R v Place

Case [2002] SASC 101

R v PLACE

[2002] SASC 101

Court of Criminal Appeal:      Doyle CJ, Prior, Lander, Martin and Gray JJ

  1. DOYLE CJ, PRIOR, LANDER and MARTIN JJ   The appellant pleaded guilty to six offences of armed robbery and four of failing to comply with a bail agreement.  He also requested that three offences of illegal use and two of threatening with a firearm be taken into account.  The learned sentencing judge imposed a head sentence of 11 years and six months and fixed a non-parole period of seven years and six months.  The appellant appeals against both the head sentence and the non-parole period on the basis that they were manifestly excessive.  In addition, the appellant asserts that the sentencing process was attended by errors of principle. 

  2. The sentencing judge adopted what has been called a “two-stage approach”.  It is appropriate to set out the relevant parts of his Honour’s remarks:

    “I propose to make use of S18A of the Criminal Law Sentencing Act and impose one sentence in relation to all matters. 

    Armed robbery in circumstances such as these normally attracts a head sentence of six to eight years. 

    In the circumstances of the six offences of armed robbery, together with the matters for which consideration is sought, and the offences of breach of bail charged on complaint, I would start with a sentence of 32 years imprisonment.  The principle of totality requires that this be reduced.  I consider an appropriate starting point is 22 years imprisonment.

    From this you are to receive credit for the matters I have mentioned;  your confession, which enabled the solving of several offences and saved significant police and court time, your subsequent immediate pleas of guilty and acknowledgement of the other considerations and your contrition.”

  3. The sentencing judge then referred to an authority which indicated that the reduction for the plea and co-operation should be in the order of 40 per cent.  He said that further credit should be given for the appellant’s involvement in the Drug Court programme.  Allowing for all of those matters, his Honour arrived at a head sentence of 12 years, from which he deducted a period of six months as a reflection of time already spent in custody and the deprivations of home detention bail.  By this process his Honour arrived at the head sentence of 11 years and six months imprisonment. 

  4. The appellant’s complaints about the approach of the sentencing judge may be summarised as follows.  First, that his Honour erred in applying a “tariff” for armed robbery based purely on the objective circumstances of the crimes without regard to the individual circumstances of both the crimes and the appellant.  Associated with this complaint was the suggestion that the South Australian Court of Criminal Appeal has erred in its approach to fixing a “tariff” in respect of the crime of armed robbery.  Secondly, that his Honour erred in considering the principle of totality after identifying a starting point of 32 years imprisonment based on objective considerations.  Thirdly, that it…

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R v Place [2002] SASC 101
Case
[2002] SASC 101
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CaseChat Overview and Summary

In the case of R v Place, the appellant, who had pleaded guilty to armed robbery, appealed against the sentence imposed by the sentencing judge. The primary issue for the Court was whether it was an error for a sentencing judge to identify a specific reduction for a plea of guilty. This issue arose in light of the decision in Wong, which had prompted a review of the Court's approach to setting standards for the crime of armed robbery. The Court needed to determine whether the sentencing judge had erred by identifying a specific reduction for the plea of guilty and whether the Court had been in error in encouraging sentencing courts to do so.

The Court of Appeal considered the arguments presented by both parties, focusing on the principles of sentencing and the impact of a plea of guilty on the sentencing process. The Court examined the practice of identifying a specific reduction for a plea of guilty and whether this practice was consistent with the objectives of sentencing. The Court also reviewed the submissions in the case, which highlighted the advantages of identifying a reduction for a plea of guilty, while also acknowledging the importance of maintaining the integrity of the sentencing process. The Court noted that there was a distinction between the objective and subjective considerations that could influence the extent of the reduction for a plea of guilty.

The Court held that it was not an error for a sentencing judge to identify a specific reduction for a plea of guilty, provided that the reduction was consistent with the sentencing principles and did not lead to any distortion of the sentencing process. The Court emphasised that the reduction should be based on objective factors such as the timing of the plea and the extent of cooperation with the authorities, rather than subjective considerations such as contrition. The Court also noted that the practice of identifying a reduction for a plea of guilty could be beneficial in saving costs and expediting the administration of justice. However, the Court cautioned that the reduction should not be excessive and should be proportionate to the advantages gained by the plea.

The Court concluded that the sentencing judge had not erred in identifying a specific reduction for the plea of guilty. The Court found that the reduction was consistent with the sentencing principles and did not lead to any distortion of the sentencing process. The Court also noted that the reduction was proportionate to the advantages gained by the plea and was not based on subjective considerations such as contrition. The Court rejected the appellant's argument that the sentencing judge had erred in taking into account the subjective consideration of contrition when determining the extent of the reduction. The Court held that it was appropriate for a sentencing judge to take into account a combination of factors when determining the extent of a reduction for a plea of guilty, provided that the reduction was based on objective factors and was proportionate to the advantages gained by the plea.

The Court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The Court emphasised the importance of maintaining the integrity of the sentencing process and ensuring that the reduction for a plea of guilty was consistent with the sentencing principles. The Court also noted that the reduction should be based on objective factors and should not be influenced by subjective considerations such as contrition. The Court held that the sentencing judge had properly exercised his or her discretion in determining the extent of the reduction for the plea of guilty and had not erred in doing so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARTIN JJ (dissent) GRAY J
In view of the decision in Wong, the issues raised in this appeal require the Court to examine its approach to the fixing of a standard for the crime of armed robbery and to determine whether it is an error for a sentencing judge to identify a specific reduction for a plea of guilty and whether this Court has been in error in encouraging sentencing courts to do so. Wong – Guideline Judgments In Wong the Court of Criminal Appeal of New South Wales was concerned with two appeals by the Crown against sentences imposed for the offence of being knowingly concerned in the importation of a prohibited import. The Court acceded to a submission by the Director of Public Prosecutions that it was appropriate to issue a guidelines judgment with respect to the appropriate penalties for the offence under consideration in accordance with the practice of the New South Wales Court of Criminal Appeal: R v Jurisic (1998) 45 NSWLR 209. The Court was comprised of five judges who were unanimous in their view that the sentences imposed were manifestly inadequate and that appellate intervention was required. The sentences of 12 years imprisonment with non-parole periods of seven years were increased to 14 years imprisonment with non-parole periods of nine years. Four judges considered it was appropriate to publish a guidelines judgment. One judge dissented on that issue. The guidelines published by the majority were as follows:“· Low level traffickable quantity - 5 to 7 years(2 grams–200 grams)· Mid level traffickable quantity - 6 to 9 years (200 grams-1 kilogram)· High range traffickable quantity - 7 to 10 years (1 kilogram-1.5 kilograms (heroin) 1 kilogram-2 kilograms (cocaine)· Low range commercial quantity - 8 to 12 years 1.5 kilograms-3.5 kilograms (heroin) 2 kilograms-3.5 kilograms (cocaine)· Substantial commercial quantity - 10 to 15 years (3.5 kilograms-10 kilograms).” The guidelines were not applied by the Court of Criminal Appeal to the matter under consideration. As Gleeson CJ pointed out, the guidelines related to couriers and not to people in the position of the offenders. As the guidelines were not applied by the Court of Criminal Appeal, his Honour reached the view that the decision of the Court had not been shown to be in error. However, his Honour was of the view that the guidelines could be validly criticised. He said [31]:“31. Even so, there is, in my view, a valid criticism to be made of the guidelines, although it is not one that has a bearing on the outcome of the present appeals. There is utility in addressing the criticism, because of the danger that in future cases, where the guidelines are applied, error may result. I agree with the contention of the appellants that, making due allowance for all the qualifications with which the guidelines were accompanied, there is a substantial risk that they may result in an approach to sentencing which is inconsistent with the requirements of s 16A of the Crimes Act 1914 (Cth). Insofar as they are a mere compilation or classification of sentencing information, then they are either accurate or inaccurate, helpful or unhelpful. But they are clearly intended to be more than that. The effect they will have, is to constrain the exercise of sentencing discretion. This is a risky undertaking when there is a federal statute which spells out in detail the matters to be taken into account by a sentencing judge. The statute is important both for what it says and for what it does not say. In particular, the guidelines, in their specificity, and in the significance they attach to the objective fact of the quantity of heroin imported, which is broken down into sub-categories which have no statutory foundation, are likely to lead to error. To take one example, which is not uncommon, although it has nothing to do with the present case, it may be that an offender’s state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity. A given judge, looking at the guidelines, but also taking account of all the qualifications expressed, might not necessarily take an approach inconsistent with s 16A. But there is a real risk that another judge might.” (our emphasis)

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

On more than one occasion Murray J has disagreed with any form of two-stage approach and expressed a preference for the “instinctive synthesis” approved in Young. However, in Verschuren his Honour concluded that it is not an error of principle either to adopt a two-stage approach or to decline to do so. Having observed that the task of sentencing cannot be performed meaningfully by endeavouring to describe in quantified terms the impact of each factor upon the sentencing process, his Honour said (p 491):“And yet, each relevant factor taken into account by the sentencing judge must be identified and the weight given to it adequately described, so that all may understand the basis upon which the discretionary judgment is made. Generally speaking, it will be consistent with principle and will adequately advance the purposes of sentencing to do no more, because if that task is properly performed the offender and others will know what impact in the particular circumstances of the case the matters under discussion have had upon sentence.”Plea – Objective and Subjective Considerations During the submissions in this Court, senior counsel for the appellant acknowledged the advantages of identifying a specific reduction for a plea of guilty. Ultimately, he conceded that identifying a reduction for the practical value of a plea in saving costs would not infringe any sentencing principle or lead to any distortion of the sentencing process. However, he submitted that in determining the extent of the reduction it is inappropriate to take into account the subjective consideration of contrition. As mentioned, this appears to be the view favoured by Slicer J in Pavlic and by Malcolm CJ in Verschuren. In his propositions set out in Shannon, King CJ said that a plea of guilty may be taken into account in mitigation where it results from contrition or from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial. As a consequence, in determining the extent of a reduction, for some years it has been the practice in South Australia to take into account the timing of the plea and whether or not it is accompanied by contrition and co-operation with the authorities. A plea accompanied by active assistance to the authorities is recognised as attracting the higher range of reduction. A combination of factors including contrition and co-operation was taken into account when this Court determined the extent of a reduction for a plea in R v Wiskich (2000) 207 LSJS 431 at 465. Prior J, with whom Besanko J agreed, noted that reliance on a combination of factors when referring to Wiskich in R v Powell [2001] SASC 450 at [23]. When such a combination of factors exists, it is not the practice to attempt to identify a specific reduction for each of the factors that accompanies the plea. For example, there is no attempt to isolate a reduction for the fact of the plea and a separate reduction for assistance to authorities. It was this type of combination of factors to which Gleeson CJ addressed his remarks in R v Gallagher (1991) 23 NSWLR 220. In Gallagher, the New South Wales Court of Criminal Appeal was concerned with the issue of reduction for assistance to authorities. Gleeson CJ, with whom Meagher JA agreed, concluded that a sentencing judge was entitled, but not obliged, to identify a reduction given for assistance to authorities, provided it was possible and appropriate to do so. In that case the appellant had also pleaded guilty and demonstrated contrition. The Chief Justice observed that those subjective matters were not entirely separate from the matter of the appellant’s assistance to authorities. It was in that context that his Honour made the following remarks which were cited in the joint judgment in Wong at [76]:“It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical” (p 228).