R v Bridgland
[2016] SASCFC 28
•21 March 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRIDGLAND
[2016] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Lovell)
21 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - THREATS TO KILL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence. The appellant, Robert Shane Bridgland, was originally committed for trial in the District Court on four counts of aggravated threatening to kill. On the day of trial, the Information was amended to four counts of aggravated threatening to cause harm. The appellant pleaded guilty to the amended counts. The Judge imposed a sentence of imprisonment of three years, after making a reduction of 25 per cent on account of the appellant's pleas of guilty. A non-parole period of two years was fixed. It was accepted that the appellant pleaded guilty to the new offences not more than four weeks after he first appeared in court in relation to those offences.
Whether the Judge erred in failing to apply the maximum discount available pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA). Whether the Judge failed to provide adequate reasons.
Held per Lovell J (Peek J agreeing in separate reasons) (dismissing the appeal):
(1) The sentencing Judge's discretion as to the appropriate discount for an early plea is retained under section 10C of the Criminal Law (Sentencing) Act 1988 (SA).
(2) It was open for the sentencing Judge to take the view that the utilitarian purpose of section 10C had been reduced by the conduct of the appellant.
(3) The sentencing Judge used the incorrect sub-section when taking into account the circumstances of the plea.
(4) On resentencing the same sentence is imposed.
Held per Gray J (allowing the appeal):
(1) If the Judge was considering denying the appellant the full discount, he should have raised the matter with counsel during sentencing submissions.
(2) Having regard to the manner in which this Court has previously addressed the application of section 10C of the Sentencing Act, the appellant should receive the full benefit of his early guilty plea.
(3) The Judge failed to provide adequate reasons for denying the appellant the full discount.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b), s 5AA(1)(g)(iv), s 19(1), s19(2), s 85(2), s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 9(1), s 10C(2), s 10C(4), s 18A; Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA), referred to.
R v Wakefield (2015) 121 SASR 569; R v Dwyer (2015) 121 SASR 587; R v McPhee [2014] SASCFC 107; R v Capaldo [2015] SASCFC 56; R v Koch [2015] SASCFC 31; R v Copeland (No 2) (2010) 108 SASR 398; Dal Piva v Maynard (2000) 112 LGERA 165; Cameron v The Queen (2002) 209 CLR 339; R v Gorman (2002) 137 A Crim R 326; R v Seigneur (2009) 103 SASR 207; R v Daniele [2014] SASCFC 22, considered.
R v BRIDGLAND
[2016] SASCFC 28Court of Criminal Appeal: Gray, Peek and Lovell JJ
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Robert Shane Bridgland, was sentenced in the District Court for four counts of aggravated threatening to cause harm.[1] The Judge commenced with a notional sentence of four years of imprisonment. This was reduced by 25 per cent on account of the defendant’s pleas of guilty. As a consequence, a head sentence of three years of imprisonment with a non-parole period of two years was imposed.
[1] Criminal Law Consolidation Act 1935 (SA) section 19(2).
Background
On 12 June 2014, the defendant was arrested and charged with four counts of aggravated threatening to kill.[2] The counts related to his mother and his three children. Each offence was aggravated as there was a threat to use a knife.[3] Three of the offences were further aggravated as the victims were children who regularly resided with the defendant.[4] The defendant was also charged with one count of property damage.[5] On 7 October 2014, the defendant was committed for trial on the above offences.
[2] Criminal Law Consolidation Act 1935 (SA) section 19(1).
[3] Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(b).
[4] Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(g)(iv).
[5] Criminal Law Consolidation Act 1935 (SA) section 85(2).
On 10 November 2014, the defendant appeared in the District Court on the same charges upon which he was committed. The arraignment was adjourned to enable a psychiatric report to be obtained.
On 15 December 2014, the defendant was arraigned on the four counts of aggravated threatening to kill and one count of property damage and pleaded not guilty. The charges were the same charges as those with which he was originally charged. The District Court was advised that the defendant was competent to plead to the charges.
On 21 January 2015, a trial date of 18 May 2015 was fixed. On the day of trial, the Information was amended to four counts of aggravated threatening to cause harm, contrary to section 19(2) of the Criminal Law Consolidation Act 1935 (SA). The defendant pleaded guilty to the amended counts. A nolle prosequi was entered in relation to the property damage charge.
The pleas were entered on the basis of declarations filed in the Magistrates Court and served on the defendant. There was no dispute as to any of the allegations in the declarations, including the nature and content of the threats alleged by the victims. In relation to each count to which the defendant pleaded guilty, the aggravating feature of threatening to use a knife was not varied nor amended from the time he was initially charged.
On appeal, counsel for the Director of Public Prosecutions acknowledged that the offences to which the defendant ultimately pleaded were neither common law nor statutory alternatives to aggravated threatening to kill. The offences to which he pleaded were therefore not offences upon which he had previously appeared. Counsel for the Director accepted that the defendant pleaded guilty to the new offences not more than four weeks after he first appeared in Court in relation to those offences.
When sentencing, the Judge observed:
Robert Bridgland, you have pleaded guilty to four counts of threatening to cause harm. The counts relate to your mother and your three children. Each count is aggravated because you threatened to use a knife when you uttered the threats to harm your mother and your children, and further aggravated in relation to the three counts involving your children, as they were living with you at the time. Each offence carries with it a maximum penalty of seven years imprisonment.
You are 42 years of age. You have a dreadful criminal record, which includes many crimes of violence. You have been sent to prison for many of your crimes, the most recent of which was for aggravated serious criminal trespass and aggravated assault, when you were sentenced in 2010 by Kourakis J, as he then was, to three years and nine months imprisonment with a one year and 11 month non-parole period, after that sentence was reduced to account for the period of time you spent in custody.
The Judge described the circumstances of the offending as follows:
Your mother described the days leading up to your offences. As she put it, you were becoming psychotic through methylamphetamine abuse. You were clearly drug affected. You were yelling vile abuse at your neighbours. You were becoming increasingly agitated and irrational. As your mother put it, she was ‘scared shitless’ of you and did not know what was going to happen next.
Your behaviour, as described by her, was certainly very irrational and extremely frightening. You were going in and out of the house yelling and smashing things. You then yelled out from the kitchen:
I’ll fucking stab you all in the back. You’ve all fucking betrayed me, my own family. Well, there’s knives here with each of your names on it, one for I, for betraying me; one for C, one for J, one for the one in pink they call my mother, and one for my brother.
At the time your mother was wearing pink pyjamas.
By now your children were out of bed and circulating through the house. Your mother said that she was petrified for the safety of herself and the children. Your own children were also petrified of you. Your mother really believed that you were about to stab all of them. As she put it, there was nothing she could have done had you carried out your threats.
You continued to walk in and out of the house, all the while ranting and raving.
When your mother looked into the kitchen she could see, on the server, the knives that you were describing you would use on each of those you threatened.
Fortunately the police were called and you were arrested. You were conveyed from the house by ambulance, such was the unpredictable state you were in. In fact, you were detained under the Mental Health Act.
The Judge then addressed the defendant’s illness:
In a report prepared recently by Mr Fugler, a very experienced forensic psychologist, it is stated that you fully accept responsibility for having behaved in such a highly abusive and erratic manner towards your family. I accept that you are genuinely ashamed and shocked at what you did. You also acknowledge that all of the meth or ice that you were using in the lead-up caused you to have little sleep and become paranoid and directly contributed to your shocking behaviour.
Your problems can be traced back to your years as a young child, as disclosed by Mr Fugler and the other experts. You have not overcome or dealt with those problems, which have led to episodes of depression, often marked with irritability and anger. You are someone who internalises stress, which you try to block out and which, in turn, causes you to feel tense and easily aroused to over-expressions of anger. As you told Mr Fugler, you are indeed easily aroused to anger, you express yourself loudly and you have a tendency to upset others. You also accept that you become involved in physical altercations and you are argumentative. If that is your underlying makeup then mixing that with a drug such as ice is a recipe for disaster.
The Judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single term of imprisonment for all offences. The Judge then addressed the reduction that should be made on account of the defendant’s pleas of guilty:
You were originally charged with counts of aggravated threatening life. Incredibly, because you pleaded guilty to lesser offences at your trial, you are entitled to a sentencing discount of up to 40%, because the offence of aggravated threaten to cause harm is not an alternative offence to which you could have pleaded guilty when charged with aggravated threatening life.
I am not prepared to reduce your sentence by 40% because, in my view, to do so, would be so disproportionate to the seriousness of the offences and so inappropriate in this case that it would shock the public conscience. I will reduce your sentence by 25% for pleading guilty.
The Appeal
The Issue Arising
It was the defendant’s submission on the appeal that a sentencing error had occurred in relation to the reduction given on account of the defendant’s pleas. It was said that “a full 40% discount” should have been allowed.
Section 10C of the Sentencing Act provides:
Reduction of sentences for guilty plea in other cases
(1) This section applies to a sentencing court other than where section 10B applies.
(2) If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c) during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d) during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e) within 7 days immediately following—
(i) an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii) a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,
determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3) If—
(a) a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii) the court did not list the defendant's matter for hearing during that period; or
(iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(4) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b) the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) the circumstances surrounding the plea;
(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
(5) Nothing in this section affects the operation of sections 15, 16 and 17.
(6) For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
It was the submission of the Director that the discount of 25 per cent was generous in the circumstances. It was contended that a discount of 40 per cent in circumstances where the defendant: accepts all aspects of the facts alleged against him when those facts remain unchanged from the time the defendant was originally charged, accepts the aggravating features alleged against him, and only offered to plead guilty to a different lesser offence at the time of the trial, would undermine the purposes of the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA) so as to shake confidence in the administration of justice.
The Interpretation of Section 10C
The Sentencing Act prescribes that a sentencing court may reduce a sentence that it would otherwise impose by up to 40 per cent. The legislation allows for a discretion by the sentencing judge as to the amount of discount applied in each case.
Recent decisions of this Court have stressed the significance of the utilitarian benefit of the plea of guilty in determining the appropriate discount pursuant to the legislation.[6] For example, in Dwyer, Stanley J, with whom Kourakis CJ and I agreed, said:[7]
Section 10C(4) prescribes the matters which the Court must consider in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea. While the prescribed matters are not exhaustive, they do not include any consideration of the strength of the prosecution case. It is to be noted that although the prescribed factors include whether a reduction of the sentence would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of a particular defendant that it would shock the public conscience, the remaining factors are directed to the timing and the circumstances surrounding the guilty plea. To my mind, that serves to highlight the focus of the scheme established by s 10C upon the utilitarian considerations which underpin the scheme.
In discounting the notional head sentence by 25% the sentencing judge explained that he adopted a process of “instinctive synthesis”. That concept is somewhat opaque. The sentencing judge did explain earlier in his remarks that the appellant was facing a very strong prosecution case in relation to his crimes at the hairdresser’s and there was an air of bowing to the inevitable in relation to those pleas, however the pleas to the other two charges carried greater weight. Commonly, prior to the enactment of s 10C, sentencing judges would refer to the strength of a prosecution case for the purposes of fixing a percentage by which a notional head sentence would be discounted to reflect a guilty plea. But s 10C effects a change in sentencing principles. In my view, under the sentencing regime established pursuant to s 10C, the strength of the prosecution case is a factor which must carry less weight in deciding the discount for an early guilty plea. As discussed earlier, the scheme envisages that in order to obtain the maximum discount an accused person will often have to enter a plea before he or she can know the strength of the prosecution case. The scheme will operate most efficaciously the earlier the plea is entered. The sliding scale of discounts reflects this intent. Depriving an accused person of the full benefit of the discounting regime simply because he or she recognises the strength of the case against him or her so as to deprive the accused person of the full measure of the scheme, seems to me counterintuitive. After all, as I have said, the scheme operates on the basis that a defendant, in order to obtain the maximum discount for which the scheme provides, will usually have to enter a guilty plea before he or she knows the strength of the prosecution case. While I do not suggest that the strength of the prosecution case is irrelevant in all cases to fixing the appropriate discount in the proper exercise of the discretion conferred, in this case I do not consider the reasons for denying the appellant of the full benefit of the discount prescribed by s 10C are adequate. The judge did not refer to the matters prescribed by s 10C(4). Neither did he refer to the utilitarian considerations which underpin the scheme established by the section. ...
[Footnote omitted.]
The discount reflects the resource savings for the State and witnesses, and the avoidance of emotional distress to witnesses and complainants.
[6] See R v Wakefield (2015) 121 SASR 569, 582; R v Dwyer (2015) 121 SASR 587, 598-9; R v McPhee [2014] SASCFC 107, [42]-[44].
[7] R v Dwyer (2015) 121 SASR 587, 598-9.
More recently, this Court in Capaldo drew on Dwyer when observing:[8]
[8] R v Capaldo [2015] SASCFC 56, [38]-[44].
The principle of applying a discount to what would otherwise have been the appropriate sentence was discussed in Cameron. Gaudron, Callinan and Gummow JJ discussed the relevance of a plea of guilty. They referred to Siganto, in which the majority, Gleeson CJ, Gummow, Hayne and Callinan JJ, observed that a guilty plea is a matter ordinarily to be taken into account for two reasons: it is usually evidence of some remorse on the part of the offender; and the community is spared the expense of a contested trial.
In Cameron, the majority said:
... It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another’s plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
[Footnote omitted.]
Since the decision in Cameron, Parliament has amended the Sentencing Act to provide for a reduction of sentences for pleas of guilty both in the Magistrates Court and the higher courts. Section 10C provides:
...
When introducing the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA), the Attorney-General stated that the main objective of the Bill was to improve the operation and effectiveness of the criminal justice system by reducing delays in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way. He observed:
The bill provides for a graduated series of discounts for pleas of guilty. The quantum of the discounts are dependent on the timing and circumstances of the guilty plea. The earlier the plea the higher the discount. The bill restricts the conferral of discounts for late guilty pleas but permits adequate discretion to a court to ensure that defendants who may plead guilty at a late stage through no fault of their own part, or some good reason, are not unfairly prejudiced.
...
What the bill achieves is the codification of the rule that the earlier the guilty plea the greater the discount. It places some limits on the freedom of the courts in providing discounts in sentencing. The bill is not radical or revolutionary. Its major effect is to make transparent and regulate what already happens or, at least, what should be happening, in the state’s criminal courts on a daily basis.
There has been strong support in both Australia and overseas amongst law reform agencies, judges, academics and legal practitioners for a statutory scheme to encourage early guilty pleas and regulate discounts for guilty pleas. Such a reform helps tackle delay and thus assist all parties in the criminal justice process, especially victims and witnesses.
The Sentencing Act therefore recognises the utilitarian value to be placed upon a plea of guilty. The question of whether the plea demonstrates genuine contrition on the part of a defendant is of a lesser consideration than it might have been prior to the enactment of section 10C. It is clear that the intention of Parliament was to encourage defendants to plead at the earliest opportunity so that the courts could run more efficiently and so that expense would be saved. Parliament has provided that a plea of guilty at an early stage entitles a defendant to seek a substantial reduction of a sentence on the basis that the plea has saved the community expense.
One of the purposes of the Sentencing Act is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system and decreasing costs. It follows that to encourage early guilty pleas there must be a degree of certainty that offenders can be confident that, if they plead guilty at the first opportunity, their sentence is likely to be discounted substantially and, in the case of a plea not more than four weeks after the defendant first appeared in court, that reduction will be up to 40 per cent. Those advising defendants must be able to advise with some certainty that an early plea will lead to a substantial discount of their sentence. If there is no certainty, the incentive to plead guilty will be reduced and the purpose of the legislation will be defeated.
The Sentencing Act does not mandate the amount of the discount. The court has a discretion and the discount can be reduced having regard to other factors, including those referred to in section 10C(4), for example, if a disputed facts hearing occurs, many witnesses are called and the court rejects the basis upon which the defendant has pleaded. Nevertheless, where there are no circumstances of aggravation, a plea of guilty at the first opportunity should result in a discount of about 40 per cent.
[Footnotes omitted.]
The Sentencing Act recognises that a willingness to facilitate the course of justice is of itself justification for allowing a discount. Section 10C(4) of the Sentencing Act, however, permits the sentencing court to have regard to other factors. For example, while it has been held that the introduction of section 10C has reduced the weight that should be afforded to the strength of the prosecution case, this is still a relevant consideration.[9] It is relevant for the court to have regard to whether it would have been reasonable to expect a defendant to have pleaded guilty at an earlier stage, whether the defendant has shown contrition and remorse, and the circumstances of the plea.
[9]See R v Dwyer (2015) 121 SASR 587, 598-9; R v Koch [2015] SASCFC 31, [46].
Section 10C(2) fixes the upper limit of any discount and does so by reference to the stage of the proceedings at which a plea is entered in respect of an offence. Section 10C(2) does not purport to limit the circumstances that may be taken into account when determining the appropriate discount within the range fixed by section 10C(2). Similarly, section 10C(4) does not fix all of the criteria that will be relevant in determining the percentage by which a sentence is to be reduced in respect of a guilty plea. Section 10C(4) identifies six different considerations and further provides that the court “may have regard to any other factor or principle the sentencing court thinks relevant”.
Before turning to consider section 10C(4) in the context of the present proceedings, it is relevant to note section 10C(2)(d) dictates the circumstances in which a defendant may become eligible for a discount of “up to 30%”, even if he or she has pleaded guilty at some point after being committed for trial. Section 10C(2)(d) requires the defendant to satisfy the sentencing court that “he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control”. The section reflects the unambiguous purpose of the Act to discourage late guilty pleas and to facilitate cost savings and efficiencies through early guilty pleas.
The Parties’ Submissions – Adequacy of Reasons
The defendant submitted that this Court has time and time again made it clear that sentencing judges must explain the basis of a sentence.[10] A sentencing court is required to give reasons for its sentence pursuant to section 9(1) of the Sentencing Act. It was submitted that the Judge failed to give adequate reasons for not providing a 40 per cent discount to the defendant.
[10] R v Copeland (No 2) (2010) 108 SASR 398; Dal Piva v Maynard (2000) 112 LGERA 165, 170.
Counsel for the Director accepted that the Judge must provide reasons for a defendant not receiving the maximum allowable sentencing discount for his plea. It was argued that the Judge referred to the specific reasons for not providing the full discount. The Judge said that a discount of 40 per cent would be “disproportionate to the seriousness of the offences” and “would shock the public conscience”. This comment followed immediately after the Judge referred to the lateness of the defendant’s plea and the fact the defendant was only entitled to the 40 per cent discount because the new offences were not alternatives to the offences originally charged. Counsel for the Director submitted that the utilitarian benefits of the discount are drastically reduced in circumstances where a defendant delays negotiating until the morning of the trial.
The Parties’ Submissions – Entitlement to the Full Discount
The defendant submitted that, prior to the codification of discounts, it was the common law position that a full discount applied to a plea that was entered to fresh charges at the first opportunity.[11] Parliament has not limited the discount which could be imposed in the circumstances of the present proceeding. It was pointed out that only the Director has the discretion to lay fresh charges – a defendant can only offer a plea to a lesser charge.
[11] Cameron v The Queen (2002) 209 CLR 339; R v Gorman (2002) 137 A Crim R 326, 341.
Counsel for the defendant also drew attention to the fact that the Director laid the fresh Information knowing that a maximum discount of 40 per cent was available to the defendant. There was no submission made to the sentencing Judge that there should have been a lesser discount. It was argued that the Director could have laid the aggravated threatening harm charges as alternative charges to those of aggravated threatening to kill at arraignment.
It was submitted that there was nothing so unusual about this matter that warranted the provision of a lesser discount. It was argued that the plea had “unambiguous utilitarian value”, namely that it saved the community the cost of a four day trial and saved the four victims from giving evidence and being cross-examined.
Having regard to the foregoing, the defendant submitted that he should be resentenced by this Court to a sentence of four years of imprisonment, reduced to two years, four months and three weeks after the provision of a 40 per cent discount for his plea of guilty. A consequential reduction in the non-parole period was sought.
Counsel for the Director submitted that the factors referred to in section 10C(4) assume and require a degree of participation by the defendant in the sentencing process. Sections 10C(4)(b) and (e) specifically refer to the sentencing court considering whether it would have been reasonable to expect the defendant to have pleaded guilty “at an earlier stage in the proceedings” and, in respect of 10C(4)(e), whether there were “circumstances outside of his or her control”. Attention was drawn to the breadth of the term “proceedings” and the fact that the filing of a new Information, or the making of an amendment to that Information, would not constitute new proceedings.[12]
[12] R v Seigneur (2009) 103 SASR 207, 221, 239.
Section 10C(4)(c) invites an examination of “the circumstances surrounding the plea”. Unlike sections 10C(4)(b), (e) and (f), section 10C(4)(c) does not include any reference to the “proceedings”. As a consequence, it was submitted that the phrase “circumstances surrounding the plea”, must, irrespective of the meaning of the other subsections, permit consideration of events occurring before the charging of the offence the subject of the plea, including a consideration of whether the plea came about as a result of negotiations between the defendant and the prosecution and, if so, the timing of any such negotiations. It was argued that, if the circumstances surrounding the plea involved different offences being charged immediately following the provision of new and relevant declarations, the circumstances may tend to suggest that the defendant would be entitled to the full discount. However, if the circumstances surrounding the plea involved different offences being charged on the day of the defendant’s trial because the defendant had steadfastly refused to accept any responsibility for his actions and only engaged in negotiations at the time of the trial, a discount less than the maximum may be warranted. Counsel for the Director contended that the conduct of both the prosecution and the defendant is relevant to a consideration of the circumstances surrounding the plea. It was submitted that both parties are required to explore the early resolution of a matter, and that a failure to do so by either party should be taken into account for the purpose of section 10C(4).[13]
[13] See R v Wakefield (2015) 121 SASR 569, 585; R v Daniele [2014] SASCFC 22, [2].
Counsel for the Director submitted that there is a marked difference between a defendant who engages with the Crown to reach agreement on a plea to a different charge in the committal court, and a defendant who does not engage until immediately before a trial in a superior court. The value of the utilitarian benefit provided by the latter is considerably less than the former.
Finally, it was the Director’s submission that a discount of 40 per cent in circumstances where the defendant accepts all aspects of the facts alleged against him from the time he was originally charged, accepts the aggravating features alleged against him and only offers to plead guilty to a different lesser offence at the time of the trial would undermine the purposes of the Act and would shake confidence in the administration of justice.
Consideration – Inadequacy of Reasons
The defendant in the present proceeding was entitled to a discount of up to 40 per cent given the timing of his guilty plea. Section 10C of the Sentencing Act makes it plain that the court has a discretion in respect of the reduction on account of a plea of guilty. However, as Stanley J observed in Dwyer:[14]
In my view, the learned sentencing judge erred in failing to afford the appellant the entire discount permitted by s 10C(2)(b). As I have noted, the learned sentencing judge reduced the head sentence he would otherwise have imposed by reason of the appellant’s pleas of guilty by 25%. Pursuant to s 10C(2)(b) a discretion is conferred permitting the judge to reduce the appellant’s sentence by up to 30%. In my view, the learned sentencing judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum available. In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. In R v McPhee Nicholson J, with whom Vanstone and Blue JJ agreed, said:
In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.
If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.
[Footnotes omitted.]
[14] R v Dwyer (2015) 121 SASR 587, 597-8.
The Judge appeared to be unhappy with the operation of the Sentencing Act in the present proceeding, describing the prospect of the defendant receiving a 40 per cent discount incredible. The Judge identified the basis on which he awarded a lesser discount, namely that a discount of 40 per cent would “be so disproportionate to the seriousness of the offences and so inappropriate in this case that it would shock the public conscience.” The form of words chosen by the Judge allow the inference that he relied on section 10C(4)(a), as earlier extracted. However, the Judge did not in his remarks set out the particular features of the present case which distinguish it from other offending of this type. The Judge, when referring to the defendant’s previous offending, described it as “particularly serious examples of their kind”. However, the Judge did not make a similar observation in respect of the present offending. The Judge described the defendant’s behaviour as “very irrational and extremely frightening” and “highly abusive and erratic”. This description does not, without more, suggest that the offending was so serious that the defendant should not receive the full benefit of his early guilty plea, having regard to the manner in which this Court has addressed the application of section 10C of the Sentencing Act, as discussed earlier in these reasons. It follows that, in my view, the Judge failed to provide adequate reasons for denying the defendant the full discount.
Consideration – Denial of Procedural Fairness
Counsel appearing for the Director during sentencing submissions sought an immediate term of imprisonment and opposed any suspension of the sentence. Counsel accepted that the defendant was entitled to a reduction of 40 per cent for his plea – it was not submitted that the defendant should not have the full benefit of his early plea:
The defendant pleaded guilty on the morning of trial; however, in light of the amended charges I am instructed that he’s now in fact entitled to 40% discount pursuant to s.10C(2)(a) of the Sentencing Act for his pleas.
[Emphasis added.]
In light of the earlier discussed authorities on the interpretation of section 10C, it is readily understandable that neither counsel considered it necessary to specifically address whether the defendant should receive the full discount for his plea. The Judge did not raise the matter with counsel during sentencing submissions – neither was aware that it was a live issue. In my view, if the Judge was considering denying the defendant the full discount, he should have raised the matter with counsel during sentencing submissions. Nothing in the sentencing submissions provides support for the approach taken by the Judge.
Consideration – the Disposition of the Appeal
On the appeal, counsel appearing for the Director acknowledged that the prosecutor who appeared before the sentencing Judge did not make submissions in support of the defendant receiving less than the full discount. In my view, the prosecution conceded at sentencing that the defendant was entitled to a 40 per cent discount. Exceptional circumstances may justify an appellate court in permitting the Director to make a fundamental change to a concession made during sentencing submissions. In the present case, no such circumstances were identified. No evidence was put before this Court on the hearing of the appeal to suggest that the defendant had been recalcitrant, unreasonable or uncooperative prior to trial.
Having regard to the foregoing, I would allow the appeal. The charges initially laid by the Director were not proceeded with. The Director could have charged the defendant with the offences for which he ultimately pleaded guilty at an earlier stage but chose not to. In these circumstances, I do not consider it appropriate to remit the matter for the point to be further explored.
I would resentence the defendant to a notional term of imprisonment of four years. I would reduce that notional sentence by 40 per cent on account of the defendant’s guilty pleas, resulting in a sentence of two years, four months and three weeks.
Conclusion
I would allow the appeal. I would resentence the defendant to a term of imprisonment of two years, four months and three weeks and fix a non-parole period of one year, four months and three weeks. I would order that the sentence commence on 12 June 2014.
PEEK J:
I gratefully adopt the recitation of the background and facts set out in the judgments of Gray J and Lovell J.
In sentencing submissions, the prosecutor is reported as having said:
The defendant pleaded guilty on the morning of trial; however, in light of the amended charges I am instructed that he’s now in fact entitled to 40% discount pursuant to s 10C(2)(a) of the Sentencing Act for his pleas. (Emphasis added)
Like Lovell J, I consider that “entitled to 40%” is a typing error and that “entitled to up to 40%” was most likely said; or, if not said, was so understood by both counsel and the Judge. This follows from the immediate context, namely that the prosecutor was making it clear that the prosecution accepted that, in the particular circumstances that had here arisen, s 10C(2)(a) of the Sentencing Act was engaged. But that provision makes it quite clear that the entitlement is a percentage up to a maximum of 40 per cent rather than a flat 40 per cent discount; I consider it to be clear that the concession being made was that the laying of amended charges in the present case had the effect of engaging s 10C(2)(a) so that the maximum percentage of 40 per cent was available to the Judge but not that the maximum figure should necessarily be selected. The quantification of the actual discount to be imposed remained very much a live issue in this particular case and defence counsel should have realised that this was so. It was for counsel to make appropriate submissions on the topic if it were wished to do so.
There is no doubt that full weight must be given to the utilitarian benefit of pleas of guilty as explained by this Court in decisions such as Wakefield,[15] Dwyer[16] McPhee[17] and Capaldo.[18] Those advising defendants must be able to advise with some certainty that an early plea will lead to a substantial discount.
[15] R v Wakefield (2015) 121 SASR 569.
[16] R v Dwyer (2015) 121 SASR 587.
[17] R v McPhee [2014] SASCFC 107.
[18] R v Capaldo [2015] SASCFC 56, [38]-[44].
However, against the background of that very important primary consideration, the Judge retains a discretion to grant a discount of less than the maximum discount allowable. Various factors that the Judge may take into account when coming to a decision to award less than the maximum discount in circumstances such as the present are set out in s 10C(4). The point of retaining a discretion is that there may arise from time to time a combination of circumstances such that the imposition of less than the maximum discount may be justified.
In the course of his sentencing remarks, the Judge stated:
You were originally charged with counts of aggravated threatening life. Incredibly, because you pleaded guilty to lesser offences at your trial, you are entitled to a sentencing discount of up to 40%, because the offence of aggravated threaten to cause harm is not an alternative offence to which you could have pleaded guilty when charged with aggravated threatening life.
I am not prepared to reduce your sentence by 40% because, in my view, to do so, would be so disproportionate to the seriousness of the offences and so inappropriate in this case that it would shock the public conscience. I will reduce your sentence by 25% for pleading guilty.
I consider that the comment in the first of those two paragraphs was highly inappropriate in that it generally attacked the legislation itself for making available a discount of up to 40 per cent in the situation where the accused pleads guilty to different lesser charges at trial.
This legislation was adopted for sound and understandable reasons including those set out in the passages in the Second Reading Speech reproduced by Lovell J herein at paragraphs [73]–[74]. There is nothing “incredible” or reprehensible about the fact that the situation here arising should come within the present framework of the legislation authorising a discount of up to 40 per cent of the head sentence. In some circumstances, a defendant clearly would be entitled to a full 40 per cent discount when pleading guilty to different lesser charges at trial. It was for the Judge to accept the policy of the legislation and to address the particular circumstances before him.
As Gray J notes herein, this Court has made it very clear that sentencing Judges must explain the basis of a sentence. Here, the Judge chose instead to criticise the legislation itself and then failed properly to consider the discretion specifically reserved by that same legislation to the Judge to grant less than the maximum allowable discount in a case such as the present.
The second paragraph of the above extract from his Honour’s remarks may be a reference to s 10C(4)(a), but if so it is misplaced. I agree with Gray J and Lovell J that the Judge failed to give adequate reasons for denying the appellant the maximum discount and that the granting of a 40 per cent discount and the resultant unsuspended head sentence would not per se constitute a sentence so disproportionate to the seriousness of the offence or so inappropriate in the case of this particular defendant so as to shock the public conscience.
However, like Lovell J, I consider that in the particular circumstances here, the discount was open to a reduction to 25 per cent rather than 40 per cent due to the unusual combination of circumstances recounted by Lovell J. That reduction of discount is here both accommodated and required by s 10C(4)(c): the circumstances surrounding the plea.
Having regard to the error of the sentencing Judge, I would proceed to a notional re-sentencing. Since I agree with Lovell J that such re-sentencing would produce the same result arrived at by the Judge, I would dismiss the appeal.
LOVELL J.
This appeal raises the issue of the tension between the utilitarian value of an early plea and a sentencing judge’s discretion as to the appropriate discount for an early plea taking into account all of the circumstances before him.
On 12 June 2014 the appellant was arrested and charged with four counts of aggravated threatening to kill contrary to section 19(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The gravamen of the charge was that he threatened his mother and his three children. When interviewed by the police he denied uttering any threats. On 7 October 2014 he was committed for trial and arraigned on 10 November 2014. The matter was listed for trial due to commence on 18 May 2015.
Shortly before trial, after discussions between the appellant and the Director of Public Prosecutions (“DPP”), the charges were amended to allege four counts of aggravated threatening harm, contrary to section 19(2) of the Act.
The prosecution, before the sentencing Judge, conceded that the prisoner was entitled to up to 40 per cent discount as he pleaded as soon as reasonably possible to the new charge.[19] The sentencing Judge, in the circumstances where the matter had been listed for trial before negotiations were undertaken, allowed only a 25 per cent discount for a plea.
[19] The transcript records the DPP stating that the appellant was entitled “to 40%” rather than “up to 40%”. This is almost certainly an error in the transcript. The Judge in his sentencing remarks noted that the appellant was entitled to “up to 40%”. It was not submitted on appeal that the DPP had made such a concession before the sentencing Judge.
The appellant alleges he was in error in doing so.
There was no ground of appeal relating to whether the head sentence and non-parole period were manifestly excessive. The only appeal ground was whether more than a 25 per cent discount for the plea should have been allowed. The final sentence imposed by the Judge was imprisonment for three years with a non-parole period of two years.
Background
Kerry Bridgland is the mother of the appellant. In her declaration she described how the appellant, leading up to the events on 11 June 2014, had become heavily dependent on illegal drugs, particularly methamphetamine.
At 2.00 am on 11 June 2014 the appellant came home and yelled at his mother to make him dinner. He was really angry. He went to the kitchen, he yelled out “I’ll fucken stab you all in the back – you’ve all fucken betrayed me, my own family”. He then said “Well, there’s knives here with each one of your names on it – one for [I], for betraying me, one for [C], one for [J], one for the one in pink, they call my mother, and one for my brother.” [20]
[20] Appeal book p 168.
Ms Bridgland was petrified for her own safety and for the children. At the time she was wearing pink pyjamas. The names referred to are those of the appellant’s children. The children were all awake at this stage. There were declarations from two of the children confirming Ms Bridgland’s statement. Unsurprisingly they were also terrified. The police attended and the appellant was taken for mental health assessment. The following day he was arrested. When spoken to by the police he denied the allegations saying he never uttered any threats.
The appellant was arrested on 12 June 2014 and charged with four counts of aggravated threatening to kill. No alternative charges were laid at that time by the prosecution. After committal he appeared in the District Court on 10 November 2014 and the arraignment was adjourned to enable a psychiatric report to be obtained. On 15 December 2014 the District Court was advised that the appellant was competent to plead to the charges and he was arraigned and pleaded not guilty to those charges. On 21 January 2015 a trial date of 18 May 2015 was allocated.
Shortly before trial, negotiations occurred between the prosecution and the defence. As a result of that, on 18 May 2015, the information was amended to allege four counts of aggravated threatening harm, contrary to section 19(2) of the Act. The appellant pleaded guilty to the amended counts.
It is particularly important to note in this case that the pleas were entered on the basis that the allegations contained within the declarations were not disputed. Despite his denials to the police in his record of interview he now accepted the nature and the content of the threats as initially alleged by each of the victims. It is also important to note that the aggravating feature in relation to each count was not varied nor amended.
Submissions were made before the Judge on 14 August 2015. It was put to the sentencing Judge that counsel had spent “a number of sessions with him in custody” and that he understands now the combination of his powerful build and the knives must have been truly terrifying to his victims. At the time of sentencing he had spent just over 14 months in custody.
The prosecution accepted before the sentencing Judge that in light of the amended charges the appellant was in fact entitled to up to 40 per cent discount pursuant to section 10C(2)(a) of the Criminal Law (Sentencing) Act 1988 (“Sentencing Act”).
At the end of the submissions the Judge proceeded to sentence.
In his sentencing remarks, the Judge noted the appellant’s background and in particular his prior “dreadful criminal record, which includes many crimes of violence”. The Judge referred to the psychological and psychiatric reports that were before him and he also quoted parts of the witness statements. He noted that the appellant remained in custody since his arrest on 12 June 2014. The Judge noted the fact that the appellant had not seen his children since he had been arrested on 12 June 2014 and in fact there was an intervention order which prevented contact. The Judge noted “You will have no chance of reconciling with your family if you continue to use drugs such as ice, as that drug, along with others, has an adverse effect on your personality”.[21]
[21] Appeal book p 136.
Utilising section 18A of the Sentencing Act the Judge imposed a single sentence of imprisonment in relation to the four charges. After allowing for a discount of 25 per cent for the plea he imposed a sentence of three years imprisonment with a non–parole period of two years backdated to commence on 12 June 2014.
Appellant’s submissions
The appellant’s sole ground of appeal was that a sentencing error occurred in that the Judge should have extended the full 40 per cent discount in accordance with the Sentencing Act. The appellant accepted that Parliament intended to provide a discretion to the sentencing Judges. However, the appellant complained that the Judge did not explain why a discount of 40 per cent would be disproportionate to the seriousness of the offence or why a discount of 40 per cent would shock the public conscience. The appellant submitted that a judge should explain the basis of a sentence so that an accused understands the sentence and also to demonstrate that legal principles have been applied correctly.[22]
[22] R v Copeland (No 2) (2010) 108 SASR 398.
The appellant argued that there was unambiguous utilitarian value in relation to the plea albeit late. The resolution of the trial saved the community the cost of a four day trial. The additional benefits were that the victims did not have to give evidence. It was submitted that it was within the power of the DPP to lay the aggravated threatening harm charges as alternatives to the charges of aggravated threatening life. In declining to do so, it was submitted the DPP left a reasonably obvious resolution unavailable.
Respondent’s submissions
Whilst stressing the significance of the utilitarian benefit of a plea of guilty the respondent submitted that section 10C(4) of the Sentencing Act permits the sentencing Court to have regard to other factors. The respondent submitted that section 10C(2) only fixes the upper limit of any discount.
It was submitted that the appellant had eventually accepted all of the facts alleged against him including the aggravating features despite initially denying them. The offer to plead guilty to lesser offences came late in the proceedings. These were factors, it was submitted, that the Judge was entitled to take into account in allowing less than 40 per cent discount in all of the circumstances.
Discussion
In the Second Reading Speech to the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 the Attorney-General identified the problem of increasing backlogs and delays in criminal cases coming up for trial in the Higher Courts in South Australia as being of a major and longstanding concern. He noted that:
A guilty plea just before trial is especially undesirable as it magnifies many of the adverse effects of delay. The longer a case remains in the courts’ list, the greater the delay it causes in other cases being reached. Consequently, getting cases out of the list should contribute to a reduction in delay.
He later stated:
Any perception that the Bill either goes too far and unfairly restricts the conferral of discounts or on the other hand is too generous and will lead to excessive discounts is mistaken. The Bill is both balanced and fair. It is necessary to restrict the conferral of discounts for belated guilty pleas in the manner stated in the Bill so as to tackle the underlying culture of late guilty pleas. There is adequate discretion in the Bill to avoid unfair or undue prejudice to defendants who plead guilty late in the proceedings for reasons beyond their control or for other good reason. Not only must the underlying culture of late guilty pleas be addressed but there are other linked issues that also require major reform. It is acknowledged that defendants and their lawyers are not to be solely blamed for the current delays arising from late guilty pleas. The effectiveness of the committal process and the need for timely and effective prosecution disclosure and accurate and informed and early prosecution decisions on charging are also significant. A prerequisite if the Bill is to achieve its stated objectives of reducing delays and encouraging early guilty pleas is sufficient and timely prosecution disclosure of its evidence. It must be emphasised that the problems of delays and inefficiencies in the criminal courts are complex and involve different agencies. The answer to these problems is as much administrative and cultural as legislative and new laws or additional funding will not necessarily address or resolve these problems.[23]
(My underlining)
[23] South Australia, Parliamentary Debates, House of Assembly, 11 July 2012, 2429 and 2432 (The Honourable John Rau).
It can be seen that the legislation is an attempt to deal with the late resolution of matters. It is important to observe here that while the resolution of the matter was late, the pleas to the new charges were early. It was accepted by the prosecution that the appellant fell within section 10C(2)(a) of the Sentencing Act which provides:
(2) If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences — the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%.
However, it is important to bear in mind that section 10C(4) which states:
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b) the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) the circumstances surrounding the plea;
(d) in the case where the defendant has been charged with more than 1 offence — whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control — that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
It is clear that by use of the words, for example, “up to 40 per cent” and the criteria set out in section 10C(4) of the Sentencing Act that Parliament intended a sentencing judge to retain a discretion in relation to the percentage discount to be applied.
The purpose of the scheme enacted pursuant to section 10C has been considered by this Court on a number of occasions. In R v Dwyer[24] Stanley J with whom the other members of the Court concurred (stated):[25]
... In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. In R v McPhee[26] Nicholson J, with whom Vanstone and Blue JJ agreed, said:
“In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s 10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.”
If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing just must explain why.
[24] (2015) 121 SASR 587.
[25] (2015) 121 SASR 587 [34]-[35].
[26] [2014] SASCFC 107.
It is important to note that in the case of R v Dwyer[27] the accused pleaded guilty to the charges on the original Information relatively early.
[27] (2015) 121 SASR 587.
Whilst noting the utilitarian purpose behind the sentencing regime section 10C(4) prescribes matters that the Court must consider in determining the percentage by which a sentence for an offence is to be reduced in respect of the guilty plea. It is clear from the set up of the scheme that Parliament did not intend to take away the sentencing discretion.
There is a clear tension, as demonstrated by this case, between the strict application of section 10C(2)(a), and the practical realities faced by a sentencing judge where delays have occurred and the proceedings have been resolved late. As submitted by the appellant he pleaded guilty as soon as the amended charges were laid. As submitted by the respondent the negotiations commenced only shortly before trial and the appellant in this case did not dispute any of the facts or features of aggravation that had been put forward at the committal.
In my view, in circumstances such as faced the sentencing Judge, the factual background leading up to the pleas of guilty could not be ignored. It was open for the sentencing Judge to take the view that the utilitarian purpose of section 10C had been reduced by the way the matter proceeded and the fact that negotiations commenced only shortly before trial.
Clearly section 10C(4) considerations were highly relevant when the Judge came to consider the question of the applicable discount.
Adequacy of reasons
It was submitted by the appellant that the Judge did not give adequate reasons for exercising the discretion in the manner he did. The Judge’s reasons regarding the offending and the background of the appellant were appropriate. Just prior to imposing the sentence the Judge stated:[28]
You were originally charged with counts of aggravated threatening life. Incredibly, because you pleaded guilty to lesser offences at your trial, you are entitled to a sentencing discount of up to 40%, because the offence of aggravated threaten to cause harm is not an alternative offence to which you could have pleaded guilty when charged with aggravated threatening life.
I am not prepared to reduce your sentence by 40% because, in my view, to do so, would be so disproportionate to the seriousness of the offences and so inappropriate in this case that it would shock the public conscience. I will reduce your sentence by 25% for pleading guilty.
You will be imprisoned for a period of three years. I consider a non–parole period of two years to be appropriate.
[28] Appeal book p 136.
The sentence and non-parole period were to run from 12 June 2014.
It was submitted that the Judge had not adequately explained his reasons for not allowing the 40 per cent discount. As has been stated before, sentencing remarks are not reasons for judgment. It is necessary and important that the remarks be read as a whole. The remarks do not need to contain specific references to any particular sentencing principle relied on when arriving at a sentence. It is important that the remarks as a whole demonstrate, if only by inference, that the necessary sentencing principles have been applied.[29] It is also important to bear in mind that the Judge proceeded to sentence immediately after the submissions finished.
[29] R v McPhee [2014] SASCFC 107 [34] per Nicholson J.
It is not easy to discern precisely what the Judge meant by his remarks mentioned above. In my view a fair reading of the remarks demonstrates that the Judge was clearly influenced by the way the plea had evolved at such a late stage of the proceedings. I accept the submission of the respondent that this is the correct way to read the sentencing remarks.
Section 10C(4) identifies a number of considerations to which the Court “must have regard”, if relevant, when determining the discount to be allowed. The section is couched in mandatory terms and the Court must consider any or all of the subsections it considers relevant. A judge does not have to remind counsel in every case that he or she must consider these matters. While it is preferable for a judge to alert counsel if considering a reduction in the discount it is not an absolute requirement.
Whilst I have interpreted the Judge’s remarks as raising a concern about the late change of charge, what is clear is that the Judge’s final decision was to use section 10C(4)(a). He found that to reduce the appellant’s sentence by 40 per cent would leave a sentence that was disproportionate to the seriousness of the offence such that it would shock the public conscience. If he had allowed the full 40 per cent (or close thereto) this would, from a starting point of four years, have left a head sentence of two years and five months.
In my view, despite the serious nature of the offending, a head sentence of only seven months less than what the Judge imposed could not shock the public conscience.
However, in my opinion the criteria described in section 10C(4)(a) do not encompass the circumstances in which a plea is entered. The subsection requires a sentencing judge to look at the percentage discount contemplated as against the seriousness of the offences and/or the “case of the particular defendant” when determining whether its application would shock the public conscience.
This exercise does not involve a consideration of the circumstances of how the pleas came to be made. If, for example, the DPP had laid the alternative charges right from the beginning (instead of the charges they did lay) and the appellant pleaded guilty in the Magistrates Court so as to attract up to a 40 per cent discount, the Judge, on his reasoning, could still only allow a 25 per cent reduction. In other words, the Judge found that because of the seriousness of the offences it would be, under all circumstances, disproportionate to allow 40 per cent. I do not consider that this was the Judge’s intention or reasoning.
The same logic applies to the other factor mentioned by the Judge. If in the case of this particular appellant it was so inappropriate that to give him the percentage contemplated by the legislation would shock the public conscience then this again would apply in circumstances where the accused, for example, had pleaded in the Magistrates Court. I do not consider that the Judge intended that.
In my view, to give effect to his reasoning the Judge could not rely on section 10C(4)(a). Parliament however, in section 10C(4)(c), has retained the Judge’s discretion to take into account the circumstances surrounding the plea. That would involve in my view circumstances such as confronted the Judge in this case. Other subsections namely (e) and (f) may also be relevant but I do not have to consider their applicability to the circumstances of this case.
In this matter the appellant denied to the police when initially questioned that he had said anything to the victims. He was represented by counsel at the committal hearing and upon his arraignment in the District Court when he pleaded not guilty to all charges. When questioned by a judge as to whether a “special directions” hearing should be ordered (to see if the matter could be resolved) counsel replied, “I do not think there’s any likely benefit from that”.
The not guilty pleas were maintained until shortly before trial when the fresh Information was laid and the appellant pleaded guilty.
During the course of submissions before the Judge emphasis was laid on the fact that counsel had spent “a number of sessions with him in custody” and that he is now “showing greater insight into himself and his behaviour”. It is pertinent to observe that at the time the appellant was first taken into custody he was in the grip of a very severe methamphetamine addiction. Even on the pleas to the fresh charges the appellant did not dispute any fact contained within the declarations. The prosecution accepted that a lesser meaning could be attributed to the actual threats.
The thrust of the submissions and the way in which the matter evolved suggested strongly that the appellant, only late in the proceedings, was prepared to concede that he had made any threat at all. On appeal counsel for the appellant did not suggest otherwise.
In the circumstances of this case the utilitarian benefit of an early resolution of the proceedings was diminished by the conduct of the appellant. It was appropriate for that to be reflected in the percentage discount to be applied.
In my view, the Judge was in error in using section 10C(4)(a) to take into account the circumstances of the plea. Further, I am of the view that to have given the appellant a 40 per cent discount in this matter would not have led to a sentence, for the reasons mentioned above, that would shock the public conscience.
Ordinarily in those circumstances the appeal would be allowed but only if the appeal Court thought that a different sentence should have been passed.[30] There was no challenge to the head sentence imposed by the Judge. On resentencing I note that the offending was serious and general and personal deterrence are very important considerations. I would impose the same starting point as the Judge, namely four years imprisonment.
[30] Section 353(4) Criminal Law Consolidation Act 1935 (SA).
I also take the view that the circumstances of the pleas were such as to call for a departure from the full 40 per cent reduction potentially available for the early plea. I would allow in the circumstances a reduction for his pleas of guilty of 25 per cent. That leaves the final sentence of three years imprisonment. Like the Judge I would impose a non-parole period of two years.
Given that I would sentence in the same way as the Judge, but for different reasons, I therefore dismiss the appeal.
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