonable opportunity to offer to plead guilty to such an offence before the committal, or
(d) the offender was found unfit to be tried for the offence concerned after being committed for trial and pleaded guilty to the offence when he or she was subsequently found fit to be tried.
(6) The burden of establishing the matters referred to in subsection (5) lies on the offender and must be proved on the balance of probabilities.
(7) The sentencing court may, for the purpose only of resolving any issue concerning the matters agreed to by parties at, or after, any compulsory conference held in respect of the offence to which the offender has pleaded guilty, or of making a determination in relation to any matter referred to in subsection (5), take into account the compulsory conference certificate relating to the conference.