Phillips v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0314
CHRISTOPHER EDWARD PHILLIPS	Appellant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NETTLE, REDLICH, HARPER JJA and CURTAIN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 March 2012
DATE OF JUDGMENT	29 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 140
JUDGMENT APPEALED FROM	[2010] VSC 359 (Whelan J)

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CRIMINAL LAW – Sentence – Guilty plea to murder – Weight to be attributed to guilty plea – Analysis of relation between discount for guilty plea and utilitarian benefit of plea – Whether strength of Crown case impacts on objective dimensions of guilty plea – Relevance of remorse and other subjective considerations to guilty plea – Objective and subjective dimensions of guilty plea distinguished – When strength of Crown case may impact on subjective dimensions of guilty plea – Relevance of length and complexity of potential trial to evaluation of mitigating effect of guilty plea – Appellant sentenced to total effective sentence of 23 years’ imprisonment and non-parole period of 19 years – Manifest excess – No different sentence imposed despite specific error – Appeal dismissed – R v Pajic (2009) 23 VR 527 considered; R v Thomson; R v Houlton (2000) 49 NSWLR 383 and R v Donnelly [1998] 1 VR 645 and other case law referred to; R v Hall (1994) A Crim R 454 distinguished; Sherna v R [2011] VSCA 242 discussed – Sentencing Act 1991 ss 5(2)(e) and 6AAA considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	James Dowsley & Assoc
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA and Curtain AJA. For the reasons which their Honours give, I too would dismiss the appeal.

Their Honours’ judgment contains an illuminating analysis of the matters bearing upon the determination of the sentencing discount to be given for a plea of guilty. I respectfully agree with their Honours’ summary of the applicable considerations.

NETTLE JA:

This is an appeal from a total effective sentence of 23 years’ imprisonment with a non-parole period of 19 years imposed on the applicant on pleading guilty to the murder of his father, Douglas Phillips. The appellant was sentenced as a serious violent offender.[1] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the appellant’s plea of guilty, he would have sentenced the appellant to 26 years’ imprisonment with a non-parole period of 23 years.
[1]Sentencing Act 1991, s 6D.

The facts

The appellant had a significant history of problems with drugs and alcohol. His mother died in 1997 when he was 24 years of age and, after her death, he regularly stayed with the deceased. But he intimidated the deceased and sometimes he threatened him. Occasionally, he also damaged the deceased’s house by ripping palings from the fence and smashing windows and other property.

The deceased decided to sell his house and buy a unit at a retirement home. That meant the appellant had to move out. The deceased explained his intentions to the appellant and offered to help him with a rental bond or by buying furniture for him.

On Saturday 6 June 2009, the appellant’s brother, Cliff, went to the deceased’s house to help him clean up and prepare the house for inspection. Cliff had a discussion with the appellant about how the appellant would have to move house. The appellant appeared not to be troubled by the need to move out and left some time later.

After the appellant had gone, the deceased showed Cliff a knife and said that the appellant had left it there. There had been an incident in the street the night before and the deceased believed that the appellant was involved in it. Later, Cliff and the deceased went to the rubbish tip before returning to the house at about 1.30pm. At that point, Cliff departed leaving the deceased alone in the house.

At approximately 4.15pm, the appellant was seen walking from the house. He went into a supermarket close by and took some alcohol without paying for it. He walked to the car park and smashed a six-pack of stubbies. The owner of the supermarket, Michael Cai, spoke to the appellant who appeared drugged and emotional. The appellant said: ‘He is dead, he is dead’, as he pointed in the direction of the deceased’s house.

The appellant then walked back to the house and smashed things in front of the house for about five minutes before going into another store nearby and telling an employee: ‘Call an ambulance, I’ve just stabbed my father’.

After that, the appellant walked down another street and met Craig Fraser, whom he had known for some 30 years. The appellant told Mr Fraser: ‘I’ve smashed up a shop and stuff, and I’ve killed my old man’. Mr Fraser said: ‘Are you serious?’ and the appellant replied: ‘Yep, I made sure’. Mr Fraser saw blood on the appellant’s hands and shoes. The appellant told Mr Fraser that he had called ‘000’ and the police were coming. Then the appellant walked off down the street.

The appellant went to two more friends’ houses. At the second house he spoke to Brian Collins. He told Mr Collins: ‘I’ve shived me dad’. Then he started crying and said: ‘I think I’ve killed my dad’ and ‘We had a fight, he pushed me. I hit him and kicked him. I stabbed him about eight times’. Mr Collins drove the appellant to the Frankston Police Station where he was taken into custody.

The appellant was twice interviewed by police. After the first interview on 6 June 2009, he was examined and found to be unfit to be further interviewed until 8.00 am the following day. On 7 June 2009, he underwent a second interview. On that occasion, he admitted that he had killed the deceased. He claimed that the deceased had started a fight with him and treated him like a big joke and that it had caused him to lose control. He also claimed that the deceased used to beat his mother and that thought was going though his mind when he killed the deceased.

The appellant had three prior convictions from 2000 to 2004 for violence against the deceased. There were also two further incidents for which the deceased sought medical treatment but for which the appellant was never charged.

Grounds of appeal

There are two grounds of appeal. The first is that the judge erred in his assessment of the weight to be given to the appellant’s plea of guilty. The second is that the sentence is therefore or in any event manifestly excessive.

Weight attributed to plea

In the course of his sentencing remarks, the judge said that:

You have pleaded guilty, but the significance of that circumstance must be tempered by the fact that once mental impairment was excluded the case against you was overwhelming. I will nevertheless discount your sentence and the non-parole period.
You have shown some remorse but your prospects of rehabilitation are, in my view, not great. There is a pressing need to protect the community from you.[2]

The judge’s s 6AAA declaration shows that the judge gave a discount of 11.5%.

[2]R v Phillips [2010] VSC 359, [21]–[22] (‘Reasons’).

Counsel for the appellant contended that it can be seen from the passage of the judge’s sentencing remarks just cited that, because his Honour perceived the strength of the Crown case to be overwhelming, he gave less discount for appellant’s plea of guilty than would otherwise have been the case. In counsel’s submission, the strength of the Crown case is irrelevant to any aspect of the discount to be allowed for a plea of guilty; alternatively, if it is at all relevant, it is relevant only to an assessment of the extent of the applicant’s remorse, and the judge erred by treating it as if relevant not only to the extent of the applicant’s remorse but also to the utilitarian value of the plea.

Evidently, the judge did temper the discount which he allowed for the appellant’s plea of guilty by reference to his assessment of the strength of the Crown case. But I am not sure that his Honour did any more in that regard than take the strength of the Crown case into account in his determination of the extent of the appellant’s remorse; and, on that basis, conclude that, although there was some remorse, it was limited.

If so, there was no error in it. It accorded with principles recently restated by Redlich JA in R v Pajic,[3] as follows:

Section 5(2E) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case.[4] Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent.[5] Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.[6]
It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations.[7] And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea[8] and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice.[9] The discount for his plea of guilty was not to be reduced because of the strength of the Crown case. That is so because the utilitarian benefit of the plea could not be affected and, on the proper contextual analysis, neither could the level of contrition to be attributed to the appellant by virtue of the plea.

[3](2009) 23 VR 527, 532 [19]–[20] (‘Pajic’).

[4]See R v Donnelly [1998] 1 VR 645, 648.

[5]Siganto v The Queen (1998) 194 CLR 656, 663–4 [22]–[23] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[6]R v Shannon (1979) 21 SASR 442, 452; R v Ellis (1986) 6 NSWLR 603, 604; R v Winchester (1992) 58 A Crim R 345, 350 (Hunt CJ at CL).

[7]See R v Thomson; R v Houlton (2000) 49 NSWLR 383, 416 [137]–[138] (Spigelman CJ); R v Cameron [2005] NSWCCA 357, [22]–[24].

[8]R v Thomson; R v Houlton (2000) 49 NSWLR 383.

[9]Cameron v The Queen (2002) 209 CLR 339, 346, [22].

Of course, if the judge did take the strength of the Crown case into account in his assessment of the utilitarian value of the plea then, according to the preponderance of authority, his Honour was in error. But I must say that, apart from authority, I am unable to see why that should be so.

There is no reason in principle. The strength of the Crown case bears on the chances of the offender being convicted. According to our perception of utility, it avails society for the offender to be convicted. It is, therefore, in the interests of society to afford a greater discount on sentence if the Crown case is weak than where it is strong. That reality should be reflected in the sentence. It accords with the principle that a sentencing judge assess the discount to be allowed for a plea of guilty and make plain what has led her or him to that conclusion.[10] It is consistent with the evident statutory purpose of s 6AAA of the Sentencing Act 1991. It is contrary to both to settle for an arbitrary percentage allowance for a plea’s utilitarian value regardless of reality.
[10]R v Gallagher (1991) 23 NSWLR 220, 230 (Gleeson CJ).

Nor are there insurmountable practical difficulties. A sentencing judge is better placed than most to make an assessment of the strength of the Crown case and, in practice, he or she will do so routinely as the result of reading the depositions and other documents in readiness for the plea in mitigation of penalty. Arguably, such an assessment is problematic, but no more so than a host of other findings and assessments which sentencing judges are bound to undertake. For example, it is far less fraught than the assessment of remorse and contrition and, conventionally, that is taken to be unexceptionable.

There is equally little reason in policy to pretend that the utilitarian value of a plea does not vary according to the strength of the Crown case. It was suggested in argument that, if it were known that the discount for a plea of guilty could vary according to the strength of the Crown case, it might deter guilty offenders from pleading guilty. But I doubt that. It is too simplistic and it gives too little credence to our conception of remorse and contrition. And, even if it were so, it would still be an insufficient justification for maintaining the status quo. Parliament might be persuaded that there is good reason to provide that the discount for pleading guilty must not vary according to the strength of the Crown case. If so, it could enact the appropriate legislation. But, absent such a legislative imperative, for the court to countenance an arbitrary percentage discount regardless of reality is in truth to prefer the quasi-legislative paradigm of a two-part sentencing process to the principles of intuitive synthesis by which we are bound.[11]
[11]R v Gallagher ibid, 223–230 (Gleeson CJ); Wong v The Queen (2001) 207 CLR 584, [65] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 374–5 (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 534 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), and 542–3 [74]–[78] (Heydon J); Green v R (2011) 283 ALR 1, 10 [28]–[29] (French CJ, Crennan and Kiefel JJ).

Nonetheless, we are constrained by authority and, as Pajic shows and Redlich JA demonstrates even more forcefully in his reasons in this case, too much has now been said in New South Wales to the effect that the utilitarian value of a plea must not be judged according to the strength of the Crown case, and too much of what has been said in New South Wales on that score has been followed in this State, for this court to depart from it. If the position is to be rectified, it will need to be done elsewhere.

Finally, mention was made in argument of whether there are ever circumstances in which, despite a plea of guilty, a sentencing judge is justified in refusing to allow a discount for it. The question does not arise in this case but it should not be thought that there is any doubt about it. The law in this State has long been that, although a sentencing judge must take into account a plea of guilty in every case, regardless of whether it reflects remorse and contrition, there are exceptional circumstances in which it is proper to give such a plea no weight at all. The position was explained by Crockett and Southwell JJ in R v Hall,[12] as follows:
[12](1994) 76 A Crim R 454, 469–470 (‘Hall’).

A plea of guilty is a mitigatory factor. Moreover, it is statutorily stated to be so. See s 4(1) of the Penalties and Sentences Act 1985 (Vic) replaced by s 5(2)(e) of the Sentencing Act 1991 (Vic). The latter provision (which is that now in force) states that:
In sentencing an offender a court must have regard to—
…
(c) whether the offending pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so.

Both provisions were obviously intended to act as an inducement to an offender to enter a plea, furthermore, an early plea, in return for a lesser penalty than otherwise might have been expected to have been passed: see Morton.[13] A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the ‘eleventh hour’ and is made in a case of overwhelming strength may attract no reduction in sentence … (Emphasis added).

[13][1986] VR 863, 867; (1986) 23 A Crim R 433, 437.

The position was confirmed by Charles JA, in R v Donnelly,[14] thus:

I do not intend to convey that a plea of guilty must always result in a sentencing discount: cf Wangsaimas, Vanit and Tansakun v R.[15] The law is merely that the judge must have regard to the plea and the stage in the proceeding at which it was entered or an intention to plead indicated. Nor do I say that a judge is bound to accept a Crown concession that there should be a discount in sentencing in consequence of a plea, although ordinarily one would expect the judge to give reasons for not acting on such a concession.

[14][1998] 1 VR 645, 649 (‘Donnelly’); cf R v Brazel (2005) 153 A Crim R 152, 161 [29].

[15](1996) 87 A Crim R 149, 171.

Manifest excess

Under the heading of Ground 2, counsel for the appellant argued that, whether or not the judge erred in tempering the discount allowed for the plea of guilty according to the strength of the Crown case, the sentence of 23 years’ imprisonment was manifestly excessive having regard to the appellant’s age and antecedents, intellectual capacity, depleted personal circumstances, the effects of his alcohol and drug dependence, his genuine remorse and contrition, current sentencing practices and comparable cases.

I do not think that submission to be persuasive. As the judge said, this was a shocking, violent attack on a basically defenceless old man who had shown generosity and indulgence towards the appellant. The appellant had been violent towards the deceased in the past and the appellant’s previous time in prison had proved inadequate to rectify his pattern of offending. Given the nature and gravity of the crime, the appellant’s moral culpability, the consequent need for denunciation, general deterrence and specific deterrence, and current sentencing practices applicable to serious violent offenders, I am not persuaded that the sentence imposed was beyond the range of the proper exercise of sentencing discretion.

Conclusion

In the result, I would dismiss the appeal.

REDLICH JA

CURTAIN AJA:

Christopher Edward Phillips pleaded guilty to the murder of his father, Douglas Barry Phillips, and was subsequently sentenced to 23 years’ imprisonment with a non-parole period of 19 years.

By leave granted on 11 August 2010, he now appeals that sentence on the grounds that it is (1) manifestly excessive; and (2) that the sentencing judge erred in not giving sufficient weight to the plea of guilty.

As noted by Nettle JA,[16] Whelan J in sentencing the appellant said as follows:

You have pleaded guilty, but the significance of that circumstance must be tempered by the fact that once mental impairment was excluded, the case against you was overwhelming. I will nevertheless discount your sentence and the non-parole period for your guilty plea.
You have shown some remorse, but your prospects for rehabilitation are, in my view, not great. There is a pressing need to protect the community from you.[17]

[16]See above [15].

[17]Reasons, [21]–[22].

The appellant, relying upon the following passage from the judgment of Redlich JA in Pajic, contends that the sentencing judge used the strength of the Crown case impermissibly, by tempering the fact that the appellant pleaded guilty because the Crown case against him was overwhelming:

Section 5(2) (e) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case. Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent. Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.
It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations. And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice. The discount for his plea of guilty was not to be reduced because of the strength of the Crown case. That is so because the utilitarian benefit of the plea could not be affected and, on the proper contextual analysis, neither could the level of contrition to be attributed to the appellant by virtue of the plea.[18]

[18]Pajic [19]–[20] (citations omitted).

The appellant contended that the sentencing judge made one or both of the errors identified in Pajic. Firstly, the strength of the Crown case could have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations.[19] Secondly, the strength of the Crown case could not relevantly support a conclusion that there should be a reduction in the discount to be allowed for the plea as his Honour had found the appellant to be remorseful and there was no evidence which cast doubt on the extent of his remorse or his willingness to facilitate the course of justice.[20]
[19]Ibid [20].
[20]Ibid.

Under cover of ground 2, two primary issues thus emerged for consideration.

(1) May there be circumstances where the discount to be allowed for the objective pragmatic benefits of a plea (the ‘objective criteria’) should be reduced because of the strength of the Crown case?
(2) Can the strength of the Crown case alone warrant a reduction in the discount to be allowed for remorse, willingness to facilitate the course of justice and acceptance of responsibility (the ‘subjective criteria’) or must there be other contextual material that reveals the extent to which these subjective factors are present?

Although Pajic has now been followed in numerous cases,[21] it was submitted that in light of certain dicta in this court[22] and the earlier authority of R v Gray[23] and Hall,[24] certain propositions stated in Pajic should not be followed or require qualification. For this reason a Full Bench was assembled.
[21]R v Fisher (2009) 22 VR 343, [81]; R v RLP [2009] VSCA 271, [42]–[44]; Andrick v The Queen [2010] VSCA 238, [35]; Ciantar v The Queen; Rose v The Queen [2010] VSCA 313; [31]; Chalmers v The Queen [2011] VSCA 436, [51]; Cliffard v The Queen [2011] VSCA 56, [16] (9 March 2011).
[22]Giordano v The Queen [2010] VSCA 101, [43]; Sherna v R [2011] VSCA 242, [88].
[23][1977] VR 225 (‘Gray’).
[24][1994] 76 A Crim R 454.

Summary of conclusions

For the reasons which hereafter appear, the following are the relevant matters which should inform a determination of the extent of the discount to be given for a plea of guilty:

1. A discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case.
2. The exceptional case arises where the gravity of the offending conduct is of such an order that no discount from the maximum sentence is appropriate.
3. The strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea.[25]
4. A greater discount for the utilitarian benefit may be justified where the plea involves very considerable savings of costs to the community or where some other very significant benefit can be seen to flow from the plea.
5. It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.
6. Where there is evidence or a submission accepted by the sentencing judge as to the unqualified existence of these subjective criteria, they should be fully reflected in the discount.
7. The utilitarian benefits which flow from the plea may also inform the extent of the discount to be allowed for the offender’s willingness to facilitate the course of justice.
8. The weakness of the Crown case, if apparent, may also inform the extent of the offender’s willingness to facilitate the course of justice.
9. The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit of the plea and the subjective criteria, unless there is reason to conclude that less than the full discount should be allowed for the subjective criteria.
10. The strength of the Crown case can only support an inference that these subjective criteria played little or no, role in the decision to plead guilty where the state of the contextual evidence on the plea permits such a conclusion.
[25] Chalmers v The Queen [2011] VSCA 436, [51].

Discount for the plea of guilty

It is now well settled that the plea of guilty is a matter to be properly taken into account in mitigation of sentence. In Siganto v The Queen[26] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.[27]

[26](1998) 194 CLR 656.

[27]Ibid 663–4 [22].

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.[28] The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty.[29] 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.[30] 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.
[28]Cameron v The Queen (2002) 209 CLR 339, 351.
[29]Ibid 361: ’[I]t 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.’
[30]Ibid 360–1.

These considerations are not to be undervalued when an offender is charged with very serious offences which in most cases will attract very substantial sentences of imprisonment. The allowance to be made for the mitigatory effect of the plea will be a matter of profound importance to the offender who will be incarcerated for at least the length of the non parole period and may have to serve all of the head sentence. Any substantial sentence of imprisonment will almost always require a significant discount of some years for the plea of guilty.

In the New South Wales Court of Appeal in R v Thomson, R v Houlton[31] and the South Australian Court of Criminal Appeal in R v Place[32] five judges considered the character of the sentencing process being followed in allowing a discount for a plea of guilty. Notwithstanding their recognition that the instinctive synthesis is the preferred approach to sentencing,[33] both cases adverted to the fact that the allowance of the discount could be viewed as involving a ’two-stage’ approach in arriving at a sentence.[34] They concluded that the preponderance of Australian authority was to the effect that it is always permissible and sometimes desirable for the sentencing judge to quantify the discount accorded for a plea of guilty.[35] In Victoria there is now a statutory imperative in s 6AAA of the Sentencing Act 1991 (Vic) which requires the judge to state the sentence that would have been imposed had the offender pleaded not guilty.
[31](2000) 49 NSWLR 383, 396–411 [54]–[113].
[32](2002) 81 SASCR 395, [49]–[56].
[33]Wongv The Queen (2001) 207 CLR 584, [75]–[76]; Markarian v The Queen (2005) 228 CLR 357, 374–5 (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 533–4; Green v The Queen; Quinn v The Queen (2011) 283 ALR 1, [28]–[29].
[34]The process whereby an ’objective’ sentence is first determined and then ’adjusted’ by some mathematical value given to the plea of guilty.
[35]R v Thomson, R v Houlton (2000) 49 NSWLR 383, 411 [109] ( Spigelman CJ); R v Place (2002) 81 SASCR 395, 446 [48].

The methodology of the sentencing judge in arriving at the instinctive synthesis does not remain a secret, known only to the sentencing judge. In Markarian v The Queen,[36] Gleeson CJ, Gummow, Hayne and Callinan JJ cautioned against treating the ‘instinctive synthesis’ as authorising reasoning which was not accessible. McHugh J in Markarian stated that the sentencing judge should identify all the factors that are relevant to the sentence, before making the value judgment as to what is the appropriate sentence.[37]
[36](2005) 228 CLR 357.
[37]Ibid 378 [51].

Although the discount allowed for a plea of guilty is part of the intuitive process followed by the sentencing judge, that has never been understood to mean that the extent of the discount, expressed qualitatively rather than quantitatively, or the reasons for it may be concealed.[38] Transparency of the reasoning process as to the discount of the sentence that has been allowed flows from the obligation cast upon the judge in each case to give reasons for the sentence passed.
[38]The extent of the discount varies between jurisdictions. In NSW it appears to be in the order of 20–25%; in WA, 30–35%; 25% in SA and 10–33% in NZ. In the United Kingdom, the Sentencing Guidelines located in Appendix 8 of Blackstone’s Criminal Practice 2008 (Oxford University Press, 2008) 3021 [4.2] provide that the level of reduction will be gauged on a sliding scale ranging from 33% where the plea was entered at the first reasonable opportunity, to 10% where it was entered at the door of the court.

The objective criteria – the utilitarian benefits of the plea

The joint reasons of McInerney and Crockett JJ in Gray[39] identified many of the pragmatic benefits of a plea of guilty. The oft used phrase that a sentencing judge has a wide discretion ‘in interpreting the quality and sentencing implications of a plea of guilty’[40] first appeared in their joint judgment. They considered it was a matter for the sentencing judge what mitigatory effect it had. But where the plea was ’tainted overmuch by self interest’ they doubted the extent to which it would avail the accused.[41] As the Full Court was to later recognise in R v Morton,[42] the suggestion in Gray that the utilitarian benefit may be affected where an accused’s self-interest is completely dominant, required substantial qualification particularly because there was at that time no statutory imperative to provide a discount for a plea of guilty.
[39][1977] VR 225.
[40]See, eg, DPP v Nguyen [2010] VSCA 31, [28].
[41]Gray 232.
[42][1986] VR 863.

Even before there was statutory intervention in this area, King CJ in R v Shannon[43] drew attention to the need for the courts to provide practical encouragement for guilty persons to admit their guilt. He said:

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.[44]

[43](1979) 21 SASR 442.

[44]Ibid 451.

Some seventeen years after Gray and following the introduction of statutory provisions, Crockett and Southwell JJ in Hall[45] described as ‘rare’ the circumstance in which the plea would not have some mitigatory effect. Not long after Hall, Callaway JA, without attempting to be exhaustive, expounded principles relating to the plea of guilty in R v Duncan, which relevantly included:

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 for 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 ACrimR 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.[46]

[45]Hall 470.

[46][1998] 3 VR 208, 215.

The public interest to which Callaway JA referred and the weight which is to attach to the utilitarian value of a plea of guilty was not qualified by reference to the strength of the Crown case. R v Duncan was followed in the case of R v Majeric[47] where, in the face of a strong Crown case and despite the absence of remorse, Chernov JA with whom Callaway and Buchanan JJA agreed said:

it was quite appropriate for his Honour to give a sentencing discount taking account of, principally, the utilitarian value of the plea, namely, the saving to the community of the expense and inconvenience of a long trial and the encouragement of guilty persons to plead to their crimes.[48]

[47](2001) 121 A Crim R 451, [33].

[48]Ibid [33] (citations omitted).

The separate judgments of McHugh J and Kirby J in Cameron v R[49] advert to and explain the justification for 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.[50] As Kirby J observed:

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.
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.
All of the foregoing are reasons why it is normally in the public interest to encourage a plea of guilty to a criminal charge whilst recognising, in its ’full strength’, the rule that the accused is entitled to plead not guilty, to put the prosecution to the proof and cannot be punished more severely for having exercised these rights. The considerations that I have mentioned are not separate categories, or sub-rules, of the applicable principle. They are merely illustrations of aspects of the public interest to which the law of sentencing pays regard following a plea of guilty.[51]

[49](2002) 209 CLR 339.

[50]Ibid [42] (McHugh J); [65]–[68] (Kirby J) (citations omitted).

[51]Ibid (Kirby J).

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.[52]
[52] R v Winchester (1992) 58 A Crim R 345, 350.

This common law position was eventually reflected in and mandated by statute. The legislature of this State has made it obligatory for a sentencing court to have regard to such considerations. The relevance of such a plea was addressed in s 4 of the Penalties and Sentences Act 1985 which provided that a court may take into account in fixing a sentence that a person has pleaded guilty. In R v Morton[53] the Full Court described it as

leading 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.[54]

[53][1986] VR 863.

[54]Ibid 867.

Section 5(2)(e) of the Sentencing Act1991 replaced s 4 of the Penalties and Sentences Act 1986 and, by use of the word ’must’, compels sentencing judges to take into account a plea of guilty and the time at which the plea was entered or intended to be so. Following R v Morton it was settled that a discount for the utilitarian benefits of the plea must in all but rare cases be allowed to reflect Parliament’s intention.

Section 6AAA of the Sentencing Act 1991 further requires that if the sentencing judge, by reason of the plea, has determined that a less severe sentence should be imposed, the judge must state the sentence and non-parole period, if any, that would have been imposed but for the plea of guilty. The second reading speech makes plain that this provision was intended to encourage admissions of guilt by making transparent the benefit of doing so. However the use of the word ’if’ in s 6AAA(1) reflects the legislature’s recognition that it will not always be appropriate to impose a less severe sentence despite the offender’s guilty plea. The requirement that the judge have regard to the time at which the plea is entered or the intention to do so is indicated, may bear upon the extent of the pragmatic benefits and the degree to which the offender is remorseful and willing to facilitate the course of justice.[55]
[55]Cameron v The Queen (2002) 209 CLR 339, 350.

The underlying purpose of s 5(2)(e) and s 6AAA of the Sentencing Act1991 is to encourage pleas of guilty. The sentencing judge is required to have regard to the plea, because it is a potential mitigating factor. The legislative purpose is thus advanced by requiring that where the plea is so treated, there be transparency as to the discount that has been allowed. Significantly, the statutory regime has remained consistent with the position at common law in not requiring the existence of any particular motive for the plea as a precondition to mitigation of the sentence.

Is the strength of the Crown case relevant to the discount to be allowed for the objective criteria?

In New South Wales, it is recognised that it will usually be appropriate to allow the discount for the utilitarian benefits of the plea of guilty, notwithstanding the strength of the Crown case.[56] As Spigelman CJ explained in R v Thomson, R v Houlton,[57] the strength of the Crown case will have no bearing upon that part of the discount which attaches to a guilty plea which is allowed by virtue of utilitarian considerations. Later decisions of the New South Wales Court of Appeal are to the same effect.[58] For example, Howie J said in R v Petrie[59] that ’the discount for the utilitarian benefit of an early plea of guilty has nothing to do with thestrengthof the Crown case’.
[56]New South Wales, Parliamentary Debates, Legislative Assembly, 4 April 1990, 1690 (John Dowd, Attorney-General).
[57](2000) 49 NSWLR 383.
[58]R v Sutton [2004] NSWCCA 225, [11]–[25] (Howie J); R v Grbin [2004] NSWCCA 220; R v Turner [2004] NSWCCA 260; R v Brett [2004] NSWCCA 372; R v Attard [2004] NSWCCA 376; Danial v R [2008] NSWCCA 15; Dolan v R [2010] NSWCCA 10.
[59][2003] NSWCCA 208, [13].

Similiarly, Pajic is to the effect that the inevitability of conviction or the strength of the prosecution case has no bearing upon the weight to be attributed to the utilitarian benefit of the plea. Ashley JA repeated this view in Sherna v R.[60]
[60][2011] VSCA 242, [21].

Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will, save in rare and quite exceptional cases, be appropriate to reduce thesentence 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 resources have been released to other duties.[61] The plea will always have facilitated the course of justice and have its utilitarian value, irrespective of the offender’s reason for so pleading. The strength of the Crown case is thus irrelevant to the discount to be allowed for the utilitarian benefit of the plea because it does not affect the objective benefits of the plea.
[61]R v Kalache [2000] NSWCCA 2, [22] – see above n 40: New South Wales, Parliamentary Debates, Legislative Assembly, 4 April 1990, 1689 – 1690 (John Dowd, Attorney-General).

During argument, reliance was placed on the reasons of Whelan AJA in Sherna v R,[62] in a judgment delivered not long after this sentence and in which his

Honour expressed misgivings about the approach in Pajic and New South Wales. His Honour relied heavily upon the observation in the joint judgment in Hall that:[63]

A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the ‘eleventh hour’ and is made in a case of overwhelming strength may attract no reduction in sentence.

[62]Sherna v R [2011] VSCA 242.

[63]Ibid [61].

As we have already noted, the observations in Hall were modified by the Full Court in R v Morton. Later decisions of this court in R v RND,[64] R v Tasker[65] and R v Diep; R v Vosinthavong[66] are explicit that the entitlement to a discount on sentence for a plea of guilty arises irrespective of the motive for the plea. The plea is to be regarded as worthy of a significant sentencing discount even if the only relevant factor was the avoidance of expense and inconvenience of a trial.[67] Accordingly, if a defendant proffers a plea purely out of self interest in order to obtain a lesser sentence, and without any concern as to whether in so doing he or she was facilitating the course of justice, it will nevertheless constitute a mitigating factor entitling the defendant to the discount for the utilitarian benefit- even though no weight is to be given to the subjective criteria.
[64][2002] VSCA 192, [18].
[65](2003) 7 VR 128, 133–4.
[66][2003] VSCA 203, [14].
[67]R v Tasker (2003) 7 VR 128, 133–4.

Whelan AJA also referred in Sherna v R to the reasons of Charles JA in R v Donnelly[68] who, with apparent approval quoted a substantial portion from the joint reasons in Hall which included the above passage. It was not however necessary in Donnelly to consider whether a discount for the utilitarian benefits of the plea was necessary, as it was not suggested that the sentencing judge had failed to make an allowance for the utilitarian benefits of the plea and the appellant had exhibited remorse which the Crown contended should be taken into account. The sole question in Donnelly was whether the sentence was manifestly excessive.
[68][1998] 1 VR 645, 648.

There will be exceptional cases where no discount is to be allowed for the utilitarian benefits of a plea, but the circumstances contemplated in the above passage from Hall – of a late plea in the face of an overwhelming case and absent remorse- are not circumstances which could justify giving no weight to the plea.[69] Whatever the prevailing view twenty years ago as to the extent to which the utilitarian benefits of a plea of guilty had to be reflected in the sentence imposed, it is no longer open to a sentencing judge to make no allowance for the objective criteria in the plea of guilty, save in the exceptional circumstances referred to in paragraph [67] below.
[69]Ibid.

Street CJ in R v Ellis,[70] in an oft cited passage, stated that the extent of the leniency arising from the plea of guilty may vary according to the degree of inevitability of conviction but the plea is always a factor to which greater or lesser weight must be given. This contemplated that part of the discount to be allowed for the plea may be reduced because of the inevitability of conviction. His Honour did not say that it was a factor bearing specifically upon the pragmatic benefits of the plea. Similar general observations may be found in DPP v Nguyen,[71] R v Giles,[72] R v El-Ahmad,[73] R v Guthrie[74] and R v RND[75] in which the strength of the Crown case is said to be a relevant factor bearing upon the discount to be allowed. None of these cases were concerned with the narrower question whether the strength of the Crown case could affect the discount for the utilitarian benefit of the plea. Such general propositions are sometimes misapplied by sentencing judges as authorising a reduction in the discount for the utilitarian benefits of the plea.
[70](1986) 6 NSWLR 603, 604.
[71][2010] VSCA 31, [28].
[72][1999] VSCA 208.
[73][2004] VSCA 93.
[74][2006] VSCA 192.
[75][2002] VSCA 192, [18].

The strength of the Crown case may properly reduce that part of the mitigatory effect of the plea as relates to the subjective criteria but then only in certain circumstances hereafter discussed. A ’recognition of the inevitable’ may qualify the extent of genuine contrition, if conditions exist which enable such reasoning, but it does not qualify the utilitarian value of a plea. Unless the relevance of the strength of the Crown case is confined to those circumstances which permit such reasoning, the offender will be wrongly denied the benefit of the discount to which he is entitled.

The respondent submitted that, because the legislature in s 6AAA requires the quantification of the discount allowed for a plea of guilty, it is necessary for the sentencing judge to assess the utilitarian value of the plea. The Crown contends that the evaluation must include a consideration of the strength and complexity of the case, the number of witnesses who potentially would have been called and, the proposed length of the trial. Hence an assessment of the strength of the Crown case is said to be necessary in order to determine whether there ever was a likelihood of a plea of not guilty and how likely it was that the Crown would have established the offender’s guilt.

The submission conflated matters which bear upon the length and complexity of the trial with matters which bear upon the likelihood of conviction or whether he might have pleaded not guilty. Whilst the length or complexity of a possible trial may reflect the extent of the utilitarian benefit we reject the contention that the inevitability of conviction or an assessment of the likelihood of the offender having gone to trial can ever be a relevant consideration in determining the utilitarian benefit of the plea. Neither principle nor authority provides any support for those contentions. The submission misconceives the rationale for the discount to be allowed which rests upon the accused giving up his right to contest the allegation and put the Crown to its proof. The policy which underlies both the common law and statute in this area is irreconcilable with the suggestion that the sentencing court should embark upon a problematic and speculative evaluation of whether there was any real prospect that there would have been a trial or what matters might have been conceded or put in issue had there been a trial.[76] A sentencing judge should sentence the offender on the basis that had a plea of not guilty been entered, the Crown would have been put to its proof on all issues and called all of the probative evidence available to it in order to conclusively establish the offender’s guilt. The present case is a good illustration. While it may be thought that, had there been a trial, there would only have been one matter that could realistically be in issue, namely the intent of the accused, in the absence of a concession to that effect and admissions of fact the Crown would have been required to call all of the relevant evidence available on all issues.
[76]Spiteri v The Queen [2011] VSCA 33, [33].

The respondent’s submission wrongly treats the strength of the Crown case and the length and complexity of a potential trial as relevant to the same considerations. Each in quite different and specific circumstances may inform the extent of the discount that should be allowed for the plea. The strength of the Crown case, or its weakness, cannot affect the discount for the utilitarian benefits. The length and complexity of the potential trial may do so. For example, the Crown may have an overwhelming circumstantial case against an offender but it would require a very lengthy trial to establish his guilt. A greater discount for the utilitarian benefit might then be justified where the plea involves immense savings or where some other very significant benefit can be seen to flow from the plea. It may in such circumstances also demonstrate the offender’s willingness to facilitate the course of justice. The strength of the Crown case or inevitability of conviction, however, will only be relevant to the existence of the subjective criteria and only where the state of the evidence permits the inference that there is only limited or no remorse or willingness to facilitate the course of justice.

The mitigatory effect of the plea is a component of the instinctive synthesis, but the weight to be attached to it should be the result of specific and sound consideration.[77] That is not to say that it will usually be necessary or desirable for the sentencing judge to deal separately in the sentencing remarks with the allowance to be made for the utilitarian benefits separate from the allowance for subjective criteria. But if there is to be some reduction in the discount to be allowed for the subjective criteria, then it should be so stated to make clear what part of the discount has been reduced.
[77]Compare Giordano v The Queen [2010] VSCA 101, [42]–[43] where Mandie JA referred to DPP v Nguyen and the ‘wide discretion’ and the ‘intuitive synthesis.’

We were not in this appeal concerned with an offer to plead guilty to some lesser charge than that upon which the offender was indicted, where the jury has acquitted the offender of the more serious charge and convicted the offender on that lesser charge. In those circumstances there will be no utilitarian benefit derived from the offer to plead guilty. The offer may however indicate an acceptance of responsibility for the crime, remorse and a willingness to facilitate the course of justice.

The exceptional case arises where the gravity or aggravating features of the offending conduct are of such an order that even allowing the mitigatory effect of the plea, the maximum sentence remains appropriate. That is because the offender’s criminality so outweighs any circumstances of mitigation that are present.[78] For example, for the offence of murder, a sentence of life imprisonment is sometimes imposed, notwithstanding a plea of guilty, because of the degree of criminality of the offence.[79] In such cases the enormity of the offender’s criminality may be such as to require that, albeit exceptionally, the mitigatory effect of the utilitarian benefit yield to considerations of greater weight such as proper protection of the public, and the maintenance of the rule of law.[80] The exception may also arise in the case of lesser offences where imposition of the maximum sentence for that offence is considered necessary notwithstanding the plea or other mitigatory factors.

The subjective criteria of the plea – remorse, willingness to facilitate the course of justice, acceptance of responsibility

[78]See for example Wangsaimas, Vanit & Tansakun (1996) 87 A Crim R 149, 171.

[79]R v Coombes [2011] VSC 407, [86]–[90].

[80]R v Kalache [2000] NSWCCA 2, [38]; R v Thomson, R v Houlton (2000) 49 NSWLR 383, [158].

The common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition which ought normally to be given and be seen to be given real substance as a mitigating factor.[81] The Full Court in R v Morton recognised that while a plea that was motivated by self interest should be taken into account for its utilitarian benefits alone, one which was indicative of remorse or some other mitigating quality will ordinarily carry more weight.
[81]R v Kalache [2000] NSWCCA 2, [30] (Sully J).

While it is always a question for the sentencing judge whether the subjective criteria of remorse, acceptance of responsibility and a willingness to facilitate the course of justice should be inferred from a plea of guilty, courts should not be reluctant to identify criteria of contrition as inhering in the proffering of a plea of guilty.[82] The plea is usually seen as providing some indication of the presence of these subjective criteria,[83] frequently because it complements other indicia of remorse.[84] The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists.[85] Where a judge concludes that these subjective criteria do not exist, either having rejected the evidence or submissions which suggest such criteria are present or because of an absence of such evidence, no allowance will be required within the discount for these subjective criteria.[86] Where there is a finding that the subjective criteria are only present to a limited extent, the supposed discount that would otherwise have been allowed for these subjective criteria may be reduced.[87] Where the judge, without qualification, is prepared to act upon evidence or a submission that the plea reflects the presence of these subjective criteria, the discount should fully reflect the subjective criteria.[88]
[82]R v Holder & Johnston [1983] 3 NSWLR 245, 258–9 (Street CJ).
[83]Siganto v The Queen (1998) 194 CLR 656, 663–664 [22].
[84]Pajic 533 [22].
[85]R v Thomson, R v Houlton (2000) 49 NSWLR 383, 412 [118].
[86]Wangsaimas, Vanit & Tansakunv The Queen (1996) 87 A Crim R 149, 171.
[87]R v Fisher (2009) 22 VR 343, 360 [81].
[88]See, for example, Donnelly 649.

Relevance of the strength of the Crown case

The strength of the Crown case may cast doubt on the extent of an offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice and so result in a lesser discount than one would otherwise allow.[89]This proposition is unexceptionable. However care must be taken when considering whether the strength of the Crown case can support an inference that these subjective criteria played little or no role in the decision to plead guilty. That is because, whatever the strength of the Crown case, an offender may be truly remorseful and accepting of responsibility. But, as was stated in the passage from Pajic, a Crown case that is obviously weak may, if the context permits, provide cogent evidence of the existence of the subjective criteria.
[89]Ciantar v The Queen; Rose v The Queen [2010] VSCA 313, [31]; Spiteri v The Queen [2011] VSCA 33, [3] (Nettle JA), [5] (Neave JA); Lunt v The Queen; Viet Huynh v The Queen; Sazdov v The Queen; LK v The Queen [2011] VSCA 56, [16]; Giordano v The Queen [2010] VSCA 101, [43].

The state of the evidence on the plea must be such as to permit a process of inferential reasoning that the subjective criteria are only present to a limited extent. Hence in Pajic it was said that contextual facts must exist before the strength of the Crown case can tend to support the conclusion that these subjective criteria are present to only a limited extent or not at all. It will always be a question of fact whether the contextual evidence, including the strength of the Crown case, tends to show that the plea was truly motivated by remorse and a willingness to facilitate the course of justice or that it was motivated by a recognition of the inevitable.[90] In the joint judgment in Chalmers v The Queen this court said:

Where there is a dispute as to whether a plea of guilty, or an offer to plead guilty, is demonstrative of the offender’s remorse, the context in which the plea or offer is proffered will be relevant. Although the fact that the prosecution case is strong does not by itself provide a basis for concluding that a plea of guilty is not attended by genuine remorse, consideration of the context may reveal that the dominant reason for the plea was not remorse but a recognition of the strength of the prosecution case. Similar considerations may apply where an offender offers to plead guilty to a lesser offence than that for which he or she is being tried and is ultimately convicted of the lesser offence.[91]

[90]Pajic 533 [22].

[91][2011] VSCA 436, [51] (citations omitted).

In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty, will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court.[92] Where there is contextual evidence, such as a record of interview, medical reports or other evidence of the offender’s attitude to his offending which tends to indicate that the existence of these subjective matters is limited, the strength of the Crown case may be considered in conjunction with these facts to support the adverse inference that the extent of the offender’s remorse or willingness to facilitate the course of justice is limited or non-existent. If there is an absence of any evidence concerning these subjective criteria, the sentencing judge may take into account the strength of the Crown case as bearing upon the extent of the offender’s remorse or willingness to facilitate the course of justice.[93] But where there is uncontradicted positive evidence, or an assertion from the Bar table which is accepted, that such subjective criteria are present, the weight of the Crown case will not ordinarily inform the question whether the offender is remorseful, willing to facilitate the course of justice or accepting of responsibility. Hence, in Pajic and the cases which have applied that reasoning, speak of the need to have regard to the complexity of contextual evidence on the plea before an adverse inference can be drawn against the offender.
[92]R v Holder; R v Johnston [1983] 3 NSWLR 245, 259 (Street CJ).
[93]Ciantar v The Queen; Rose v The Queen [2010] VSCA 313, [31].

Some precision of approach is therefore required by the sentencing judge in complying with the obligation to take the plea of guilty into account. A less than intellectually rigorous approach creates the risk that the offender will not obtain the benefit to which he is entitled. Accordingly, as part of the duty of a sentencing judge to give reasons, express reference should be made to the fact that this factor has been taken into account.[94] Public policy requires transparency of the reasoning process. Its objectives are not achieved unless the benefit of and the justification for the reduction in the sentence is exposed. That said, it will not usually be necessary for the sentencing judge to distinguish in the sentencing remarks between the objective and subjective criteria unless it has been concluded that something less than the full discount should be allowed for one or both criteria. Where it is concluded that the discount that would usually be allowed should be moderated or disregarded, that finding and the reasons therefore should be disclosed.[95] Where circumstances permit the strength of the Crown case to be taken into account, some distinction between the subjective and objective criteria will usually be desirable to demonstrate that any reduction in the discount has been properly confined to the subjective criteria.
[94]R v Thomson, R v Houlton (2000) 49 NSWLR 383, 395 [46]–[50] (Spigelman CJ).
[95]R v Gallagher (1991) 23 NSWLR 220, 230 (Gleeson CJ).

Findings concerning the extent to which the subjective criteria are present will also be relevant to the question of the offender’s prospects for rehabilitation. It may inform the question of the offender’s reformation. The manner and extent to which it may do so does not arise for consideration in this appeal.

The facts

In June 2009, Douglas Barry Phillips was 73 years old. He was frail in the sense that he could not walk without the aid of a walking stick and suffered from diabetes. The appellant was 36. He had an older brother, Cliff, and two older half-siblings. His mother died in 1997 aged 57. Mr Phillips lived at his house in Excelsior Drive, Frankston North. The appellant lived with him from time to time. The appellant had been to gaol on a number of occasions, and his father would take him in upon his release. The appellant experienced problems with alcohol and drugs over the years, he had assaulted his father on a number of occasions and had been intimidating and threatening towards him, and destructive of his property. The appellant had breached intervention orders taken out by his father, and on three occasions his assaults had resulted in charges being laid and sentences of imprisonment being served. In these circumstances, family members were concerned about their father’s safety, and eventually, Douglas Phillips decided that he would sell the family home and purchase a unit in a retirement village. He told the appellant of his plans, and it is said that he appeared to take it well.

On Saturday 6 June 2009, the appellant’s brother, Cliff, went to his father’s house to assist with getting it ready for the sale. The appellant arrived a short time later, having been dropped off by a friend. Cliff and his father were cleaning up the back yard, and Cliff told the appellant that the house was being sold and that he would have to find somewhere else to live. Again, the appellant appeared to accept this and left the house some 30 to 45 minutes later with the friend who had earlier dropped him off. Cliff and his father continued to clean up the house, and there was some conversation between the two of them about a knife in the kitchen sink. Douglas Phillips believed the appellant had put the knife there, that it had been used in an incident the night before and that the police were looking for him. Cliff left the house at about 1.30 and, at that time, his father appeared to be in good spirits and said he was going to visit a friend.

The house in Excelsior Drive abuts the local shopping strip. At 4.15 that afternoon, a woman working at a store called Everbright, upon hearing the sound of glass smashing, saw that the windows of the Phillips’ house had indeed been smashed and saw the appellant walking from the vicinity of the house to the nearby supermarket. The appellant was known to the owner of the supermarket and, when he took some alcohol without paying for it, the owner confronted him. The appellant, who appeared to the owner to be emotional and drug-affected, responded by saying, ’He’s dead, he’s dead’, pointing to his father’s house and smashing the bottles to the ground. The owner of the store called ’000’. The appellant returned to the front of the house and was seen to smash and throw things about for about five minutes. He then stormed into the Everbright store and demanded that the sales woman ring an ambulance, saying, ’I’ve just stabbed my father’. He began throwing things around the store, including throwing a large statue at the sales woman. He then walked off and, turning down one of the streets, came upon a man he knew, who was standing in his front yard. The appellant told him, ’I’ve smashed up a shop and stuff and killed my old man’. The appellant’s hands were seen to be covered by what appeared to be dried blood. He walked off, and that man called ’000’.

The appellant then went to the home of another man he knew and told him that he had been fighting during the day, and then he walked off to another friend’s house and told him, ’I’ve shivved my dad’, and, at a later time, started crying and said to him, ’I think I’ve killed my dad. We had a fight, he pushed, I hit him and kicked him. I stabbed him about eight times’. He was told to hand himself in to the police and, indeed, that man then drove him to the Frankston Police Station.

At 4.25pm, the police attended at the house in Excelsior Drive. The letterbox was damaged and the front windows smashed. Upon gaining entry through the open back door, the police found Mr Phillips lying face-down in the loungeroom. He was unconscious and not breathing, and there was a large amount of blood beneath his body and a bloodstained shovel and knife nearby. The room was in a state of general disorder. Furniture was overturned, and in the kitchen, a cutlery tray had been tipped over. Subsequently, ambulance officers attended and could find no signs of life.

At 5.25pm, the appellant surrendered himself to the police and was taken into custody. An interview was commenced, but ceased upon it being determined by a forensic medical officer that the appellant was unfit for further interview because he was intoxicated with alcohol and drugs. The following morning, the appellant was again interviewed and told the police that the deceased had started an argument with him and was treating him ’like a big joke’, telling him to get out of the house as he was not welcome there anymore, and that this caused him to lose control; that he was angry and frustrated at the way he was treated. It appears he had attacked his father, who had been standing up, and then stabbed him with a knife taken from the kitchen drawer as he lay slumped on his side. He told the police he was out of control and that all the childhood beatings and violence towards his mother were going through his mind at the time. He also told the police that he rang ’000’ and then left the house.

A post-mortem conducted the same day determined that the deceased had suffered blunt force trauma to the head, an incised injury running from the chin to the right ear, which the pathologist opined appeared to be an attempt to cut his throat, five stab wounds which penetrated his chest and one stab wound which penetrated the heart. There were defensive injuries on both hands of the deceased. The cause of death was determined as stab wounds to the chest and abdomen.

As stated previously, the appellant, at the time of the murder, was 36 years old. He had 45 prior convictions between 1991 and 2009. He had just completed a three month sentence of imprisonment, served in the community by way of an intensive corrections order and, as at June 2009, he was on parole. His prior convictions include offences of violence: in 1994, he was convicted of intentionally/recklessly causing injury; in 1997, he was again convicted of intentionally/recklessly causing injury and assault with a weapon; and in 2006, he was again convicted of recklessly causing injury. The appellant also appears to have been convicted seven times for breaches of intervention orders, a number of which involved the deceased, and has convictions for property damage and, in one instance, robbery. The appellant had also violently assaulted his father in the past. In May 1998, his father attended hospital after being attacked by the appellant. No charges resulted. An attack in October 1999 led to a conviction in 2002 for intentionally causing serious injury, making a threat to kill, criminal damage and breach of an intervention order and unlawful assault, for which the appellant was sentenced to three years’ imprisonment with a non-parole period of 18 months. In July 2001, the deceased attended the Frankston Hospital twice on the same night as a result of separate attacks by the appellant. He was subsequently, in 2002, convicted of intentionally causing serious injury and recklessly causing injury, and sentenced to two years and six months’ imprisonment with a non-parole period of 18 months. In June 2004, his father again attended at the Frankston Hospital after an attack by the appellant, and the appellant was subsequently convicted of recklessly causing injury and sentenced to six months’ imprisonment to be served concurrently with the sentence he was previously undergoing.

The appellant’s previous dispositions have included community-based orders, sentences of imprisonment wholly suspended, one of which it appears was subsequently revoked, sentences of imprisonment actually served and most recently, in 2006, a sentence of two years’ imprisonment with a non-parole period of 12 months in respect of making a threat to kill, breach of an intervention order, possessing a controlled weapon without excuse and intentionally damaging property. By reason of the prior convictions secured in respect of intentionally causing serious injury and making a threat to kill, the appellant fell to be sentenced in this instance as a serious violent offender; and as such, the sentencing judge was compelled to regard the protection of the community from the offender as the principal purpose for which the sentence was imposed.

Was there specific error as to the weight given to the plea of guilty?

The case against the appellant was undoubtedly a strong one. It included admissions made immediately in the aftermath of the stabbing and to the police in the record of interview the following day. Mr Dann’s concession that the case against the appellant was overwhelming was properly made and there could be no complaint about his Honour’s characterisation of the Crown case as an overwhelming one. The issue is whether, in relying upon the strength of the Crown case and imposing the sentence that he did, his Honour impermissibly reduced the discount to be allowed for the objective or subjective criteria.

The appellant made admissions in the immediate aftermath of the stabbing to the sales woman, whom he also asked to call an ambulance, and to two of his friends, one of whom drove him to the police station. He surrendered himself to the police, and expressed significant remorse in his record of interview and made admissions. His Honour accepted that the appellant had expressed regret and remorse and had readily made full admissions. His Honour acknowledged that those matters were to be taken into account in the appellant’s favour in mitigation of penalty.

A plea of guilty was entered at the committal, which was not contested. It was a plea of guilty entered at the earliest stage. It saved the expense of a committal and a trial and obviated the need for any witnesses, including family members, to give evidence. The sentencing judge was invited to find that, associated with the plea of guilty to murder, was remorse. His Honour came to the view that

you have shown some remorse, but your prospects for rehabilitation are…not great. There is a pressing need to protect the community from you.[96]

[96]Reasons, [22].

Accepting the finding by his Honour that the appellant’s conviction was inevitable, his Honour was not in our opinion entitled to reduce the discount to be allowed for the plea of guilty because of the strength of the Crown case. His Honour did not seek to draw any distinction between the objective and subjective criteria and it is therefore not possible to say whether his Honour regarded the strength of the Crown case as relevant to the objective or subjective criteria. His Honour was not, with respect, entitled to reduce the discount on either basis. The discount for the utilitarian benefit of the plea was not to be reduced and no contextual basis existed which could support a conclusion that the subjective criteria were present to only a limited degree. A finding that there was only limited remorse could not be supported on the evidence. In our view specific error has been established.

It is then necessary to consider whether a different sentence should be imposed.[97]

[97]S 281(1)(b) Criminal Procedure Act 2009.

This was a brutal and violent attack upon the appellant’s 73 year old father. He had suffered blunt trauma to the head and it appears an attempt had been made to cut his throat. He had been stabbed six times to the chest and abdomen. The appellant was alcohol and drug-affected at the time (although the sentencing judge treated that as a neutral fact). By his own account, he was angry and, during the attack, the deceased was calling out for him to stop.

The appellant had a long and significant history of violence directed towards his father, yet, despite this, his father had continued to offer him shelter on the occasions that he had been released from gaol. Indeed, the appellant was on parole at the time he committed this offence, and has a significant prior criminal history, which includes offences of violence. Finally, the appellant murdered his father in his own home, on the appellant’s account, upon his father telling him he was not welcome. In these circumstances, even allowing for the appropriate discount in respect of the plea of guilty, the appellant’s admissions to the police and to others immediately after the offence, his cooperation with the police, including the fact that he surrendered himself to custody, and his regret and remorse, we would not impose a different sentence. Accordingly it also follows that we would not uphold the ground of manifest excess as it could not be said that the sentence imposed is so wholly outside the range of sentencing options as to be manifestly excessive.[98]
[98]R v Abbott 170 A Crim R 306.

The appeal should be dismissed.

HARPER JA:

I have had the advantage of reading, in draft, the judgment of Nettle JA as well as that of Redlich JA and Curtain AJA. I agree with their Honours’ conclusion that the sentence imposed was not manifestly excessive. I also agree with two

further propositions: first, that authority prevents a sentencing judge from evaluating the utilitarian value of a plea by reference to the strength of the Crown case; and, secondly, that sentencing judges must distinguish between a discount given for objectively based reasons and a discount based upon subjective factors. In this case, the distinction was not made by the sentencing judge. Like Nettle JA, however, I am not sure that the judge did any more than take the strength of the Crown case into account in his assessment of the extent of the appellant’s remorse; and the judge’s conclusion that that remorse was limited was, in my opinion, justified.

I am guided in what follows by three statements of principle. First, nobody is to be punished for exercising the right to put the Crown to its proof. Secondly, a plea of guilty always has utilitarian value. The authorities to which Nettle JA refers establish that that fact is one the inherent significance of which does not depend upon the strength of the Crown case, or upon whether or not it is accompanied by remorse or contrition. It follows, therefore, that with the exception of those extreme cases in which the level of criminality is such that not even the utilitarian value of the plea could properly be reflected in a sentencing discount, a guilty plea must attract a reduction in what otherwise would be an appropriate sentence.

The extent of that reduction may be influenced by the length and complexity of the trial which would be necessary were a plea of not guilty to be entered. I agree with Redlich JA and Curtain AJA that a greater discount for the utilitarian benefit of a guilty plea might be justified not by the strength (or, rather, weakness) of the Crown case itself, but where (for example) a very lengthy trial of a circumstantial case, even a strong circumstantial case, is avoided.[99]
[99]See [63] above.

The subjective factors of remorse, acceptance of responsibility and a willingness to facilitate the course of justice raise quite different considerations. They are matters which go in mitigation. And this brings me to the third of the principles to which I referred above.

While there is no general burden (or onus) of proof in sentencing hearings because no general issue is then joined between prosecution and offender:

Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)[100]

[100]The Queen v Olbrich (1999) 199 CLR 270, 281 [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

As the majority stated in R v Storey, ‘the sentencing decision is commonly no less important to the offender than the decision about guilt or innocence’.[101] To this I add that individual sentencing decisions are often of great interest to the general public and therefore to the media, which also places considerable significance on patterns of sentencing generally. Indeed, nothing the courts do has greater impact upon the respect, or lack of it, in which the criminal justice system is held by the public. It is very much in the interest of that system that both aggravating and mitigating circumstances are demonstrably given appropriate significance in the exercise of the sentencing discretion.
[101]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking JA, Hayne JA and Southwell AJA) (‘Storey’).

The sentencing process must therefore be informed by the intellectual rigour to which Redlich JA and Curtain AJA refer at [73] of their judgment. This is certainly no less true where remorse is raised as a circumstance of mitigation. Where remorse is relied upon by an offender, and its existence or extent is challenged by the prosecution, the burden of proving its existence or extent falls upon that offender.

It is true, as Redlich JA and Curtain AJA state at [68] above, that ‘[t]he common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition’. That principle was established, however, at a time when the offender would almost certainly not know, when the decision to plead was made, whether it would result in a discernible discount from the sentence which would otherwise be imposed. Now, given the role of s 6AAA of the Sentencing Act 1991, that discount will always be known; and, because it is known that it will be known, there is an incentive in the guilty to plead guilty – if only to attract the discount which, as the judgments in this case make clear, must be allowed for its utilitarian benefit.

It follows that such a plea may have little if any component of remorse. Yet remorse is frequently put forward as a mitigating circumstance in the expectation that the sentencing judge will simply accept that, because a plea of guilty has been entered, remorse must be present. That expectation ought not to be encouraged.

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.

But sentencing discounts, and especially significant sentencing discounts, should not be given unless the evidence supports the adoption of that course, or unless the prosecution is content to relieve the offender of the need to discharge the burden which would otherwise be upon him or her. In the past, the necessary ‘precision of approach … required by the sentencing judge in complying with the obligation to take the plea of guilty into account’[102] has not always been evident. Sentencing judges have, in my opinion, been too ready to accept the mere fact of the guilty plea, or assertions of remorse proffered from the bar table, or in the reports of psychologists and other experts by whom the offender has been seen, as a sufficient basis for a conclusion that remorse is present to an extent that warrants a discount over and above that which is to be granted on the basis of utility. As Redlich JA and Curtain AJA point out, ‘[t]he conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists.’[103]
[102]See [73] above.
[103]See [69] above.

I would add that that conduct and those statements may also be a more reliable indicator than statements from the bar table, or from the reports of psychologists and other experts. I agree with Redlich JA and Curtain AJA that ‘[i]n every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court.’[104]
[104]See [72] above.

In coming to these conclusions, I have not forgotten the words of this Court in Storey:

We have spoken of ‘proof’. Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.[105]

[105]Storey 371.

In my opinion, an assertion of genuine remorse of the kind to which I have already referred will, in cases in which the assertion is challenged by the prosecution, fall within the exceptional class. But whenever remorse is put forward as a basis for a sentencing discount of any significance the prosecution should I think consider – in the light of the situation created by the contemporary sentencing regime, including as it does s 6AAA and the discount for the utilitarian value of a plea of guilty – whether that is a matter which ought to be challenged; and if it is challenged, it will be for the offender to establish, on the balance of probabilities, that that remorse exists.

In my opinion, the public is entitled to lack confidence in any system of criminal justice in which untested assertions of remorse result in punishments the leniency of which cannot be justified except on the basis that the assertions represent the truth.

In this case, the sentencing judge held that the appellant had shown ‘some remorse’. In my opinion, this was a conclusion to which his Honour was entitled to come. The appellant’s criminal record is not that of a man who readily succumbs to meaningful, durable contrition. This includes the history of his behaviour towards his father, which carries within it no indication of a desire to overcome the sins of the maltreatment accorded in the past to someone who had shown a degree of kindness to the appellant that was remarkable in the circumstances. It is true that shortly after the fatal assault, the appellant told others that he thought he had killed his father, and then allowed himself to be driven to a police station. When he was eventually fit to be interviewed, he expressed sorrow about what he had done; but he also placed some blame upon his father for treating him ‘like a big joke’ and telling him that he could no longer live in the parental home.

When the necessary precision of approach is applied to this case, it reveals, in my opinion, no more than ‘some remorse’.

I would dismiss the appeal.

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[2012] VSCA 140

29 June 2012