Director of Public Prosecutions (Cth) v Vinod Thomas Director of Public Prosecutions (Cth) v Leung Hang Wu
[2016] VSCA 237
•10 October 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0207
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| VINOD THOMAS | Respondent |
S APCR 2016 0045
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| LEUNG HANG WU | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and McLEISH JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 23 May 2016 | |
| DATE OF JUDGMENT: | 10 October 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 237 | 1st Revision 13 October 2016 n 13 |
| JUDGMENT APPEALED FROM: | DPP v Thomas (Unreported, County Court of Victoria, Judge Montgomery 1 October 2015) [2016] VCC 141 (Judge Cohen) | |
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CRIMINAL LAW – Appeal – Sentence – Guilty plea – Whether person who pleads guilty to Commonwealth offence entitled to discount for utilitarian benefit of plea – Cameron v The Queen (2002) 209 CLR 339, considered – Common law and State provisions concerning discount to be allowed for a plea of guilty considered – Rv Tyler (2007) 173 A Crim R 458, not followed – Crimes Act 1914 (Cth) s 16A(2)(g).
PRECEDENT – Comity – Decision of intermediate appellate court explaining reasoning of High Court – Whether other courts obliged to follow unless plainly wrong – Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609, approved.
CRIMINAL LAW – Sentence – Comparable cases – Utility of schedule of comparable cases – Schedule must be accompanied by articulation of unifying principles revealed by cases referred to – Prosecution must make plain purpose for which each case is relied on – Use of contrasting cases permissible – Sentencing judge not restricted to consideration of sentences in cases referred to by parties when fixing sentence.
CRIMINAL LAW – Appeal – Sentence – Manifest inadequacy – Attempted possession of commercial quantity of border controlled drug – 4.8 times commercial quantity threshold – Respondent Thomas sentenced to 5 years’ imprisonment with 3 years non-parole period – Sentence manifestly inadequate – Appeal allowed – Misapplication of principle – Re-sentenced to 9 years’ imprisonment with 6 years and 3 months non-parole period.
CRIMINAL LAW – Appeal – Sentence – Manifest inadequacy – Importation of commercial quantity of border controlled drug – 5.29 times commercial quantity threshold – Respondent Wu sentenced to 6 years and 6 months’ imprisonment with 3 years and 6 months non-parole period – Sentence manifestly inadequate – Appeal allowed – Re-sentenced to 10 years and 6 months’ imprisonment with 7 years and 6 months non-parole period.
PRIMARY CASES CONSIDERED – Cameron v The Queen (2002) 209 CLR 339 – R v Tyler (2007) 173 A Crim R 458 – R v Winchester (1992) 58 A Crim R 345 – R v Gray [1977] VR 225 – R v Shannon (1979) 21 SASR 442 – Phillips v The Queen (2012) 37 VR 594 – R v Place (2002) 81 SASR 395 – R v Morton [1986] VR 863 – R v Thomson and Houlton (2000) 49 NSWLR 383 – R v Sharma (2002) 54 NSWLR 300 – Siganto v The Queen (1998) 194 CLR 656 – R v Bugeja [2001] NSWCCA 196 – Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397 – R v Harrington (2016) 11 ACTLR 215 – R v RND [2002] VSCA 192 – Moody v French [2008] WASCA 67.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms W Abraham QC with Ms K Breckweg | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
| For the Respondent Thomas | Ms L A Taylor QC with Ms E Van Krimpen | Victoria Legal Aid |
| For the Respondent Wu | Mr R F Edney | Emma Turnbull Lawyers |
TABLE OF CONTENTS
Discount for the utilitarian benefit of the plea of guilty
Summary of conclusions
The construction of s 16A(2)(g)
The context and purpose of s 16A(2)(g) — extrinsic material
Context — the existing state of the common law
State legislation prior to the introduction of s 16A(2)(g) — taking account of the ‘fact of the plea’ — a discount for the utilitarian benefit of the plea of guilty
Did the common law alter the meaning of s 16A(2)(g)?
Further legislative measures prior to Cameron
Continued statements of the law as to utilitarian benefit
Appellate decisions allowing a discount for the utilitarian benefit of the plea for federal offences prior to Cameron
The decision in Cameron v The Queen
Appellate decisions since Cameron which have addressed the discount for the utilitarian benefit of the plea for Commonwealth offences
Cameron generally did not affect the construction of State provisions or the allowance of a discount for the pragmatic benefit of the plea of guilty to State offences
The Director’s reliance on Tyler
Does the principle of comity apply to the decisions in Tyler and Harrington?
Cameron does not require a different level of discount for a willingness to facilitate the course of justice
Thomas
Overview
Circumstances of offending
Ground 1 — Discount to be afforded for a plea of guilty
Ground 2 — Manifest inadequacy
Was the sentence manifestly inadequate?
Residual discretion
Wu
Overview
Circumstances of the offending
Findings made by sentencing judge
Ground 1 — Error in allowing discount for utilitarian benefit of the plea of guilty
Ground 2 — Manifest inadequacy
Annexure
REDLICH JA
SANTAMARIA JA
McLEISH JA:
Discount for the utilitarian benefit of the plea of guilty
The law in Victoria has long been that for Commonwealth and State offences a sentencing judge must take into account a plea of guilty, regardless of whether or not it reflects or is accompanied by evidence of remorse or contrition.[1] This is because, of itself, a plea of guilty spares the community the expense of a contested trial and equally spares witnesses and victims the experience of such a trial. The discount that a plea of guilty nearly always attracts on this basis is often referred to as a discount for ‘utilitarian benefit’. That objective benefit may be contrasted with the subjective circumstances of the offender, and in particular his or her remorse or contrition for the offending. Other subjective features may include the offender’s acceptance of responsibility for his or her actions and a willingness to facilitate the course of justice.
[1]See, eg, Phillips v The Queen (2012) 37 VR 594, 601–2 [24] (Nettle JA) (‘Phillips’).
The present appeals raise the question whether a discount for the utilitarian benefit of a plea of guilty is attracted in the case of a Commonwealth offence. The Commonwealth Director of Public Prosecutions submits that it is not. She submits that this follows from s 16A(2)(g) of the Crimes Act 1914 (Cth) (‘Crimes Act’). Alternatively, it is submitted that this Court is bound to follow the decision of the New South Wales Court of Appeal in R v Tyler,[2] and subsequent cases, to like effect. Those cases apply to sentencing for Commonwealth offences, certain observations made by members of the High Court in Cameron v The Queen,[3] to the effect that the rationale for a discount for a plea of guilty is to be seen, not on the basis that the plea has saved the community the expense of a contested hearing, but on the basis that the plea is seen, subjectively, as showing the willingness of the offender to facilitate the course of justice.[4]
[2](2007) 173 A Crim R 458 (‘Tyler’).
[3](2002) 209 CLR 339 (‘Cameron’).
[4]Ibid 343 [13]–[14] (Gaudron, Gummow and Callinan JJ).
The respondents submit that the discount for utilitarian benefit is available under s 16A(2)(g) in the same way as it is for sentencing in respect of State offences. They submit that this follows as a matter of construction and that the Court should not follow New South Wales authority to the contrary. For the reasons set out below, both these submissions should be accepted.
Each of these appeals raises two related issues. In sentencing for a Commonwealth offence, is a discount to be allowed for the objective utilitarian benefit of the plea of guilty? Second, is there a material difference between a discount for a willingness to facilitate the course of justice, as discussed in Cameron, and that allowed for the utilitarian benefit of the plea of guilty?
We have proceeded on the assumption that, at least in some cases, there may be a material difference between a discount for willingness to facilitate the course of justice and a discount for the utilitarian benefit. If a plea of guilty necessarily reveals a willingness to facilitate the course of justice, that willingness might not always attract the same discount as that which might be warranted if the utilitarian benefit were to be taken into account. Two examples will suffice to show that may be so. First, the discount attributable only to the subjective willingness of an offender for justice to take its course might not fully reflect, and give credit for, the utilitarian benefit in avoiding an especially long, costly and arduous contested trial. Second, the strength of the prosecution case has no bearing upon the discount to be allowed for the utilitarian benefit of the plea[5] but it may be more fully reflected in the discount to be allowed for the willingness to facilitate the course of justice. We shall return to the above assumption later in these reasons. We shall first address the common questions before turning to the individual merits of each of the appeals.
[5]Intermediate appellate authority in most jurisdictions has consistently treated the strength of the Crown case in this way.
The Director’s argument may be summarised as follows:
·First, she submits that the common law was altered by the decision in Cameron. The discount for a plea of guilty to Commonwealth offences is now confined to the three subjective factors stated in Cameron — remorse, acceptance of responsibility and the offender’s willingness to facilitate the course of justice, there being no discount for the objective utilitarian benefit.
·Second, s 16A(2)(g) of the Crimes Act, which requires the court to take account of the fact of the plea of guilty, has an ‘ambulatory’ effect and is to be construed in conformity with the common law position as now stated in Cameron. Accordingly the discount for a plea of guilty required by s 16A(2)(g) is confined to the subjective factors and no benefit is to be given for the purely objective utilitarian value of the plea.[6]
·Third, as the discount previously allowed for the utilitarian value of the plea of guilty would be greater than that allowed for a willingness to facilitate the course of justice, to reduce the sentence for the utilitarian benefit would result in error such as that in the sentences the subject of the Crown appeals.
·Fourth, the Director relies upon the decision of Tyler and other intermediate appellate court decisions which have held that, since Cameron, no discount is to be allowed for the utilitarian benefit of a plea of guilty for Commonwealth offences.
·Fifth, she invokes the principle of comity as requiring this Court to follow those decisions.
[6]Implicit in that submission is the assumption that a ‘willingness to facilitate the course of justice’ is not necessarily to be inferred from the fact of the plea. We shall later discuss the validity of that assumption.
Summary of conclusions
Our conclusions are as follows:
(a)The question whether a discount is available in respect of the utilitarian benefit of a plea of guilty to a Commonwealth offence is to be determined by reference to s 16A(2)(g) of the Crimes Act.
(b)A sentencing court must take account of the fact of the plea of guilty. Having regard to the text, context and purpose of s 16A(2)(g) of the Crimes Act, it is to be construed as meaning that a sentencing court must take into account the objective utilitarian benefit of a plea of guilty.
(c)We consider the view expressed in Tyler, that Cameron altered the nature and extent of the discount to be allowed for a plea of guilty for Commonwealth offences, to be plainly unsustainable. Intermediate appellate authority is quite divided as to how the joint reasons in Cameron are to be understood. In any event, the principle of comity does not require one appellate court to accept another appellate court’s understanding of the meaning to be given to reasons in a High Court judgment.
(d)Cameron was not concerned with a Commonwealth offence or the construction of s 16A(2)(g) of the Crimes Act. Further, there was no reference to s 16A(2)(g) in Tyler nor any consideration of whether statute governed the discount to be allowed for the fact of the plea of guilty or whether the statute could have been modified by the common law.
(e)Section 16A(2)(g) copied s 10(g) of the Criminal Law (Sentencing) Act1988 (SA), as it originally stood.[7] That provision and similar statutory provisions in other States require a sentencing court to take account of ‘the fact’ of the plea of guilty. Intermediate appellate courts have consistently construed the State provisions, both before and since Cameron, as meaning that a discount is to be allowed for the utilitarian benefit to the administration of justice of the plea of guilty. Given the common features of the text, purpose and context of the State and Commonwealth provisions, s 16A(2)(g) should be given the same construction.
(f)Tyler and other intermediate appellate decisions that have not allowed a discount for the utilitarian benefit of the plea of guilty for Commonwealth offences should not be followed. They are inconsistent with other appellate authority both before and since Cameron, which in our opinion has correctly allowed a discount for the utilitarian benefit of the plea for Commonwealth offences.
(g)A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender’s plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender’s willingness to follow that course, often described in the authorities as ‘co-operation’, vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.
(h)As a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest or the absence of remorse. Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of that plea. However, the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, will not always have the same mitigating weight as the utilitarian benefit of avoiding a contested trial. For that reason, while statute requires a sentencing court to have regard to the fact of a plea of guilty, it is important that the utilitarian benefit be adequately reflected. We do not understand Cameron to say anything to the contrary.
[7]The fact of the plea of guilty is now only relevant to sentencing with respect to a reduction of sentence for cooperation with law enforcement agencies under s 10A(3)(a) of the Criminal Law (Sentencing) Act1988 (SA).
The Crown appeals of Thomas and Wu were heard together. The Director appeals their sentences, inter alia on the ground that the sentencing judge erred in granting a discount for the utilitarian benefit of their pleas of guilty. In a separate hearing, this Court also heard prisoners’ appeals of Kim and Fang.[8] They had appealed against their sentences inter alia on the ground that the sentencing judge failed to allow the full discount for the objective utilitarian benefit of the plea of guilty. The parties in the two hearings were provided with a transcript of the argument in the other hearing and were afforded an opportunity to make further submissions to the Court in relation to this common issue.
[8][2016] VSCA 238.
We shall return to the facts and specific grounds raised in respect of each appeal after dealing with the common issue.
The construction of s 16A(2)(g)
Sentencing any federal offender must begin with a consideration of the applicable legislation — in this case pt 1B of the Crimes Act and in particular s 16A.[9] Section 16A was inserted by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). It came into operation on 17 July 1990 with the introduction of pt 1B. Part 1B, whilst not a code, lays down a comprehensive sentencing regime for federal offenders. In particular, div 2 of pt 1B is concerned with general sentencing principles.
[9]Markarian v The Queen (2006) 228 CLR 357, 371 [26] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The relevant parts of s 16A provide:
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
…..
(f)the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g)if the person has pleaded guilty to the charge in respect of the offence — that fact;
(h)the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences;
…..
(k)the need to ensure that the person is adequately punished for the offence;
…
(n) the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or other order under consideration would have on any of the person’s family or dependants.
Section 16A on its proper construction accommodates the application of the common law principles of sentencing.[10] Section 16A(2) obliges a court sentencing a federal offender to take into account such matters referred to in that sub-section ‘as are relevant and known to the court’. The Court must do that with a view to imposing on the offender a sentence or the making of an order that is ‘of a severity appropriate in all the circumstances of the offence’. As was recognised in Hili v The Queen,[11] various judicially developed general sentencing principles are accommodated because those principles give relevant content to the statutory expression ‘of a severity appropriate in all the circumstances of the offence’ used in s 16A(1), as well as some of the expressions used in s 16A(2) such as ‘the need to ensure that the person is adequately punished for the offence’.[12]
[10]Johnson v The Queen (2004) 205 ALR 346, 353 [15] (Gummow, Callinan and Heydon JJ).
[11](2010) 242 CLR 520.
[12]Ibid 528 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Hili’).
All of the matters specified in s 16A(2) to which the court must have regard, with the exception of (p), have been conventionally regarded as matters which sentencing courts took into account at common law prior to the amending legislation. The list of matters specified is not exhaustive and is ‘in addition to any other matters’. For example, there is no mention of general deterrence. The New South Wales Court of Appeal in Director of Public Prosecutions (Cth) v El Karhani concluded that the court’s duty to ensure that the sentence or order ‘is of a severity appropriate in all the circumstances of the offence’ imports a duty to ensure that all general principles of sentencing law are imported into the function of a court imposing a sentence on a federal offender.[13] What will be ‘appropriate’ will depend upon consideration of fundamental notions which include general deterrence.[14]
[13](1990) 21 NSWLR 370, 378 (Kirby P, Campbell and Newman JJ). Section 16A of the Crimes Act was amended by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act2015 (Cth) to include a reference to general deterrence: see s 16A(2)(ja). The amendment commenced on 27 November 2015. See generally Aitchison v The Queen [2015] VSCA 348.
[14]Ibid 380–1.
State sentencing provisions as to the relevance of a plea of guilty do not apply to Commonwealth offences. By operation of s 68 of the Judiciary Act 1903 (Cth), pt 1B of the Crimes Act ‘otherwise provides’, so State laws are not picked up to that extent.[15]
[15]Putland v The Queen (2004) 218 CLR 174, 189 [41] (Gummow and Heydon JJ); Bui v DPP (Cth) (2012) 244 CLR 638, 648–9 [11] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
It was not in issue on the appeals that s 16A(2)(g) requires the court to consider what discount should be allowed for the fact of the plea of guilty.[16] Since its introduction the provision has always been understood as directed to that end.[17]
[16]Wong v The Queen (2001) 207 CLR 584, 611–12 [74]–[76] (‘Wong’); Markarian v The Queen (2006) 228 CLR 357, 373–5 [37]–[38] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17]For example in Wong (2001) 207 CLR 584, 621 [101] n 185, Kirby J recorded his view that s 16A(2)(g) expressly requires an adjustment to the sentence to allow for the plea.
It is axiomatic that the proper construction of s 16A(2)(g) must be anchored in its text and by further reference to its context and purpose.[18] The provision states that the court ‘must’ take into account the fact of the plea. The provision gives quite particular emphasis to the plea of guilty — ‘that fact.‘ The mandatory obligation to take account of the fact of the plea is a cogent indicator that the provision is concerned primarily with the objective significance of the plea rather than any subjective intention or motive of the offender. At the same time, the provision contains no words of limitation as to how ‘the fact’ of the plea is relevant and does not specify the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence. The reasons of the Victorian Full Court in R v Morton,[19] and the New South Wales Court of Criminal Appeal in R v Sharma,[20] to which we shall make further reference, considered that the absence of words of limitation or purpose in the equivalent State provisions leads 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 contrition which is relevant for sentencing purposes.[21] Such reasoning is apposite to s 16A(2)(g). The focus upon the fact of the plea of guilty reveals the legislative intent that its utilitarian value is a distinct interest of the system of justice as a whole whereas many of the other factors enumerated in s 16A(2) are more closely linked to the particular circumstances of the offender. The administration of justice is facilitated by the fact of the plea, irrespective of the intent or motive accompanying it.
[18]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, 373 [10] (French CJ, Kiefel, Nettle and Gordon JJ). See also discussion in Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37(2) Monash University Law Review 1; Michael Kirby, ‘Statutory Interpretation: the Meaning of Meaning’ (2011) 35 Melbourne University Law Review 113; Justice Kenneth Hayne, ‘Statutes, Intentions and the Courts: What Place Does the Notion of Intention Have in Statutory Construction?’ (2014) 13 Oxford University Commonwealth Law Journal 271.
[19][1986] VR 863, 866–8 (Young CJ, King and Beach JJ) (‘Morton’).
[20](2002) 54 NSWLR 300, 312 [53] (Spigelman CJ) (‘Sharma’).
[21]Similar or identical State provisions have been given the same construction: Morton [1986] VR 863, 867 (Young CJ, King and Beach JJ); Sharma (2002) 54 NSWLR 300, 310–11 [46] (Spigelman CJ); R v Place(2002) 81 SASR 395, 423–4 [73]–[75] (Doyle CJ, Prior, Lander and Martin JJ); Phillips (2012) 37 VR 594, 609 [49] (Redlich JA and Curtain AJA); Rigby v Western Australia [2005] WASCA 134 [36] (Le Miere AJA).
The conclusion that sub-s (2)(g) is not concerned with why a plea of guilty is offered is strengthened by the presence of s 16A(2)(f), which makes separate provision for contrition as a matter that is to be taken into account. The plea of guilty is often relied upon as demonstrating contrition under sub-s (2)(f) and for its utilitarian benefit in sub-s (2)(g).[22] In fact, all State and Commonwealth statutory provisions which make reference to remorse or contrition separate those considerations from the ‘mere entry of a plea of guilty’ which is treated as a distinct factor.[23]
[22]See, eg, R v Teng [2005] VSC 33 [54] (Kellam J).
[23]David Field, ‘Plead Guilty Early and Convincingly to Avoid Disappointment’ (2002) 14 Bond Law Review 251, 266.
The context of the provision, to which we shall now turn, shows that it was intended to reflect the law as then already understood in parts of Australia which required a discount for the pragmatic benefits of the plea. It is a moot point whether that law was strictly the common law or the law as modified by statute in the respective jurisdictions. On either view, it was the law on which the Commonwealth statutory provision was based.
The context and purpose of s 16A(2)(g) — extrinsic material
We turn then to the context in which this provision was introduced and its purpose. Prior to the introduction of pt 1B in 1989, the Australian Law Reform Commission (the ‘Commission’) published a report on Commonwealth sentencing (the ‘Report’).[24] The Report was referred to in the second reading speech for the Crimes Legislation Amendment Bill (No 2) 1989 (Cth).[25]
[24]Australian Law Reform Commission, Sentencing, Report No 44 (1988).
[25]Commonwealth, Parliamentary Debates, House of Representatives, 5 October 1989, 1603 (Robert Brown, Minister for Land Transport and Shipping Support).
One of the recommendations of the Report was a discount for a plea of guilty. The Report set out that:
A ‘discount’ on the sentence for a plea of guilty is proposed. Since the plea has no bearing on the circumstances of the offence or the offender’s characteristics, the proposal may be seen as a significant departure from the just deserts model. Nevertheless, practical considerations, in particular the need to reduce court delays, justify courts being able to take account of the fact that the offender pleaded guilty to the charge. Providing information to the authorities should be treated on the same basis.[26]
[26]Australian Law Reform Commission, above n 24, xxii.
Further, the report noted that regardless of whether or not an offender showed remorse, the discount should still apply:
‘Discount’ on sentence for a plea of guilty. A plea of guilty, whether there is evidence of remorse or not, should be listed as a fact that can be taken into account in sentencing. No particular amount should be specified as the amount, or maximum amount, of the ‘discount’ … (majority recommendation).[27]
[27]Ibid xlii [96].
In the Report, the Commission expressly stated that ‘practical considerations’ formed the basis for the application of a discount for a guilty plea.[28] The Report went on to provide that while a plea of guilty may indicate contrition or remorse, a discount should still be available to those who are simply recognising the ‘inevitable’: [29]
practical considerations, in particular the need to reduce court delays, justify courts being able to take account of the fact that the offender pleaded guilty to the charge. The Commission has already recommended that a court should be able to have regard to evidence of contrition or remorse in determining sentence. A guilty plea may indicate contrition or remorse, but it may simply be a recognition of the inevitable. Some pleas may result from tactical considerations, or from charge bargaining. Allowing a ‘discount’ would have the advantages of
·encouraging shorter trials
·relieving delays and backlogs by lightening the court’s workload
·in many cases, saving the expense (often at the cost of legal aid) and inconvenience of a trial
·and saving trauma to witnesses, especially victims.
[28]Ibid 92–3 [173].
[29]Ibid.
The Report further recognised that the discount would also have an ‘administrative’ benefit in assisting to reduce court delays.[30]
[30]Ibid.
Context — the existing state of the common law
The concept of legislative intention demands consideration of purpose and object, surrounding circumstances and other matters which throw light on the meaning of the language. Although the task of determining intention must be approached with circumspection, Commonwealth interpretation legislation mandates a purposive approach to interpretation.[31] That requires that particular attention be given to the existing state of the law and the discernible mischief that the statute is intended to remedy.[32] The purpose, object or mischief to which a statutory text is directed is itself emphasised to be an important part of the context in which a statutory text is enacted. Context includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, and other facts and circumstances, including the state of the law as known or in contemplation by the framers and legislators who prepared or secured its enactment so as to prompt or explain the enactment, and developments over time in the national context in which the instrument is to be applied.[33]
[31]Acts Interpretation Act 1901 (Cth) s 15AA.
[32]CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[33]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Singh v Commonwealth (2004) 222 CLR 322, 332 [12] (Gleeson CJ); Gageler, above n 18.
The Director submitted that it was the legislative intention at the time of the introduction of s 16A(2)(g) to reflect the common law approach to the discount for a plea of guilty. Furthermore, a number of State sentencing provisions had already been introduced reflecting a common position. We turn then to the wider context in which s 16A(2)(g) was introduced. It is necessary for that purpose to canvass the way in which the discount for utilitarian benefit has been treated in State courts. As will be seen, the extent to which the discount is attributable to the common law, rather than statute, is not easily discerned.
In New South Wales, Street CJ stated in R v Holder that all accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence when proffering a plea of guilty although he also suggested that the relevance of a plea of guilty is subsumed under the general category of contrition to prevent the appearance of the criminal law dealing more harshly with a person who pleads not guilty. [34] His Honour later revised that position in R v Ellis where he said with the concurrence of Hunt and Allen JJ: [35]
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. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
[34][1983] 3 NSWLR 245, 258.
[35](1986) 6 NSWLR 603, 604.
The New South Wales Court of Criminal Appeal in R v Bond[36] and R v Winchester[37] reiterated that the relevance of the plea of guilty is not subsumed under the category of contrition but is to be taken into account as a factor in its own right on the grounds of saving the time and cost involved in a trial. The decision in Winchester followed the unreported decision of R v Beavan[38] where it had been said that a plea of guilty in its own right and independent of contrition mitigates the sentence because of the time and cost saved. In Winchester Hunt CJ at CL said:[39]
A plea of guilty is always a matter which must be taken into account when imposing sentence. … The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442, 452; Ellis (1986) 6 NSWLR 603, 604. 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 …
The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases in which there is a genuine issue to be determined, will be brought on for hearing without delay.
[36](1990) 48 A Crim R 1 (‘Bond’).
[37](1992) 58 A Crim R 345 (‘Winchester’).
[38]Unreported, New South Wales Court of Criminal Appeal, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991.
[39](1992) 58 A Crim R 345, 350.
Hunt CJ at CL also said in Winchester that s 439 of the Crimes Act 1900 (NSW), to which reference is made below, did no more than state the existing law.[40] It appears, however, that authority unambiguously supporting the discount for utilitarian benefit in New South Wales does not exist before 1990. As explained later in these reasons, in Victoria the discount has been treated as having been the result of legislative change. It is convenient to refer first to judicial consideration of the utilitarian benefit apart from statute. It will be seen that the difference between subjective and objective factors relevant to a plea of guilty generally began to be recognised at common law before statutory measures confirmed the availability of the discount for utilitarian benefit.[41]
[40]Ibid 350–1.
[41]See also R v Warfield (1994) 34 NSWLR 200 (Hunt CJ at CL; McInerney and James JJ agreeing); R v Paull (1990) 20 NSWLR 427, 429 (Hunt J); DPP v El Karhani (1990) 21 NSWLR 370, 382 (Kirby P, Campbell and Newman JJ); R v Laurentiu (1992) 63 A Crim R 402, 408 (Kirby P); R v Spiteri [1999] NSWCCA 3 [35] (Hulme J); R v Crowdey [1999] NSWCCA 24 [10] (James J; Grove and Dunford JJ agreeing); R v Doyle (1994) 71 A Crim R 360; Atholwood v The Queen (1999) 109 A Crim R 465, 467 [9] (Ipp J).
A relevant objective feature of the plea of guilty, not dependent upon that plea being the product of remorse either in whole or in part, was discussed in the judgment of the Full Court of the Supreme Court of Victoria in R v Gray:[42]
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 a 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), p 153 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 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. Another 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 the ‘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 a case it will ordinarily be much more difficult to persuade the court that the 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 seeking the benefit of any arrangement he can advantageously make with the Crown nor penalised on that account if he does.
[42][1977] VR 225, 232 (‘Gray’).
The utilitarian value of a guilty plea was more explicitly expounded, without the qualifications stated in Gray, by King CJ in R v Shannon, where his Honour said:[43]
[43](1979) 21 SASR 442, 451 (‘Shannon’).
The conditions under which justice is administered change and the emphasis to be placed upon the various purposes to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasise the need for practical encouragement for guilty persons to admit their guilt. … If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence.
The majority further concluded in Shannon:[44]
A plea of guilty may be taken into account in mitigation of sentence where … it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial … notwithstanding that the motive … for such co-operation may be a desire to earn leniency.
King CJ referred to the ‘willingness’ and ‘cooperation’ evinced by an accused who pleads guilty. But the basis for the discount explained lay in wholly objective considerations.[45]
[44]Ibid 452–3, 459.
[45]See also R v Slater (1984) 36 SASR 524, 526 (King CJ). See further, outside South Australia: R v Dowie [1989] Tas R 167; R v Harman (1988) 35 A Crim R 447; Morton [1986] VR 863; R v Giakas [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ).
In almost every jurisdiction, Shannon had a profound influence on the common law and the text of sentencing provisions concerned with pleas of guilty which were introduced.[46] In Queensland in R v Harman,[47] de Jersey J affirmed the position stated in R v Pickett[48] that a guilty plea, particularly an early guilty plea which resulted in the saving of public time, effort and money, could lead to a reduction in sentence. Similarly in Tasmania, in R v Dowie[49] Wright J stated that a plea of guilty entitles the sentencing court to reduce an otherwise appropriate sentence, not only because such a plea is a concrete illustration of genuine remorse but also because it enables savings in public expense in the disposition of the case and on occasions shields the complainant and other witnesses from the trauma of participation in a trial. In McDonald v White,[50] Johnson J referred to the numerous earlier Western Australian authorities which also made clear that a plea of guilty is mitigatory, even if made without remorse, as it is in the general interests of the administration of criminal justice. He stated that the principle was part of the law of Western Australia for many years before the Sentencing Act 1995 (WA) and that the principle now had statutory backing.[51] There are numerous other decisions to the same effect, their number swelling in the immediate period before the introduction of pt 1B of the Crimes Act.[52]
[46]R v Schumacher (1981) 3 A Crim R 441 (Federal Court); Winchester (1992) 58 A Crim R 345 (NSW); R v Paull (1990) 20 NSWLR 427 (NSW); R v Harman [1989] 1 Qd R 414 (Qld); R v Bulger [1990] 2 Qd R 559 (Qld); Zapata v The Queen (Unreported, Western Australia Court of Criminal Appeal, Brinsden, Kennedy and Rowland JJ, 22 December 1988) (WA); R v Dowie [1989] Tas R 167 (Tas); R v Smith (1988) 39 A Crim R 48 (ACT); Short v The Queen (1994) 49 FCR 556 (ACT).
[47][1989] 1 Qd R 414.
[48][1986] 2 Qd R 441.
[49][1989] Tas R 167.
[50][2007] WASC 138.
[51]Ibid [43].
[52] See, eg, R v Heard (aka Summers) (1987) 11 NSWLR 46, 48–9 (Lee J); R v Giakas [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ); R v de Zylva (1988) 33 A Crim R 44, 46 (Young CJ, Crockett and Marks JJ); DPP v Smith (1988) 33 A Crim R 95, 97 (Young CJ).
The principle reflected in these cases rests upon the fundamental perception of utility that for a number of reasons it avails society for the offender to be convicted and a trial avoided.[53] That utility was set out in the joint reasons of this Court in Phillips:[54]
A number of important features of our system of criminal justice underlie this sentencing principle. No accused person is obliged to plead guilty. Every accused is entitled to put the Crown to its proof. No accused is to be sentenced to a more severe penalty because they stood trial: Cameron v The Queen (2002) 209 CLR 339, 351. The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty: Cameron at 361. Were it otherwise, the courts would be unable to provide justice within any tolerable time frame and injustice would be done to victims, witnesses, accused persons and the community generally. The public interest is always served where an offender pleads guilty, not the least because it provides for certainty of outcome and a resolution of the substantive issue: Cameron at 360-1. A plea of guilty not only resolves the crime and releases investigators to other duties; resources are preserved for cases in which the guilt of the offender is really in issue. The plea vindicates public confidence in the legal processes established to protect the community, relieves the victims and witnesses of having to give evidence and provides some closure and vindication for victims of the crime.
State legislation prior to the introduction of s 16A(2)(g) — taking account of the ‘fact of the plea’ — a discount for the utilitarian benefit of the plea of guilty
[53]Phillips (2012) 37 VR 594.
[54]Ibid 605 [38].
The utility of the plea, as discussed in the above authorities, was the impetus for a number of States and then the Commonwealth to legislate to provide for a discount for the plea of guilty. Legislation in most States was introduced which either adopted the already existing common law practice in that State or introduced the practice of allowing a discount for the utilitarian or pragmatic benefit of the plea of guilty.[55] The identical provision to s 16A(2)(g) in South Australia and the similar provisions in Victoria requiring the ‘fact of the plea’ to be taken into account were introduced before s 16A. Both State provisions had been construed, and continue to be construed, by intermediate appellate courts as requiring a discount for the pragmatic value of the plea. The construction given to these State provisions by intermediate appellate courts is pertinent in approaching the construction of s 16A(2)(g).
Section 10 — Criminal Law (Sentencing) Act 1988 (SA)
[55]Crimes Act 1900 (ACT) s 429A(1)(u); Crimes Act 1900 (NSW) s 439; Sentencing Act 1995 (NT) s 5(2)(j); Penalties and Sentences Act 1992 (Qld) s 13; Criminal Law (Sentencing) Act 1988 (SA) s 10(g); Penalties and Sentences Act 1985 s 4, Sentencing Act 1991 s 5(2)(e); Criminal Code Act Compilation Act 1913 (WA) s 19B(1).
Significantly, when s 16A was introduced, it adopted, without any material difference, the terms of s 10 of the Criminal Law (Sentencing) Act1988 (SA). Section 10 was in these terms:
Matters to which a sentencing court should have regard
10.A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(a) the circumstances of the offence;
(b) other offences (if any) that are to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character — that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f)the degree to which the defendant has shown contrition for the offence –
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g)if the defendant has pleaded guilty to the charge of the offence — that fact;
(h)the degree to which the defendant has co-operated in the investigation of the offence;
(i)the need to protect the community from the defendant’s criminal acts;
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k)the need to ensure that the defendant is adequately punished for the offence;
(l)the character, antecedents, age, means and physical or mental condition of the defendant;
(m) the rehabilitation of the defendant;
(n)the probable effect any sentence under consideration would have on dependants of the defendant;
(o) any other relevant matter.
The impact of this provision was considered by the South Australian Supreme Court in R v Adami.[56] There, the Court was asked to consider whether the introduction of s 10(n) changed the common law with regard to considerations of the impact of sentencing on dependants of the offender. The Court was unanimous in its finding that the introduction of s 10, including sub-s (g),[57] was declaratory of the common law[58] and that the discretionary powers of the sentencing court were left to the general law as laid down in the cases enunciating numerous principles of sentencing.[59]
[56](1989) 51 SASR 229.
[57]Ibid 231 (Legoe J).
[58]Ibid 233 (Bollen J).
[59]Ibid 231 (Legoe J).
This has consistently been the approach taken to s 10(g) in South Australia.[60] In R v Place[61] Doyle CJ, Prior, Lander and Martin JJ noted that appellate courts had consistently provided a specific reduction in return for a plea of guilty based in part upon the utilitarian ground. They further said:[62]
It is noteworthy that in Shannon, King CJ expressed the view that a plea of guilty may be taken into account in mitigation where ‘it results from a willingness to cooperate 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.’
…
Section 10 requires the court to have regard to the fact that an accused has pleaded guilty. No guidance is given as to how that fact is to be taken into account. It has been accepted on more than one occasion that s 10 reflects the common law and this court is entitled to assume that, when the Sentencing Act was passed, the legislature was aware of the approach of the courts to the relevance of a plea of guilty as identified by King CJ in Shannon.
[60]See, eg, R v Shannon (1979) 21 SASR 442; R v Wall [2000] SASC 177; R v McKenna [2006] SASC 49 [12]–[13] (Sulan J; Doyle CJ and Nyland J agreeing), citing R v Place(2002) 81 SASR 395, 416–24 (Doyle CJ, Prior, Lander and Martin JJ).
[61](2002) 81 SASR 395.
[62]Ibid 423–4 [73]–[76] (emphasis added).
Jurists, academics and the New South Wales Law Reform Commission have assumed that s 16A(2)(g), which copied s 10(g) of the South Australian Act, was introduced for the same purpose, namely to require the plea to be taken into account independently of any subjective attributes such as remorse.[63] Unfortunately our attention was not drawn to the South Australian provisions, and in particular s 10(g), or to the fact that the provision has consistently been construed as requiring a discount for the utilitarian benefit of the plea.
Section 4 — Penalties and Sentences Act 1985 — now s 5(2)(e) of the Sentencing Act 1991
[63]Kathy Mack and Sharyn Roach Anleu, ‘Sentence Discount For A Guilty Plea: Time for a New Look’ (1997) 1 Flinders Journal of Law Reform 123, 125 n 13; New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996).
In 1985 the Victorian Parliament enacted the Penalties and Sentences Act 1985. Section 4 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 sub-section (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.
In Morton the Full Court of the Supreme Court of Victoria construed s 4. In the joint reasons the following was stated:[64]
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 fact of 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. 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 s 4, 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 s 4 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.
[64][1986] VR 863, 867–8 (emphasis added) (citations omitted).
Subsequent Victorian cases have reiterated the opinion that the legislation, subsequently re-enacted as s 5(2)(e) of the Sentencing Act 1991, was intended to ‘encourage pleas of guilty’ by allowing a discount for the pragmatic effect of the plea.[65] As Charles JA succinctly put it in R v Donnelly: ‘the State itself benefits from the guilty plea’.[66]
[65]See R v Giakas [1988] VR 973, 978 (Young CJ, Crockett and Marks JJ).
[66][1998] 1 VR 645, 649 (Charles JA). See also Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Thomson Reuters, 2nd ed, 1999) [3.814]–[3.815].
In Phillips the joint reasons of Redlich JA and Curtain AJA, with which Maxwell P and Harper JA agreed, drew upon the observation of McHugh and Kirby JJ in Cameron as to the wide practice of Australian courts to give substantial discounts to those who plead guilty even when the plea is not accompanied by any remorse or contrition.[67] They then said:[68]
At common law, it can therefore be said that there has been a very broad and long-standing acceptance that a sufficient and necessary rationale for the public interest in providing a discount for a plea of guilty is its utilitarian benefit and that there is no requirement that there be present any of the subjective criteria before the discount is allowed.
[67](2012) 37 VR 594, 608 [47].
[68]Ibid 609 [48].
Nettle JA also recognised in Phillips the practice of allowing a discount for the utilitarian benefit of the plea. He observed that the law in Victoria has long been that a sentencing judge must take into account a plea of guilty in every case, regardless of whether it reflects remorse and contrition, though there are exceptional circumstances in which it is proper to give such a plea no weight at all.[69]
[69]Ibid 602–3 [24].
For more than 30 years since Morton, pleas of guilty, whether to State or Commonwealth offences, have consistently been treated in Victoria as worthy of a significant sentencing discount in the absence of subjective factors where the only factor to be given particular weight was the avoidance of the expense and inconvenience of a trial.[70]
[70]See, eg, R v Tasker (2003) 7 VR 128, 133 [24] (Eames JA; Winneke P and Charles JA agreeing); R v Barnes [2003] VSCA 156 [24] (Callaway JA; Buchanan and Eames JJA agreeing); R v Rainford [2003] VSCA 49 [19] (Buchanan JA; Callaway JA and Warren AJA agreeing); (2004) 141 A Crim R 579, 591 [40] (Smith AJA); R v Breary (2004) 11 VR 151, 163 [43] (Buchanan JA); R v Quarry (2005) 11 VR 337, 349 [41] (Eames JA); DPP v Adams [2006] VSCA 149 [66] (Vincent, Ashley and Redlich JJA); WCB v The Queen (2010) 29 VR 483, 497 [48] (Warren CJ and Redlich JA).
The foregoing review of the text, context and purpose of s 16A(2)(g), together with the judicial authority as to existing State legislation in the same or similar terms, leads us to conclude that at the time of its enactment, s 16A(2)(g) required a sentencing court to take account of the utilitarian benefit of a plea of guilty. It is contended by the Director, however, that the common law as it subsequently developed leads to the opposite result. Further, and in any event, the Director contends that appellate authority concerning s 16A(2)(g) requires that we reach that opposite conclusion.
To the extent that common law sentencing principles may elaborate the statutory provision, it is therefore convenient to refer to the continuing state of the law up to the time of Cameron. It will be seen that intermediate appellate courts continued to require a reduction in sentence for the bare fact of pleading guilty in recognition that the plea saved time and expense and relieved delays and congestion in the courts even when there was no consideration of remorse.[71] First, however, something should be said about the premise underlying the Director’s argument.
[71]Mack and Roach Anleu, above n 63.
Did the common law alter the meaning of s 16A(2)(g)?
Senior counsel for the Director submitted that as s 16A is not exhaustive; it can pick up common law principles, and does so to inform the terms of s 16A(2)(g). It was submitted that a review of the common law, exemplified in particular by the High Court’s decision in Cameron, shows that, whatever meaning it had when first enacted, s 16A(2)(g) was no longer to be construed as requiring, or permitting, a discount to be given for the utilitarian benefit of a plea of guilty.
It is uncontroversial that the common law may not only inform the meaning and operation of legislation but that changes to the common law that occur after a statute is enacted may broaden the scope of the statutory text. As Gleeson CJ stated in Brodie v Singleton Shire Council, legislation and the common law ‘exist in a symbiotic relationship’.[72] It is another thing to suggest, as the Director does, that the common law has altered the meaning of the relevant provision in this case so as to restrict its purpose by precluding consideration of the utilitarian benefit of the plea.
[72](2001) 206 CLR 512, 532 [31].
In Cameron Kirby J recognised that all States and Territories by legislation, and the Commonwealth by s 16A(2)(g), had addressed in various ways the approach to be adopted, and procedures to be followed, where a person is to be sentenced who has pleaded guilty to a criminal charge. In that regard Kirby J stated, citing R v ThomsonandHoulton,[73] that ‘it is the first obligation of the sentencing judge to conform to such legislation’.[74] Kirby J then said, citing Wong,[75] that ‘no rule of the common law, nor any judicial practice, may contradict valid legislative prescriptions.’.[76]
[73](2000) 49 NSWLR 383, 388 [11] (‘Thomson and Houlton’).
[74]Cameron (2002) 209 CLR 339, 358 [65(1)].
[75](2001) 207 CLR 584, 609–11 [67]–[73] (Gaudron, Gummow and Hayne JJ), 627–35 [118]–[140] (Kirby J), 643 [167] (Callinan J).
[76]Cameron (2002) 209 CLR 339, 358 [65(1)].
Spigelman CJ stated in Sharma that the joint reasons in Cameron did not call into question the legislative authority of the State to enact legislation that might be in part discriminatory by virtue of giving a person who pleads guilty a lesser sentence than one who does not, on that account alone.[77] Nor did the reasons in Cameron contain any suggestion that Federal Parliament could not enact a provision, the purpose of which was to oblige the sentencing court to take account of the utilitarian benefit of the plea even though it might appear to mean that a person who pleads not guilty is treated more harshly as a result.
[77](2002) 54 NSWLR 300, 315 [67].
The Director’s submissions run counter to these authorities by suggesting that the common law has operated to give s 16A(2)(g) a more confined meaning than it previously had. But for the reasons that follow, we do not in any event accept that the common law has altered the meaning to be given to s 16A(2)(g).
Further legislative measures prior to Cameron
As more jurisdictions adopted statutory provisions addressing the relevance of a plea of guilty to sentencing, it became harder to discern what ongoing part, if any, was played by the common law. In order to address the Director’s argument, and to identify the true implications of the decision in Cameron, it must be assumed that intervening case law can be seen as bearing on the common law.
At much the same time as pt 1B of the Crimes Act was contemplated, the Report viewed the Victorian Penalties and Sentences Act 1985 as providing evidence that a ‘discount’ for a bare plea of guilty was ‘working well’.[78] In 1990 s 439 of the Crimes Act 1900 (NSW) was introduced. This section was re-enacted, in substantially the same form, in s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section, as it originally stood, provided:
[78]Australian Law Reform Commission, above n 24, 93 [173].
22(1)In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take 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 decisions.
(4)The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
The construction of s 439 and its successor, s 22, was considered in 2000 by the New South Wales Court of Criminal Appeal in Thomson and Houlton.[79] The Court promulgated a guideline judgment with respect to the discount for a plea of guilty in relation to State offences. Spigelman CJ (with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed) reviewed the position under all State, Territory and Commonwealth jurisdictions and by reference to the provisions of s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[79](2000) 49 NSWLR 383.
Spigelman CJ quoted at length from the State Attorney-General’s explanation for the provision during the 1990 Second Reading Debate of the Bill which became the forerunner of s 22(1). The Attorney-General stated:[80]
Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community.
[80]New South Wales, Parliamentary Debates, Legislative Assembly, 4 April 1990, 1690 (John Dowd), quoted in Thomson v Houlton (2000) 49 NSWLR 383, 387–8 [9].
Spigelman CJ noted that the appropriateness of a discount for a plea of guilty was reflected in legislation of all Australian jurisdictions, apart from Tasmania.[81]
[81]He referred to: Criminal Law (Sentencing) Act 1988 (SA) s 10(g); Sentencing Act 1995 (WA) s 8(2); Sentencing Act 1991 s 5(2)(e); Penalties and Sentences Act 1992 (Qld) s 13; Sentencing Act (NT) s 5(2)(j); Crimes Act 1900 (ACT) s 429A(1)(u); Crimes Act 1914 (Cth) s 16A(2)(g).
Later in Sharma Spigelman CJ with the concurrence of Mason P, Barr, Bell and McClellan JJ further construed s 22. He said:[82]
In R v Morton, 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 s 439 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 s 439.
…
The Crimes (Sentencing Procedure) 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.
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.
… 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.
[82](2002) 54 NSWLR 300, 310–12 [45]–[52] (citations omitted).
The general principles stated in Thomson and Houlton were enumerated and reaffirmed in R v Borkowski.[83]
[83](2009) 195 A Crim R 1, 10 [32] (Howie J; McClellan CJ at CL and Simpson J agreeing).
None of the State provisions in question contain words of limitation as to how ‘the fact’ of the plea is relevant. They do not specify the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence. As already observed, intermediate appellate courts have considered that the absence of words of limitation or purpose leads 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’.[84]
[84]Morton [1986] VR 863, 867 (Young CJ, King and Beach JJ); Sharma (2002) 54 NSWLR 300, 310–11 [46] (Spigelman CJ); Phillips (2012) 37 VR 594, 609 [49] (Redlich JA and Curtain AJA); R v Place (2002) 81 SASR 395, 423–4 [75] (Doyle CJ, Prior, Lander and Martin JJ); Rigby v Western Australia [2005] WASCA 134 [36] (Le Miere AJA).
Continued statements of the law as to utilitarian benefit
Since the enactment of the legislation considered above, courts have continued to explain the significance of a plea of guilty by reference to, among other things, the utilitarian benefit of such a plea. It is not essential to decide whether these statements reflect the common law. To the extent that they do so, however, they do not assist the Director’s argument.
In Siganto v The Queen[85] a majority of the High Court[86] upheld an appeal against sentence because it was difficult to avoid the conclusion that the sentencing judge had treated the distress of the victim at having to give evidence in the criminal proceedings as a matter of aggravation as a consequence of the applicant having pleaded not guilty.[87] In doing so the majority affirmed the well-established bases for taking into account the mitigatory effect of the plea of guilty:[88]
[85](1998) 194 CLR 656 (‘Siganto’).
[86]Gleeson, Gummow, Hayne and Callinan JJ, Gaudron J concurring in this aspect of the judgment though dissenting on unrelated grounds.
[87]Ibid 665 [27].
[88]Ibid 663–4 [22] (emphasis added).
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. On the other hand, 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. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
The joint reasons later continued:[89]
It is proper for a sentencing judge to observe, in a particular case, that circumstances which might otherwise attract leniency are absent. A trial judge’s reference to the absence from the case of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation.
Towards the conclusion of the joint reasons they said:[90]
To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometimes be misunderstood as intending the latter. However, the distinction can be important.
[89]Ibid 664 [23].
[90]Ibid 667 [34].
In AB v The Queen,[91] Gummow and Callinan JJ recognised that the offender’s acknowledgement of the offences he had committed and his knowing waiver of his rights was relevant not only to a question whether he was truly contrite or not, but to other matters of public interest, which were described as follows:[92]
Those matters are that child complainants would be spared the ordeal of a trial and cross-examination; the importance to children that the truth of their allegations has been vindicated; the State has been spared the trouble and expense of a long trial or trials and further extradition proceedings; and the desirability and public interest in the encouraging of the full revelation of all criminality by any extraditable persons and the waiving by them of their extradition rights.
[91](1999) 198 CLR 111
[92]Ibid 131 [52].
Kirby J also referred to the general significance of the pleas of guilty and to the fact that this saved exposing the appellant's victims to the burdens of giving evidence at a trial and saved public expense and delays in the criminal list in the hearing of cases which must proceed to trial, citing Bond and Winchester.[93]
[93]Ibid 147 [97].
Thomson and Houlton is the most often cited decision on the relevance of the plea of guilty to sentence. We have referred to how the Court construed s 22 but the analysis of the law by Spigelman CJ is also instructive. He said with the concurrence of the other members of the Court that it had ‘long been the practice’ to mitigate a sentence for plea of guilty on three bases, contrition, witness vulnerability and its ‘utilitarian value to the efficiency of the criminal justice system’.[94] The Chief Justice observed that this long standing practice had been validated by the High Court in Siganto.[95] His Honour quoted the passage from Winchester set out earlier in support of these propositions. It being clear that s 22 of the Crimes (Sentencing Procedure) Act 1999 required a court to give effect to those bases for mitigating the sentence, the reasoning thereafter focussed upon whether the Court should provide a guideline and whether the discount for contrition and the utilitarian benefit should be separately quantified by a sentencing judge. Spigelman CJ came down emphatically in favour of separate quantification of the pragmatic considerations which provide the primary basis for rewarding an early plea of guilty, stating:[96]
The benefits to the criminal justice system as a whole, which flow from the plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender … Rather, they are collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgement of some character by way of an incentive, so that the benefits will in fact be derived by the system.
[94](2000) 49 NSWLR 383, 386 [3] (Spigelman CJ).
[95]Ibid 386 [4].
[96]Ibid 411–12 [115].
Spigelman CJ recognised that aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. He recognised that the public interest served by encouraging pleas of guilty for the utilitarian value was a distinct interest.
In Victoria, Callaway JA in R v Duncan, without attempting to be exhaustive, expounded principles relating to the plea of guilty, which relevantly included:[97]
7.In the case of a plea of guilty it is necessary to distinguish between the plea as indicating contrition or some other quality or attribute that is relevant to sentencing and the plea in its own right, but again the public interest is important.
8.A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount.
9.An early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount, for the reasons explained by Hunt CJ at CL in R v Winchester (1992) 58 A Crim R 345 at 350 and by King CJ in R v Shannon (1979) 21 SASR 442 at 451. See also R v Morton[1986] VR 863 at 866–8.
10.In a time of rising sentences, in conformity with community concerns to which Parliament has given expression in legislation, the discount for pleading guilty should be more rather than less.
[97][1998] 3 VR 208, 215.
The Queensland Court of Criminal Appeal in R v Bulger[98] also affirmed that administrative expediency resulting from a guilty plea is a sufficient basis for moderation in sentencing. The Court followed a previous decision of R v Davis[99] in which it was recognised that the benefits of the administration of criminal justice deriving from a timely plea warranted a reduction in sentence even in a case which was unarguable. Then in R v McQuire [No 2][100] McMurdo P observed that the criminal justice system recognises that a plea of guilty is a mitigating factor even when not accompanied by remorse, quoting a passage from R v Corrigan[101] to the same effect.
[98][1990] 2 Qd R 559, 564 (Byrne J; McPherson and Moynihan JJ agreeing).
[99](1980) 2 Cr App (S) 168.
[100](2000) 110 A Crim R 348, 363 [89].
[101][1994] 2 Qd R 415, 416, 419.
McHugh J, though in the minority in Cameron, made the following observations as to the state of the general law:[102]
Australian courts have enthusiastically embraced the proposition that a person who pleads guilty should receive a lesser sentence that one who pleads not guilty and is convicted. In so far as a plea of guilty indicates remorse and contrition on the part of the defendant, the courts have long recognised it as a mitigating factor of importance. But in recent years, under the pressure of delayed hearings and ever increasing court lists, Australian courts have indicated that they will regard a plea of guilty as a mitigating factor even when no remorse or contrition is present. They have taken the pragmatic view that giving sentence ‘discounts’ to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces court delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.
[102]Cameron (2002) 209 CLR 339, 350–1 [39] (citations omitted).
The observations of Kirby J in Cameron concerning the public interest served by facilitating pleas of guilty, though in dissent on other issues, are redolent of the theme of the judgment of King CJ in Shannon to which we have referred. He expounded the state of the law in these terms:[103]
(5)In some of the older judicial authorities, the chief or the only basis advanced for a discount for a plea of guilty was that it evidenced contrition, repentance and remorse on the part of the prisoner. The basis for affording a discount in a sentence on this footing was the oft stated belief that such a response indicated the intention of the prisoner to reform and not to re-offend. To that extent, remorse could vindicate one of the basic purposes of the system of criminal justice. Cases do exist where, upon apprehension, a prisoner expresses genuine and believable regret. However, judges have lately expressed doubt as to the extent to which pleas of guilty really proceed from such motives. … The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, ‘remorse’ is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.
[103]Ibid 359–61 [65(5)]–[68] (citations omitted).
The consideration of the public interest
The main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.
Given that under our criminal justice system it is the right of the accused to put the State to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim's family and friends the ordeal of having to give evidence.
Second, the respondent said, in his supplementary submissions to this Court, that the Director had overemphasised the mass of a drug as a significant factor in sentencing; rather, it was but a ‘relevant’ factor in the instinctive synthesis.
Third, the respondent said that there were significant aspects of the cases relied upon by the Director which made them unhelpful as comparable offences. In both Agboti and Ng, the sentencing judge had referred to or had been referred to a ‘starting point’ in determining an appropriate sentence. Such an approach was contrary to principle. In Lam, no issue of manifest excess arose; the issue was whether there had been a denial of procedural fairness in that the sentencing judge had not accepted the factual substratum of the report given by the psychologist.
Fourth, the respondent submitted that the Director had relied upon sentences imposed for the importation of a marketable quantity of a border controlled drug, which are not comparable. In fixing a sentence, it was said that it is contrary to principle to have regard to the sentences imposed for a different offence ‘with different elements and a different maximum penalty’.
Fifth, the respondent contended that the Director’s supplementary submissions failed to give any sufficient account as to the various matters which the judge treated as mitigatory.
Finally, the respondent said that the Court should exercise its residual discretion not to intervene. First, he said that the case advanced on appeal was significantly different from that advanced on the plea. Second, he said that the present case was a test case as to whether the decision in Phillips was good law. The respondent had pleaded guilty on the basis that he would be entitled to a discount in accordance with that case.
Analysis
The principles governing sentencing for drug importation offences have been referred to in the reasons in the case of Thomas and it is not necessary to repeat them here. A sentence that is longer or shorter than any sentence previously imposed for the same offence is not necessarily manifestly inadequate or excessive. As we have said in the appeal of Thomas, reference to comparators will not support such a conclusion unless it can be shown that, having regard to the relevant sentencing considerations and the degree to which the sentence differs from comparable cases, the conclusion that there has been some misapplication of principle in the sentencing task is warranted.[311] In those circumstances the sentence will be found to bear no appropriate relativity to the identified comparators.[312]
[311]Pham (2015) 325 ALR 400, 406 [28(7)] (French CJ, Keane and Nettle JJ); Wong (2001) 207 CLR 584, 605–6 [57]–[58] (Gaudron, Gummow and Hayne JJ); Hili (2010) 242 CLR 520, 538–9 [58]–[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), 543–4 [75]–[76] (Heydon J).
[312]Nguyen v The Queen [2016] VSCA 198 [72] (Redlich JA).
The maximum penalty, taken with other relevant factors, provides a yardstick against which a sentence is to be considered.[313] The maximum penalty prescribed for the present offence is life imprisonment, reflecting the seriousness that Parliament attaches to this conduct. This was a ‘rolled-up’ count encompassing two separate consignments each of which involved a commercial quantity and which, taken together, was more than five times the commercial quantity. The degree of criminality of the respondent was greater than for a single importation.[314]
[313]Markarian v The Queen (2006) 228 CLR 357, 372 [30]–[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[314]R v Richard [2011] NSWSC 866 [65]; R v De Leeuw [2015] NSWCCA 183 [116]; Watson [2016] VSCA 73 [110].
The cases of Agboti,[315] Ng[316] and Lam,[317] referred to in Thomas, were cited in Wu by the Director. As noted above, these cases involved the importing of a commercial quantity of a border controlled substance where the commercial quantities were significantly less than in the present case, but significantly higher sentences were imposed.
[315](2014) 246 A Crim R 72.
[316][2010] NSWCCA 232.
[317][2015] NSWCCA 143.
In Agboti and Ng, the offence was a one-off incident. In the present case, there were two separate consignments. In those cases, the role of the offender (as a courier) was less than that in this case. In Ng, the offender received a 25 per cent discount for a plea of guilty at an early stage reflecting the offender’s intention to facilitate the course of justice. Those cases, and the various cases cited therein, and the further decisions of Peng,[318] Webber v The Queen,[319] Hui v The Queen[320] and Gow,[321] cited by the Director on appeal, and a summary of which is annexed to these reasons, involve a range of sentences well above that imposed in this case.
[318][2014] VSCA 128.
[319][2014] NSWCCA 111 (‘Webber’).
[320][2015] VSCA 314 (‘Hui’).
[321](2015) 298 FLR 397.
For the reasons given in the Thomas appeal, we reject the respondent’s contention that it is not permissible to take account of cases concerned with a lesser offence or cases that possess different features to the subject case in seeking to identify the available range. As senior counsel for the Director submitted, they may be just as instructive as like cases.
Possessing or importing a marketable quantity of a border controlled drug involves a maximum penalty of 25 years’ imprisonment. As we said in the appeal of Thomas, sentencing patterns for that offence are relevant to the present contention that the sentence for importing a commercial quantity is manifestly inadequate. Sentences for a lesser offence or a case which has different features may, as the Director rightly contends, also serve to inform the range of sentences available .
Indeed, a consideration of the range of sentences applicable to a marketable quantity, as illustrated in those cases cited in Thomas, such as OPQ,[322] Lau[323] and Harrington,[324] reflect that the sentence imposed in this case is manifestly inadequate. The cases of R v Harris,[325] El-Ghourani v The Queen,[326] Youssef v The Queen,[327] and Director of Public Prosecutions (Cth) v Merrill (a pseudonym),[328] as set out in the annexure, are equally relevant to the consideration here.
[322](2012) 221 A Crim R 424.
[323][2011] VSCA 324.
[324](2016) 11 ACTLR 215.
[325][2009] QCA 370 (‘Harris’).
[326](2009) 195 A Crim R 208 (‘El-Ghourani’). The discount at plea was said by the sentencing judge to have only been 15 per cent because of the limited utilitarian value. The basis of the reduction was not an issue on appeal as the Court dismissed the complaint that the sentence was manifestly excessive: at 212.
[327][2011] NSWCCA 104 (‘Youssef’).
[328][2015] VSCA 52 (‘Merrill’).
There were mitigating factors. The respondent did not have a criminal record; on the contrary, he appears to have been of good character before the present offending. He will also find incarceration particularly burdensome. Further, recent riots in the prison resulted in his being locked down for extended periods of time. He has no relatives here: his family is in Hong Kong. The judge appears to have accepted the submission made on the plea that it was only after his arrival in Australia that the respondent agreed to facilitate the arrival of the shipments. He was paid the relatively moderate sum of $10,000 per shipment.
There is nothing about these matters personal to the respondent which warrants a sentence which falls so far below the range applicable for this category of seriousness of the offence. He has been convicted of importing over 5 times the commercial quantity of a border controlled drug. The need for general deterrence is very great. Would-be importers of drugs need to know that they will pay a very heavy price for their offending. That has been the policy of all courts to date.
The impugned sentence is in our opinion egregiously inadequate. We are driven to conclude that in one or more respects the sentencing judge must have misapplied relevant sentencing principles. The respondent’s conduct was indispensable to the importation of the two consignments and, as the judge found, was more serious than that of a mere courier and at the ‘higher end of the lower range of seriousness’.[329] His precise role and relationship with others within the enterprise was unknown to the sentencing judge. Having regard to the maximum penalty, other relevant sentencing principles, and, in particular, general deterrence and the pattern of sentencing for this level of gravity of the offence, the imposition of a much higher sentence was required.
[329]Wu Reasons [43].
Residual discretion
We turn then to the respondent’s contention that we should exercise the residual discretion to decline to interfere with the sentence below even though it is manifestly inadequate.[330] As was made clear in the recent High Court decision of CMB, the onus is on the Crown to ‘negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised’.[331]
[330]Green v The Queen (2011) 244 CLR 462.
[331](2015) 317 ALR 308, 316 [34] (French CJ and Gageler J), 321–2 [56] (Kiefel, Bell and Keane JJ) (‘CMB’), quoting R v Hernando (2002) 136 A Crim R 451, 458 [12] (Heydon JA; Levine J and Carruthers AJ agreeing).
The respondent points to two matters which, it is submitted, are relevant. First, it is submitted that this case is a ‘test’ case about whether or not the decision in Phillips remains good law. The respondent submits that he pleaded guilty upon advice that was predicated on the fact that the guilty plea discount would be afforded to him as propounded in Phillips and in circumstances where the sentencing judge applied Phillips.
As her Honour gave the discount for the utilitarian benefit of the respondent’s plea of guilty and, as we have concluded, she was entitled to do so, the respondent’s expectation in that regard has not been disturbed on appeal. The Director’s second ground of appeal is distinct from the first and called for discrete consideration of the adequacy of the sentence imposed, albeit that a particular of that ground concerned the weight that the judge attached to the plea of guilty.
The respondent secondly submits that the case advanced against him on appeal was significantly different than that advanced on the plea and that the judge did not receive the assistance to which she was entitled from the prosecutor.
The sentencing judge was provided with a schedule of cases for commercial quantities that was also relied upon during the hearing of the appeal. In her sentencing remarks, the judge observed that the schedule did not contain a great range of cases because the prosecution was only relying upon appellate court decisions, not all of them were specific to methamphetamine, and most related to the role of mere courier.[332] Her Honour distinguished the case of Lam in which an intermediary had received 11 years for 3 consignments.[333] Ultimately her Honour concluded that she could not rely on the cases brought to her attention by the prosecutor ‘for a close comparison’.[334]
[332]Wu Reasons [54].
[333][2015] NSWCCA 143.
[334]Wu Reasons [59].
As we said in Thomas, a sentencing judge is not confined to the information provided by the prosecutor and nothing stated by her Honour suggests that she regarded herself as so circumscribed. The way in which we have approached our analysis of the pattern of relevant sentences has in large part been gleaned from the same material which was available to her Honour. While further clarification was sought from the Crown as to how such cases were to be relied upon, and by way of supplementary submissions some additional comparable cases were cited, we do not accept that the Director was advancing a different or inconsistent argument to that raised on her behalf at first instance that should lead us to decline to intervene.
Resentence
We would allow the appeal on ground 2 and resentence the respondent to 10 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months.
- - -
Annexure
Marketable quantity cases
In OPQ v The Queen[335] this Court dismissed an appeal against a sentence of 6 years’ imprisonment with a non-parole period of 3 years and 6 months for offending involving the attempted possession of 561 grams of border controlled drugs that had been imported into Australia with a street value of up to $846,712. The offender’s role was characterised as ‘a trusted intermediary’[336] of the drug syndicate and his plea was not entered at the first available opportunity (no percentage was specified as to the reduction given on that account). Factors taken into account included that prison would be more onerous due to HIV and a minor reduction to take into account the principles in R v Verdins.[337]
[335](2012) 221 A Crim R 424.
[336]Ibid 427 [15] (Neave JA; Maxwell ACJ agreeing).
[337](2007) 16 VR 269.
In Lau v The Queen[338] this court dismissed an appeal against a sentence of 9 years’ imprisonment with a non-parole period of 6 years for importing 709.8 grams of pure methamphetamine where the appellant’s role was one of a courier; he had no prior convictions and pleaded guilty at the earliest opportunity. The amount was in the upper range of marketable quantity.
[338][2011] VSCA 324.
In Harris v The Queen[339] the Queensland Court of Appeal dismissed an appeal against a sentence of 7 years’ imprisonment with a non-parole period of 4 years for attempting to possess 1489.7 grams of cocaine. The Respondent’s role was more limited than that of a courier as she was merely a ‘post box’[340] to receive drugs and pass them on. The street value of the drugs was $2 million and the offending was for a financial motive. The Court found that the plea of guilty was not early and declared that but for the plea a head sentence of 8 years would have been imposed.
[339][2009] QCA 370.
[340]Ibid [19] (A Lyons J; McMurdo P and Atkinson J agreeing).
In El-Ghourani v The Queen[341] the New South Wales Court of Criminal Appeal upheld a head sentence of 9 years’ imprisonment with a non-parole period of 6 years for the importation of 181.5 grams of pure heroin. The plea was not at the earliest opportunity. A 15 per cent reduction was given for that factor. The appellant’s role was to arrange receipt of drugs in Australia and it was characterized as more than a ‘mere cog’.[342]
[341](2009) 195 A Crim R 208.
[342]Ibid 212 [9] (Spigelman CJ; James and Simpson JJ agreeing).
In Youssef v The Queen[343] the New South Wales Court of Criminal Appeal upheld a head sentence of 7 years and 8 months’ imprisonment with a non-parole period of 4 years and 8 months for importing drugs weighing 573.6 grams pure. The appellant had no priors and his role was a courier who left Australia to bring drugs back. The street value of the imported drugs was up to $1,147,000. There was a 30 per cent reduction for an early plea (at the Local Court) and assistance.[344]
[343][2011] NSWCCA 104.
[344]In NSW if there is a plea and assistance with the authorities a combined discount is often given: R v Sukkar (2006) 172 A Crim 151, 166–8 [50]–[56] (Latham J; McClellan CJ at CL and Howie J agreeing) (usually no more than 45–50 per cent for an early plea and assistance of the highest order).
In Merrill v The Queen[345] this Court upheld a Crown appeal against a first instance sentence of 42 months to be released on a RRO after serving 14 months for trafficking 688.8 grams pure methamphetamine. The Respondent was resentenced to 6 years’ imprisonment with a non-parole period of 4 years despite having no priors and significant mitigating factors. The Respondent’s role was characterised as intermediary. The plea was entered in the County Court but there is no indication of the extent of the reduction on that basis.
[345][2015] VSCA 52.
Commercial quantity cases
In Ng v The Queen[346] the offender pleaded guilty to importing 2445 grams of heroin (1.63 times the commercial quantity). The offender was characterised by the sentencing judge as an ‘importer’ and not a ‘mastermind’.[347] The respondent was sentenced to 11 years and 3 months’ imprisonment, with a non-parole period of 7 years 3 months. Leave to appeal against the sentence was granted, but the appeal was dismissed.
[346][2010] NSWCCA 232.
[347]Ibid [5] (McClellan CJ at CL; R S Hulme and Davies JJ agreeing).
Two County Court cases were referred to specifically by the prosecutor on the plea in the case of Thomas — Chau[348] and Liu.[349] Both cases were said to involve individuals who had arrived in Australia, and subsequently arranged to be at an address or arranged to collect a parcel after their arrival. In Chau the offending related to two charges amounting to a total amount of 2.3 kilograms of methamphetamine, or 3.09 times the commercial quantity, where the offender’s role was found to be greater than a mere courier. The offender received a sentence of 6 years and 6 months on the first charge, and 6 years on the second, with a total effective sentence of 7 years and 4 months, following a guilty plea at the earliest stage.
[348]Unreported, County Court of Victoria, Judge Lawson, 29 April 2014.
[349]Unreported, County Court of Victoria, Judge Harbison, 18 September 2014.
In Liu the offender had travelled from Hong Kong to Australia on a holiday, but had agreed to collect a package in return for around $6700. The package, which had been intercepted and substituted, contained 3.79 kilograms of methamphetamine, or 5.05 times the commercial quantity. The offender received 7 years’ imprisonment with a non-parole period of 4 years and 6 months.
In Banker v The Queen[350] the Court dismissed an appeal by the offender against a sentence of 12 years’ imprisonment with a non-parole period of 8 years for an offence of importing 4117.1 grams of methylamphetamine (5.5 times the commercial quantity). The offender was convicted by a jury. He was sentenced on the basis that he was a courier. He was 70 years old.
[350][2016] QCA 74.
In R v Peng[351] the Crown appealed against the sentence imposed upon Peng for importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code. Following a plea in the County Court on 2 September 2013, Peng was sentenced as to 11 years’ imprisonment with a non‑parole period of 7 years and 6 months. In allowing the appeal and resentencing the respondent to 13 years’ imprisonment with a non-parole period of 10 years, Nettle and Redlich JJA (with whom Priest JA agreed) said:[352]
As the sentence stands, it is in our view manifestly inadequate. Peng played a critical and extensive role in the importation of a very large commercial quantity of a border controlled drug. His precise role in the criminal enterprise is unknown, although the Director has at all materials [sic] times accepted that he fell within category 3 of De La Rosa. But, looking at the categories of offending as set out in the judgment of Maxwell P in Nguyen v R and having regard to the quantity of drugs involved in this case and the significance of Peng’s role, he could well have been placed in category 2. It was not in issue that he stood to make a substantial profit from his role, though the amount was not disclosed.
[351][2014] VSCA 128.
[352]Ibid [39] (citations omitted).
In Webbe v The Queenr[353] the applicant was convicted, after a plea of guilty, of various offences including the offence of importing a commercial quantity of cocaine contrary to s 307.1 of the Criminal Code. The gross weight of the cocaine was 3280.7 grams with a calculated pure weight of 2219.3 grams. A commercial quantity of cocaine is 2 kilograms. For that offence, he was sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years. In that case, Fullerton J (with whom Hoeben CJ at CL and Adamson J agreed) doubted that the applicant’s role should be described as at the ‘lower end’ of criminality for importations of a commercial quantity of a border-controlled drug. The applicant was able to converse with his principals, to arrange for delivery and collection of the drugs and to respond immediately to the strategy that the police were deploying.[354]
[353][2014] NSWCCA 111.
[354]Ibid [47].
In Gow v The Queen[355] the respondent was sentenced for importing a commercial quantity of cocaine. The importation involved packages of cocaine weighing just over 4 kilograms, constituting 2.3 kilograms of pure cocaine. He was sentenced to 8 years’ imprisonment with a non-parole period of 5 years. On a Crown appeal, the Court (Basten JA, with whom Hamill J agreed, Garling J dissenting) concluded that the sentence imposed was not manifestly inadequate (but was lenient and at the low end of the range).[356] The offending involved a one-off incident.
[355](2015) 298 FLR 397.
[356]Ibid 410 [53].
In Hui v The Queen[357] the applicant pleaded guilty to one charge of importing a marketable quantity of a border controlled drug and one charge of trafficking a commercial quantity of a border controlled drug. On the first charge, he was sentenced to 5 years’ imprisonment and, on the second charge, 6 years, with 6 months to be served concurrently. The total effective sentence was 7 years and 6 months with a non‑parole period of 6 years. An appeal on the ground that the sentence was manifestly excessive was partially allowed. This Court fixed a new non-parole period of 5 years and 6 months. However, the appeal that the head sentences were manifestly inadequate was dismissed.
[357][2015] VSCA 314.
In Agboti v The Queen[358] the applicant pleaded guilty to one count of importing a commercial quantity of methamphetamine. The gross weight of the substance was 2944.6 grams, the pure weight of methamphetamine being 2326.5 grams, with an average purity of 79 per cent. The sentence imposed by the Court of Appeal was 9 years and 6 months with a non-parole period fixed at 4 years and 6 months. The judgment does not nominate the reduction for the plea of guilty which was referred to as an early plea.[359] The Court referred to R v Jain,[360] in which case a courier imported 1.559 kg of heroin using a false passport. The offender, 28, was a former businessman with no prior convictions. He exhibited remorse and had good prospects of rehabilitation. He was sentenced to a term of 10 years’ imprisonment, with the Court of Appeal reducing the non‑parole period to 7 years. The Court also referred to R v Ong[361] (Buchanan and Redlich JJA and Kaye AJA), in which the offender pleaded not guilty to importing 1.88 kg of heroin. The heroin imported exceeded a commercial quantity by approximately 0.38 kilograms. He was a 48 year old Vietnamese migrant who had served 8 years in custody for a prior drug conviction. No finding was made as to his role in the importation scheme. A Crown appeal against a sentence of 15 years’ imprisonment with an 11 year non-parole period was dismissed. The Court also referred to the decision of the Queensland Court of Appeal in Tran.[362] In Tran the offender on appeal was sentenced to 10 years’ imprisonment with a non-parole period of 5 years for importing a marketable quantity of heroin (slightly under a commercial quantity). There was a plea of guilty entered at the first reasonable opportunity to an ex officio indictment (although the reduction was not specified). He made full admissions on the day he was arrested.
[358](2014) 246 A Crim R 72.
[359]Ibid 75 [15], 84 [53] (McClellan CJ at CL; R S Hulme and Davies JJ agreeing).
[360][2004] VSCA 30.
[361](2007) 176 A Crim R 366.
[362](2007) 172 A Crim R 436.
In Ng v The Queen[363] an application for leave to appeal because the sentence was manifestly excessive was granted, but the appeal dismissed. The applicant pleaded guilty to one count of importing a commercial quantity of heroin and was sentenced to a term of imprisonment of 11 years and 3 months’ with a non-parole period of 7 years and 3 months. The threshold commercial quantity for heroin was 1.5 kilograms. The pure quantity of the heroin imported was 2.445 kilograms. There was a 25 per cent reduction on the basis of a willingness to facilitate the course of justice by the plea of guilty. R S Hulme J, in dissent, thought the sentence was too lenient. He said:[364]
A review of prior decisions carried out in R v Wong & Leung (1999) 48 NSWLR 340 led the Chief Justice to the conclusion that 8 to 12 years was an appropriate range for sentences for couriers who imported between 1.5 and 3.5 kilograms of heroin. An earlier review of such cases that I had carried out in R v Spiteri [1999] NSWCCA 3 at [22]–[33] led me to the view that the appropriate range of sentences for couriers importing 1½–3 kilograms of heroin fell between 9¼ and 11½ years. While there were obvious differences between the circumstances of many of the couriers encompassed within those reviews, it can fairly be said that the range covered what may be described as the normal run of such offenders. The Applicant imported 2.445 kg and there is nothing [in] the circumstances of the Applicant or his offence to take him out of the normal range’.
[363][2010] NSWCCA 232.
[364]Ibid [29].
In Lam v The Queen[365] the applicant pleaded guilty to one count of importing a commercial quantity of a prohibited drug, namely 2.8959 kilograms of heroin, contrary to s 307.1(1) of the Criminal Code. The threshold commercial quantity of heroin under the Criminal Code is 1.5 kilograms. The Court of Criminal Appeal upheld a sentence of 11 years’ imprisonment with a non-parole period of 7 years. The case involved three consignments. The appeal did not allege manifest excess.
[365][2015] NSWCCA 143.
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