R v Sharma

[2002] NSWCCA 142

Reported Decision: 54 NSWLR 300
130 A Crim R 238

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v SHARMA [2002] NSWCCA 142
FILE NUMBER(S):	CCA 60894/01
HEARING DATE(S):	15/4/02
JUDGMENT DATE:	24 April 2002
PARTIES :	Regina Ravinesh Dutt SHARMA
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 86; Barr J at 87; Bell J at 88; McClellan J at 89

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0378
LOWER COURT JUDICIAL OFFICER :	Woods QC DCJ

COUNSEL :	G E Smith / E A Wilkins (Crown) C B Craigie SC / H Cox (Respondent) R D Cogswell SC / M Buscombe / B Baker (Attorney General) A C Haesler SC (Senior Public Defender)
SOLICITORS:	S E O'Connor (Crown) Glenn K Walsh (Respondent) I V Knight (Attorney General) D J Humphreys (Public Defender)
CATCHWORDS:	CRIMINAL LAW - crown appeal against sentence - armed robbery in company - plea of guilty - whether error in separate account for and quantification of plea - "two stage approach" - whether error in taking into account utilitarian value of plea - objective and subjective considerations - "ambiguous" - whether R v Thomson (2000) 49 NSWLR 383 should be overruled - whether sentence manifestly inadequate - Crimes (Sentencing Procedure) Act 1999, s22 - Interpretation Act 1987, s34
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Interpretation Act 1987 Penalties and Sentences Act 1985 (Vic) Sentencing Act 1991 (Vic) Sentencing Act 1995 (WA)
CASES CITED:	AB v The Queen (1999) 198 CLR 111 Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 Cameron v The Queen [2002] HCA 6; 76 ALJR 382 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 Director of Public Prosecutions (Cth) v EI Karhani (1990) 21 NSWLR 370 Ellerman Lines Ltd v Murray [1931] AC 126 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 R v AEM Snr [2002] NSWCCA 58 R v Donnelly [1998] 1 VR 645 R v Gallagher (1991) 23 NSWLR 220 R v Giakas [1988] VR 973 R v Gray [1977] VR 225 R v Hall (1994) 76 A Crim R 454 R v Laurentiu and Becheru (1992) 63 A Crim R 402 R v Morton [1986] VR 863 R v Paull (1990) 20 NSWLR 427 R v Pham (1991) 55 A Crim R 128 R v Place [2002] SASC 101 R v Powell [2001] SASC 450 R v Shannon (1979) 21 SASR 442 R v Simpson [2001] NSWCCA 534 R v Sutherland (SASC, 16 November 1992, unreported) R v Thomson (2000) 49 NSWLR 383 R v Winchester (1992) 58 A Crim R 345 Repatriation Commission v Vietnam Veterans' Association (2000) 48 NSWLR 548 Siganto v The Queen (1998) 194 CLR 656 Wong v The Queen [2001] HCA 64; 76 ALJR 79
DECISION:	1. Crown appeal allowed; 2. Sentence imposed quashed; 3. Respondent sentenced to two years imprisonment with a non-parole period of eighteen months, after which the Respondent is to be released to parole.

60894/01

SPIGELMAN CJ
MASON P
BARR J
BELL J
McCLELLAN J

Wednesday 24 April 2002

REGINA v Ravinesh Dutt SHARMA

FACTS

The Respondent pleaded guilty to a charge of armed robbery in company. He was sentenced to imprisonment for eighteen months with a non-parole period of twelve months. This sentence was determined by the sentencing judge after allowing a discount of 25% for the plea of guilty and a further discount of 50% for co-operation with the authorities. The Respondent was one month short of his twentieth birthday when he committed the offence. The crown appealed against the sentence imposed, submitting that it was manifestly inadequate.

HELD

A The sentencing judge did not err in taking into account as a separate element and quantifying the value of the plea. Criticism of a “two stage approach” to sentencing in Wong v The Queen [2001] HCA 64; 76 ALJR 79 does not require the court to overrule R v Thomson (2000) 49 NSWLR 383, which should still be followed.
R v Place [2002] SASC 101 discussed.

B The sentencing judge did not err in taking into account the utilitarian value of the plea in accordance with R v Thomson . The subjective perspective of a “willingness to facilitate the course of justice” referred to in Cameron v The Queen [2002] HCA 6; 76 ALJR 382, is not, in New South Wales, required to operate to the exclusion of objective considerations. Section 22 of the Crimes (Sentencing Procedure) Act 1999 has amended the common law in this respect. R v Morton [1986] VR 863 referred to. The meaning of the word “ambiguous” in s34 of the Interpretation Act 1987 discussed .

C The sentence imposed gave an excessive discount for the combined effect of the plea and assistance and was manifestly inadequate.

ORDERS

1 Crown appeal allowed.
2 Sentence imposed quashed.
3 Respondent sentenced to two years imprisonment with a non-parole period of eighteen months, after which the Respondent is to be released to parole.

60894/01

SPIGELMAN CJ
MASON P
BARR J
BELL J
McCLELLAN J

Wednesday 24 April 2002

REGINA v Ravinesh Dutt SHARMA

Judgment

1 SPIGELMAN CJ: This is a crown appeal under s5D of the Criminal Appeal Act 1912. The Respondent pleaded guilty to one charge of robbery in company contrary to s97(1) of the Crimes Act 1900. His Honour Judge Woods QC sentenced the Respondent to imprisonment for eighteen months with a non-parole period of twelve months. The non-parole period will expire on 3 May 2002.

Factual Background

2 During the late afternoon of 21 March 2001 the Respondent was travelling as a passenger in a motor vehicle driven by his co-offender, Vikash Nair. A conversation occurred with respect to committing an armed robbery on unspecified premises and Nair produced a knife from underneath the front passenger seat. The Respondent agreed to participate in the offence.

3 At 5.00pm the two offenders left their parked car and walked to the Mount Ku-ring-gai Motel located on the Pacific Highway in Sydney. They entered the foyer area of the motel where the owner, Mr Graham Cheng, was seated behind the counter. Vikash Nair jumped over the counter, produced the knife – which Mr Cheng described as ten inches long - threatened Cheng with it and demanded that he open the cash drawer. Cheng complied with the demand and the offenders left with about $300 in cash from the drawer.

4 A few moments later Cheng called for assistance from an occupant of the motel, Mr Sexton. Sexton and a number of other people pursued the offenders. The Respondent was found hiding in bushland in the vicinity of the motel. Police were called and the Respondent was arrested.

5 At the time of his arrest he told police that he knew the co-offender by his nickname “Max”. He did, however, indicate to the police that he and his co-offender had left identification documents in the car, still parked near the scene. It does not appear whether or not the police found anything in the car or would have been able to identify the co-offender from ownership records of the car.

6 The Respondent participated in a Record of Interview and admitted his involvement in the offence. He gave details of the circumstances of the offence. Subsequently the Respondent made a further statement to police and identified his co-offender as Vikash Nair.

7 The Respondent was one month short of his twentieth birthday when he committed the offence. He had previously been dealt with in the Local Court in relation to charges of possessing a prohibited drug and entering enclosed lands.

8 The Respondent signed an undertaking to give evidence against the co-offender Nair. According to a statement from a police officer it was likely that Nair “could have avoided apprehension and prosecution” but for the Respondent’s assistance.

9 The Respondent was granted bail after his arrest but as a result of his failure to comply with bail conditions he was rearrested. At the time of the hearing before Woods DCJ he had served five and a half months. The sentence was backdated with the effect that by the time the matter was heard in this Court the non-parole period had almost expired.

10 A pre-sentence report found the Respondent unsuitable for either a community service order or periodic detention because of his poor response to supervision while on bail. The Respondent had breached bail conditions including a failure to attend for counselling and assessment. The officer noted:

“When he did report, for the preparation of this report and for bail supervision, he presented as aggressive and evasive and refused to discuss issues with the undersigned, regardless of a direction by the Court. He appeared to regard the consequences for failing to comply as a joke, often laughing about his situation and possible outcomes.”

11 The Respondent’s father left home when he was two years of age. The Respondent reported a history of sex abuse between the ages of ten and thirteen. He claimed to have been bashed by his uncle when a young child, but this was not confirmed by his mother. He said he started using cannabis at the age of thirteen or fourteen and smoked it daily until the age of fifteen or sixteen, when he commenced using heroin on a daily basis. He commenced binge drinking at the age of fourteen or fifteen. He reportedly attempted suicide in December 2000.

12 The Respondent gave evidence. He said that he had worked fulltime as a clerk since being incarcerated at Parklea Correctional Centre. He said that he was studying and had participated in drug and alcohol counselling. He said that he had been in protective custody for approximately one and a half months prior to being sentenced.

13 There was evidence before the Court of support from his family and girlfriend. The Respondent indicated that upon his release he intended to live with his mother.

14 A psychiatrist’s report was tendered. This outlined the Respondent’s personal history, focusing on the need for support with respect to substance abuse. A psychologist’s report repeated part of the history with more detail of incidents of self harm and long term difficulties with anger management.

15 The crown submitted that the Respondent’s reference to his co-offender as “Max” constituted an initial refusal to co-operate with the authorities. This does not appear to be the case. Within a minute or so of using the name, he also referred to the car in which he and the co-offender had come to the motel and stated that identification for himself and his co-offender were to be found in that car. Subsequently the Respondent continued to refer to the co-offender as “Max”, for example during the course of the electronically recorded interview. The only hesitation was the suggestion that he only knew “Max” by his nickname. In a subsequent statement he admitted that he always knew the co-offender’s full name and suburb of residence, which he provided to the police.

16 In his remarks on sentence Woods DCJ referred to the plea, the undertaking to give evidence against the co-offender, the Respondent’s youth and his drug problem.

17 His Honour referred to the principle that armed robbery generally requires a custodial sentence and referred to the requirements of general and personal deterrence. His Honour accepted that a sentence of fulltime custody was required. His Honour also said:

“The appropriate sentence for a case such as this has been considered in the guideline case of Henry, the circumstances of which are quite similar to the present matter. A knife was used, there was no actual physical violence involved, but there was a real threat, and no doubt the display of the knife by the co-offender in company with the offender, Sharma, must have distressed Mr Cheng considerably. It certainly prompted him, sensibly, to open the till with great alacrity.
The appropriate starting point, it seems to me, for calculating the appropriate sentence in this case, given the fact that he is a first offender even though it is an offence in company, he has played, it seems to me, a lesser role, is four years in prison. There has been a plea of guilty, it is an early plea, and he is to have the benefit of that. The contrition which he shows by the plea, and which he has exhibited by giving evidence in the witness box, and from the utilitarian component of avoiding the necessity for a trial, these things combined cause me to allow a discount of some twenty-five percent on sentence, and that I would reduce the point at which I would further consider the sentence to three years.
There is, however, another consideration in this case. The other offender, Nair, was not caught immediately and, according to exhibit C which I accept, probably would not have been caught but for being nominated in his frank disclosure by this offender.
I take into account all of the matters listed in s23 of the Crimes (Sentencing Procedure) Act , and especially, as I say, that the co-offender would not otherwise have been caught, exhibit C, and particularly also the fact that the offender is on protection which will mean that his time spent in custody is doubly uncomfortable. I will allow a reduction of the notional sentence by fifty percent in the circumstances.”

18 Exhibit C to which his Honour referred was the statement by the constable relating to the value of the assistance.

19 His Honour imposed a head sentence of eighteen months. He found special circumstances in the Respondent’s youth and history of drug addiction, which required a longer than normal period of supervision. He fixed a non-parole period of twelve months.

Utilitarian Value of the Plea

20 A legal issue of general significance has arisen in the submissions in this case. That issue is whether a sentencing judge is permitted, when taking into account a plea of guilty, to quantify a discount to be given for the plea and, in any event, to give weight to the utilitarian value of the plea.

21 With respect to the effect to be given to the plea of guilty, Woods DCJ was, of course, bound by R v Thomson (2000) 49 NSWLR 383. His Honour allowed a discount of twenty-five percent, which he expressed to be for both the element of contrition and also for what his Honour referred to, in accordance with practice in this State, as “the utilitarian component of avoiding the necessity for a trial”. This Court’s decision in Thomson indicated that the utilitarian value of the plea “should generally be assessed in the range of ten to twenty-five percent discount on sentence” (at [160]).

22 The crown raised the question as to whether or not this Court’s guidance in Thomson remained appropriate, in view of the High Court’s decisions in Wong v The Queen [2001] HCA 64; 76 ALJR 79 and Cameron v The Queen [2002] HCA 6; 76 ALJR 382.

23 In Wong the joint judgment of Gaudron, Gummow and Hayne JJ disapproved of the “two stage” approach to sentencing – sometimes contrasted with an “instinctive synthesis” approach - by which a preliminary sentence is determined and thereafter adjusted “by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities” (at [76]). Their Honours said that a two stage approach is “wrong in principle” (at [76]). Their Honours noted that in AB v The Queen (1999) 198 CLR 111, McHugh J at [15]-[18] and Hayne J at [115] expressed the same view, Kirby J expressing a contrary view at [99]-[100].

24 As the joint judgment in Wong indicated at [76], the relevant line of authority was analysed in some detail by myself in R v Thomson at [54]-[113]. Specifically I said at [57]:

“The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.”

25 In this respect I relied on the reasoning of Gleeson CJ and Hunt J in R v Gallagher (1991) 23 NSWLR 220. (See Thomson at [68]-[72].)

26 I also referred to a number of other intermediate appellate court decisions that had acknowledged the appropriateness of a percentage discount, relevantly, for a plea of guilty. The other members of this Court in Thomson agreed with my judgment.

27 In Wong, the other member of the majority was Kirby J. His Honour did not join in the criticism of a two stage approach to sentencing. The reasoning of the joint judgment in this respect was of the same character as that considered by a five judge bench of this Court in Thomson. For the reasons there given, an “instinctive synthesis” approach was not adopted with respect to the particular matter now under consideration, i.e. quantification by a sentencing judge of the discount she or he has applied for the plea. This Court should not reconsider a recent decision of a five judge bench unless it is required to do so by the doctrine of precedent. It is not so required. The Court cannot add, in some notional way, the three judges who joined in the joint judgment in Wong with the opinion expressed by McHugh J in AB. (See also Cameron at [41].)

28 As the authorities considered in Thomson indicate, the Supreme Court of South Australia has also adopted the practice of encouraging sentencing judges to quantify the discount given for a plea of guilty. After the High Court’s decision in Wong the Full Court of the Supreme Court of South Australia considered the implications of that judgment in R v Powell [2001] SASC 450. It concluded by a majority of two to one that the previous practice could continue, notwithstanding the criticism of a “two stage approach” to sentencing in the joint judgment in Wong. The matter was of sufficient practical significance for the Supreme Court of South Australia to convene a five judge bench in R v Place [2002] SASC 101, where the Court unanimously came to the same conclusion.

29 The judgment in Place considers at some length the implications of Wong for the practice in South Australia of suggesting sentencing standards for some offences. It also considers the implications of the reasoning in Wong for the practice with respect to pleas of guilty. The joint judgment of the South Australian Court of Criminal Appeal focuses on the reference in the joint judgment in Wong to “a mathematical approach to sentencing in which there are to be increments to, or decrements from, a predetermined range of sentences”. (See Place at [35].) Their Honours set out in some detail the development of the practice of quantifying the discount in South Australia and also to the practice in other States. In the event, their Honours unanimously affirm the majority decision in Powell that the judgment in Wong does not require the court to change its practice.

30 Their Honours concluded:

“[80] The ‘mathematical’ two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty. The views expressed in the joint judgment concerning a two-stage approach, and in particular the example given with respect to identifying a reduction for a plea of guilty, were not the views of a majority. In our opinion this Court is not constrained by authority to hold that the existing practice in this State in wrong. In our view, the current practice is consistent with the requirements of s10 of the Sentencing Act and conforms with sentencing principles. The failure to identify a specific reduction is not an error of principle nor, in itself, is it a ground for interference with a sentence. Significantly, the South Australian practice does not detract from the requirement that sentencing courts take into account all relevant matters relating to the offence of the offender. The practice must not give rise to any distortion of the sentencing process or invite error. It does not interfere with the important consideration of proportionality. The views expressed by McHugh J in AB and in the joint judgment in Wong have not come to fruition in the ten years that the practice has existed in this State.

[81] The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons it are given. The community and the appellate court is similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
[82] The system is fair and practical. It has worked well in practice for a number of years. In our opinion it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the Court has departed from its present practice. An explanation for the departure based on describing the sentencing processes as an instinctive synthesis would be greeted with scepticism.
[83] For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of a reduction, the current practice of taking into account the timing of the plea, contrition, cooperation with and assistance to the authorities should continue. We emphasise that when taking into account any subjective considerations, sentencing courts should not ignore those subject considerations to the extent that they are relevant to other aspects of the sentencing task.”

31 For similar reasons, in my opinion, the practice in this State, which has developed over a considerable period, culminating in the guideline judgment in Thomson, should also continue.

32 In Cameron a bench of five sat. There was a majority joint judgment of Gaudron, Gummow and Callinan JJ, which is binding on this Court.

33 Their Honours quoted, at [11], from the four judge joint judgment in Siganto v The Queen (1998) 194 CLR 656 at [22], which referred to mitigation of sentence on a plea as in part being based “on the pragmatic ground that the community is spared the expense of a contested trial”. This was a passage expressly relied upon by this Court in Thomson at [4].

34 The joint judgment in Cameron stated, after referring to the passage in Siganto:

“[11] 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.
[12] 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.
[13] 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.
[14] Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for the rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”

35 In the present case, Woods DCJ referred to “the utilitarian component of avoiding the necessity for a trial”. In doing so his Honour adopted terminology which has long been accepted in this State and which was reaffirmed in Thomson, which not only identified the utilitarian value of a plea in objective terms, but provided for a distinct quantification for the utilitarian value in circumstances where it rejected the submissions of the crown, and of the intervening Attorney General, that a discount be given for the whole of the value of a plea, incorporating all relevant elements including both the utilitarian element and other elements such as remorse. (See e.g. at [115], [116] and [160].)

36 If the reasoning in Cameron is applicable in this State, then the foundation of the judgment in Thomson is swept away. For purposes of the instant case, his Honour will have erred in taking into consideration a utilitarian component in the objective sense, without focusing his attention exclusively on the subjective aspect.

37 The discount range of ten to twenty-five percent established by Thomson, was based on the utilitarian value of the plea understood in an objective sense. There is no reason to accept that a discount of this order of magnitude would be appropriate as a separate element, if the courts’ consideration were confined to the subjective factor of preparedness to facilitate the administration of justice. The size of the discount identified as appropriate in Thomson was determined by pragmatic considerations. If such considerations are not permitted to be taken into account, then the size of the discount identified in Thomson, which is reflected in the size of the discount given by his Honour, would no longer be appropriate.

38 The joint judgment in Cameron was concerned with general sentencing principles. It did so in the context of a West Australian statute. Those sentencing principles would be applicable in New South Wales, unless they have been modified by statute. If they had been so modified, then the different reasoning of Kirby J in Cameron at [65]-[68] would be pertinent for the practice in this State. This Court must determine whether there has been such a modification. In R v Place the five judge bench of the South Australian Court of Criminal Appeal suggested, at [64]-[79], without needing to finally decide the question, that Cameron did not apply under the legislation of that State.

39 In 1990 the New South Wales Parliament introduced s439 of the Crimes Act 1900. The section has now been re-enacted, in substantially the same form, as s22 of the Crimes (Sentencing Procedure) Act 1999 which provides:

“22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decision.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.”

40 The formulation in Cameron of “willingness to facilitate the course of justice” echoes the remarks of King CJ in R v Shannon (1979) 21 SASR 442 at 454-453 where his Honour put forward a number of propositions with respect to the effect of a plea as follows:

“1 A plea of guilty may be taken into account in mitigation of sentence where -
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to cooperation in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such cooperation may be a desire to earn leniency, and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve.”

41 Although subjective considerations were emphasised in this judgment, King CJ subsequently invoked objective elements. For example, in R v Sutherland (SASC, 16 November 1992, unreported), his Honour said:

“This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy …”

42 A subjective perspective on the matter is also referred to, albeit in addition to an objective perspective, in a judgment of the Full Court of the Supreme Court of Victoria at about the same time. (R v Gray [1977] VR 225 at 323):

“… the plea may be evidence of remorse, that is, regret as to participation in the crime … There are other factors that operate in the public interest. The plea may operate, and may have been so intended, to save a prosecutrix the ordeal of giving evidence in a sexual case. The plea may serve, and may have been so intended, to save the State a lengthy and expensive trial. Yet in neither of such cases might the accused feel genuine remorse. There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But having been detected he has had to do the best he can for himself. Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves the measure of public utility in the belief that his own ultimate interest is best served by doing so. The judge may (not shall) take such circumstance into account in the accused’s favour. If such action be tainted overmuch by self interest it probably will not avail the accused. Professor Sir Rupert Cross in his book The English Sentencing System (1971) p153 suggests that it is in the interests of the present judicial system that provided they are in fact guilty, accused persons should plead guilty. No doubt great cost to the community in time, convenience and money is thereby saved. However expedient as this may be from the point of view of the executive, it is not a matter which requires the sentencing judge to reduce the sentence below that which he otherwise believes to be proper in the circumstances.
On the other hand, there may be pleas of guilty which are not designed to serve the public interest – or may do so only marginally or incidentally. That is to say, the accused’s self interest is completely predominant in the decision reached by him. One such case will be when the accused is quite unrepentant and confesses his guilt simply because the case against him is overwhelming and, in a practical sense, unanswerable. Now there may be a case of ‘plea bargaining’ between the accused or his advisers and the Crown, as, for instance, where the Crown accepts an offer by the accused to plead guilty to a lesser offence. The entry of a ‘guilty’ plea is then merely a manifestation of an exchange of an advantage for a disadvantage by both the accused and the Crown. In such case it will ordinarily be much more difficult to persuade the court that the guilty plea has that degree of spontaneity or sincerity expected to be the product of true repentance. But, of course, a plea bargain and remorse are not mutually exclusive. A remorseful accused ought not be prevented from taking the benefit of any arrangement he can advantageously make with the Crown nor penalised on that account if he does.”

43 R v Gray suggested, but did not determine, that public benefit in an objective sense was relevant.

44 In 1985 the Victorian Parliament enacted the Penalties and Sentences Act 1985 (Vic). Section 4 of which provided:

“4(1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.
(2) If under subsection (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.
(3) The failure of a court to comply with subsection (2) does not invalidate any sentence imposed by it.”

45 In R v Morton [1986] VR 863, the Full Court of the Supreme Court of Victoria had to consider what, if any, effect this legislation had on the pre-existing common law as set out in R v Gray. This analysis is of particular significance for the effect of the New South Wales legislation originally enacted as s439 of the Crimes Act. The Full Court of the Victorian Supreme Court found that the section did amend the common law in respects relevant to the construction of s439.

46 The joint judgment said at 867-868 (emphasis added):

“If sub-section (1) stood alone, it might be regarded merely as declaratory of the existing law, but the reference in the sub-section simply to the plea of guilty without qualification suggests that something more was intended. Parliament must be taken to know the law and the courts in this State have for a long time taken a plea of guilty into account when passing sentence in any case in which they have considered it appropriate to do so: see, for example R v Gray [1977] VR 225. Sub-section (2) confirms that something more than a mere declaration of the existing law is intended. That sub-section shows first of all that the taking into account of a plea of guilty, if it has an effect at all upon the sentence passed, is to operate to reduce not to increase the sentence. So much might again be regarded as no more than declaratory. But having regard to the principles stated in R v Gray , the absence of any words of limitation in sub-section (1) or in sub-section (2) and the absence of any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account in fixing a sentence lead inevitably to the conclusion that a plea of guilty may be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as remorse which is regarded as relevant for sentencing purposes . The existence of sub-section (2) with its mandatory requirement upon the court, if it ‘under sub-section (1)’ reduces the sentence it would otherwise have passed, to state that fact when passing sentence, shows the intention of Parliament to encourage the practice of a court's taking a plea of guilty into account in an accused's favour .
The judgment of the majority in R v Gray contains, at pp 230-3, a discussion of the occasions upon which and the extent to which it was, prior to the passing of s4, appropriate for a court to allow a plea of guilty to operate in mitigation of sentence. It is unnecessary to rehearse what is there said, but in summary their Honours Mclnerney and Crockett JJ. indicated that it was for a sentencing judge to evaluate a plea of guilty and having done so to give it such effect, if any, in reduction of sentence as he thought proper. Nothing in s4 renders that process unnecessary or inappropriate. But their Honours went on to suggest, at pp 232-3, that pleas of guilty which are not designed to serve the public interest and in which the accused's self-interest is completely dominant and pleas of guilty to lesser offences than those originally charged as a result of ‘plea bargaining’ between the accused or his advisers and the Crown will not ordinarily weigh heavily in the accused's favour. This part of their Honours' judgment may be modified by the new section .
The result of this consideration of the section is that a court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self-interest and even though it is a plea to lesser offences than those originally charged or intended to be charged. Doubtless, however, a plea of guilty which is indicative of remorse or of some other mitigating quality will ordinarily carry more weight than a plea dictated solely by self-interest. Nevertheless, Parliament having indicated, by the requirement that a court state the fact that it has reduced the sentence that it would otherwise have passed on account of a plea of guilty, that encouragement is to be given to pleas of guilty, such a plea should ordinarily be taken into account in the accused's favour. But nothing in this judgment should be taken as indicating a requirement that a court should pass a sentence that in all the circumstances it considers to be inappropriate.” [my emphasis]

47 Subsequent Victorian cases have reiterated the proposition that the legislation (subsequently re-enacted as s5(2)(e) of the Sentencing Act 1991 (Vic)) was intended to “encourage pleas of guilty”. See R v Giakas [1988] VR 973 at 978; R v Hall (1994) 76 A Crim R 454 at 469-470). As Charles JA succinctly put it: “the State itself benefits from the guilty plea”. (R v Donnelly [1998] 1 VR 645 at 649. See also Fox & Freiberg Sentencing: State and Federal Law in Victoria (2nd ed) pars 3.814-3.815.)

48 The position in Victoria was altered by legislative intervention. In New South Wales, the Courts accepted that utilitarian considerations could be taken into account as such and not merely as a reflection of a subjective element. Hunt CJ at CL said in R v Winchester (1992) 58 A Crim R 345 at 350:

“The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected).”

49 It was for this reason that his Honour said, with reference to s439 of the Crimes Act 1900, that that legislation “does no more than state what the law is” (350). I unhesitatingly accept his Honour’s statement of what the practice in this State was at the relevant time. I have not, however, been able to find an unambiguous statement of the utilitarian value of the plea earlier than his Honour’s own judgment in R v Paull (1990) 20 NSWLR 427 at 429. See also Director of Public Prosecutions (Cth) v EI Karhani (1990) 21 NSWLR 370 at 382; R v Laurentiu and Becheru (1992) 63 A Crim R 402 at 208. (In Cameron at [39] McHugh J identifies the development as one of “recent years”, referring to Winchester as the earliest authority.)

50 The New South Wales act states that a Court “must”, not “may”, take into account a plea. Furthermore, what is required to be taken into account is both “the fact” of the plea and “when” it was made. If a lesser penalty is not to be imposed then the Court must give reasons.

51 The statutory reference to “the fact” of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to ”when” a plea was made, a reference only to subjective elements.

52 The mandatory language of s22 must be followed whether or not by doing so the Court can be seen to “discriminate”, in the sense that word was used in the joint judgment in Cameron, against those who put the crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of “the fact” of the plea. The use of the word “must” and the reference to “the fact” of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.

53 To use the language of the Full Court in R v Morton, the New South Wales Act does not expressly contain “any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account”. However, there is no warrant for limiting such “purposes” or “circumstances” so as to restrict the Court’s attention to a subjective intention to assist the administration of justice, to the exclusion of the objective value of the plea.

54 By s34(1)(b)(i) of the Interpretation Act 1987, the Court may have regard to extrinsic material where a provision is “ambiguous or obscure”. It may be that the drafter used both words – “ambiguous or obscure” – because of the distinction between those two words drawn by one member of the House of Lords in a case where their Lordships were unanimous that a particular statutory provision was entirely unambiguous, but three Lords said the meaning was X and two said it was Y. (See Ellerman Lines Ltd v Murray [1931] AC 126 esp at 144 per Lord Blanesburgh. See Megarry A Second Miscellany-at-Law Stevens & Sons, London, 1973 pp179-180.)

55 The use of the expanded phrase “ambiguous or obscure” indicates that the Parliament did not intend to adopt a narrow definition of “ambiguous”. Not without irony, the word “ambiguous” may itself be used in different senses. ‘Ambiguity’ is not limited to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It often extends to circumstances in which the meaning is, for whatever reason, doubtful. In my opinion, it does so extend in s34 of the Interpretation Act.

56 As the authors of the third edition of Cross on Statutory Interpretation state:

“In the context of statutory interpretation the word most frequently used to indicate the doubt which a judge must entertain before he can search for, and if possible, apply a secondary meaning is ‘ambiguity’. In ordinary language this term is often confined to situations in which the same word is capable of meaning two different things; but in relation to statutory interpretation, judicial usage sanctions the application of the word ‘ambiguity’ to describe any kind of doubtful meaning of words, phrases, or longer statutory provisions.” (R Cross, Statutory Interpretation 3rd ed London, Butterworths, 1995, at 83-84.)

57 A similar broad approach of the concept of “ambiguity” is reflected in a judgment of Justice O’Connor in 1906, when his Honour said:

“It has been contended in this case that an ambiguity must appear on the face of a statute before you can apply he rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You will frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter.” ( Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 at 456-457.)

(See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288, with its reference to “a narrow conception of ambiguity”; Repatriation Commission v Vietnam Veterans’ Association (2000) 48 NSWLR 548 at [116].)

58 Accordingly, it is appropriate to have regard to extrinsic material, for purposes of construing s22 of the Crimes (Sentencing Procedure) Act 1999.

59 Second Reading Speeches are often unhelpful. Explanatory Memoranda are virtually always mere paraphrases. This, however, is an occasion on which the Second Reading Speech does assist in determining the scope of what is encompassed in “the fact” of the plea and of the significance of ”when” it was made.

60 The pertinence of utilitarian considerations was stated explicitly, and at length, in the Second Reading Speech for the amendments which introduced s439 into the Crimes Act 1900.

61 I have set out extracts from the speech in my judgment in Thomson at [7]-[9]. The essential part is also set out by McHugh J in Cameron at [40]. The relevance of utilitarian considerations was emphasised by the Attorney:

· “… even a minor change in a guilty plea has a significant effect on court time required. The guilty plea rate would therefore free up court time to deal with the backlog of cases awaiting hearing.”

· “… the police are not tied up in court for the length of a trial.”

· “Even when the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community.”

62 On the proper construction of s22 of the New South Wales Act, courts in this State are, in my opinion, permitted to take into account the objective utilitarian value of the plea. Until the High Court’s decision in Cameron, the Supreme Court of Western Australia had taken a similar view of that State’s legislation. It is, of course, perfectly possible that the effect of two similar, but not identical, statutes will differ.

63 The Sentencing Act 1995 (WA), under consideration in Cameron contains s7 and s8:

“7(1) Aggravating factors which, in the court’s opinion, increase the culpability o the offender.
(2) An offence is not aggravated by the fact that -
(a) the offender pleaded not guilty to it;
(b) the offender has a criminal record; or
(c) a previous sentence has not achieved the purpose for which it was imposed.
(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a) an offender is not liable the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
8(1) Mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
(2) A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
(3) The fact that property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence is forfeited to the Crown under a written law is not a mitigating factor.
(4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
(5) If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.”

64 In Cameron the Court had before it a case in which a plea had been entered under that State’s “fast track” system. It was submitted that the full reduction for a “fast track” plea should only be available where the prosecuting authorities had received the utilitarian benefit of not preparing the case. The Court said:

“[18] There would be force in that suggestion if s8(2) of the Sentencing Act were to be read in isolation from s7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time.
[19] Once it is appreciated that s8(2) of the Sentencing Act is to be reconciled with s7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.”

65 Nothing in the New South Wales Act expressly or implicitly refers to the common law requirement to which their Honours refer. I do not doubt that the common law principle does apply in New South Wales. However, it is not a principle which must be invoked to construe s22 in the absence of any indication, unlike the Western Australian statute, that it is a pertinent restriction on the scope of the section.

66 In pars [12] and [13] of the joint judgment in Cameron, which I have quoted above, the Court referred to the subjective perspective of “willingness to facilitate the course of justice” as being required if the distinction between allowing a deduction for a guilty plea, and not penalising an offender for pleading not guilty, is “to be seen as non-discriminatory”. The Court relied on the principle of Aristotelian ethics that equals should be treated equally and persons who are not relevantly equal should not be treated equally. (See at [15] referring to Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480.) As the joint judgment said in Wong v The Queen at [65]:

“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”

67 I do not understand the joint judgment in Cameron to have called into question the ability of a State Parliament to adopt a form of differentiation which may be, or at least may appear to be, discriminatory in the sense that word was used in the joint judgment. Insofar as that is the consequence of accepting that s22 of the Crimes (Sentencing Procedure) Act 1999 empowers the Courts of this State to give significant weight to the objective utilitarian value of a plea of guilty, then that consequence must be accepted if that is what the New South Wales Parliament has done. In my opinion, that is the case.

68 Although the legislation may have been regarded at the time as re-enacting the common law, as then understood in this State, the force of the relevant principle from that time was based on the statute rather than on the common law. Accordingly, when, in Cameron, the High Court came to restate the common law in a manner not consistent with what New South Wales judges had assumed that law to be, the statute continued to have full force and effect in accordance with its terms. That is what the statute requires. (See Giannarelli v Wraith (1988) 156 CLR 543 at 586.) In my opinion the reasoning in the joint judgment in Cameron does not apply in this State. Thomson should still be followed.

Merits of the Appeal

69 This crown appeal is based on the proposition that the sentence, particularly the non-parole period, is manifestly inadequate. The crown specifically challenges the combined discounts for the plea and the co-operation as excessive in all the circumstances.

70 There are well-known restraints on this Court intervening in the case of a crown appeal. In particular, the discretionary nature of the judgment reflected in the sentence is such that intervention on the ground of manifest inadequacy requires the Court to conclude that the sentence is so inadequate that there must have been some error of principle even though such error may not be apparent in the case of the reasons.

71 The crown drew attention to the sequence of steps that his Honour took to reach the final sentence. His Honour adopted a starting point of four years imprisonment. I do not understand the crown to be challenging the starting point and in my opinion, in the circumstances, it was appropriate. His Honour’s reasoning applied a discount of twenty-five percent for the plea, leading to a notional sentence of three years. Thereafter, his Honour applied a discount of fifty percent for co-operation with the authorities leading to a head sentence of eighteen months which is the head sentence he imposed. The combined effect was a discount of sixty-two and a half percent. Thereafter, his Honour found there to be special circumstances and varied the normal ratio, from three-quarters to two-thirds.

72 As I indicated in Thomson at [160], it will often be appropriate to combine any discount for a plea with a discount for assistance where both are pertinent.

73 The crown accepted that there should be a substantial discount for the guilty plea and also for the assistance, but that the end result was manifestly inadequate in that case.

74 Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender. (See R v Pham (1991) 55 A Crim R 128 at 135; R v Tran (1999) NSWCCA 109 at [9]-[11]; R v AEM Snr [2002] NSWCCA 58 at [96]-[102].)

75 This Court has said on numerous occasions that persons who work alone in vulnerable circumstances - like receptionists in motels – must be protected in the public interest. The fear induced in the victim, who in this case was threatened by a person with a ten inch long knife reinforced by the aggravating circumstance of a second offender, is such that this Court must regard such offences as of significant gravity.

76 In the present case, the Respondent’s degree of criminality was lessened, particularly in comparison with his co-offender, because it was the co-offender who both proposed the offence, who came prepared with a weapon and who wielded the weapon during the offence. Nevertheless, the Respondent by his presence and assistance actively participated in the crime.

77 The subjective case presented on behalf of the Respondent was of moderate strength. The material before the Court suggested that he had ceased taking heroin but his attitude and behaviour did not otherwise suggest that his prospects of rehabilitation were high. His Honour based his finding that there was contrition only on the plea. There was no clear expression of remorse. The only matters capable of supporting a substantially reduced penalty were the utilitarian value of the plea and the assistance to authorities. His Honour identified both these matters and gave them substantial weight, as he was entitled to do. The issue before the Court is whether, probably by reason of giving those considerations excessive weight, the end result was manifestly inadequate.

78 Counsel for the Respondent submitted that if the Court found error in the decision below, then it should exercise its residual discretion not to intervene. Specific reliance was placed on the fact that an increase in the non-parole period would operate particularly harshly, as the Respondent is within a few weeks of the expiration of that period.

79 In this respect the Respondent relied on an affidavit, in which he outlined that he had spent time in the harsher circumstances of protective custody and that threats were made against him, because some inmates had discovered that he had been on protection. The Respondent referred to his continued preparedness to assist the crown in the trial of his co-offender. The Court was informed that the trial of the co-offender would occur in the near future.

80 In his affidavit the Respondent indicated that he has conducted himself in a positive way in prison: completing a seven week welding course and working as a fulltime groundsman outside the Correction Centre. He also said that he has completed a drug and alcohol course and has remained drug free in prison and intends to remain drug free.

81 I take these considerations into account but, nevertheless, I believe the Court should exercise its discretion to intervene.

82 In my opinion, accepting the restraints on intervention by this Court on a crown appeal, I am of the view that the end result was manifestly inadequate and particularly so with respect to the non-parole period. I am also of the opinion that his Honour gave an excessive discount of sixty-two and a half percent for the combination of the plea and the assistance.

83 Having regard to all the circumstances which I have outlined above, in my opinion the minimum sentence that ought to have been imposed by his Honour was a sentence of two years with a non-parole period of eighteen months. But for the plea and the promise of assistance to authorities a sentence of four years would have been imposed.

84 For the reasons I discussed in R v Simpson [2001] NSWCCA 534 at [54]-[65], a sentencing judge must consider, when determining the non-parole period, what should be the minimum period of actual incarceration in all the circumstances of the offence of the offender. Nothing in the matters put before the Court suggest that there are “special circumstances” of such significance as would justify varying the usual ratio to the degree that would reduce the period of actual incarceration below eighteen months. In the event, the period of six months of supervision on parole is the same as that proposed in his Honour’s orders.

85 The orders I propose are:

1 Crown Appeal allowed.

2 Quash the sentence imposed by Woods DCJ.

3 Impose a sentence of two years imprisonment commencing on 4 May 2001 and expiring on 3 May 2003, with a non-parole period of eighteen months expiring on 3 November 2002 when the Respondent is to be released to parole.

86 MASON P: I agree with Spigelman CJ.

87 BARR J: I agree with Spigelman CJ.

88 BELL J: I agree with Spigelman CJ.

89 McCLELLAN J: I agree with Spigelman CJ.

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