Significant changes to NSW sentencing law have been made with the enactment of the Criminal Case Conferencing Trial Act (which commenced on 1 May 2008).

The new legislation will mean a dramatic reduction in the discounts available to those being sentenced at the Sydney District Court who have been committed for sentence from either Central Local Court or the Downing Centre.

Prior to this legislation, the guideline judgment of R v Thomson & Houlton (2000) NSW CCA 309; (2000) 49 NSWLR 383 stated that offenders pleading guilty could be given a discount of up to 35 per cent on sentence (depending on the timing of their plea). The tough new amendments will restrict the discounts as follows:

  • A maximum discount of 25 per cent will apply if the offender pleads guilty at anytime before committal.
  • A discount of only up to 12.5 per cent will be allowed if the offender pleads guilty at any time after the committal.
  • A discount of between 12.5 per cent and 25 per cent will apply for a plea of guilty after committal only in circumstances where an offender establishes that substantial grounds exist for allowing the discount. Under the legislation substantial grounds exists if and only if, one of the four given grounds is satisfied ¿ it is an exhaustive list.
  • No discount will be available for a plea of guilty entered by an offender to an offence that the Director of Prosecution is satisfied is too serious to warrant a discount.

Why do we allow discounts for offenders pleading guilty?

A flexible system of awarding discounts for guilty pleas has been a longstanding feature of our criminal justice system.

In the guideline judgment of R v Thomson & Houlton, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) referred to the principles behind this approach: “Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.”

Spigelman CJ also indicated that the sentencing practice of allowing discounts up to 35 per cent for pleas, encompassing all relevant matters, remained appropriate.

The High Court’s position on discounts for pleas of guilty

The High Court has similarly endorsed the practice of providing discounts to offenders pleading guilty.

In Cameron v R (2002) 209 CLR 339 Kirby J referred in detail to the following benefits that flow to the community:

  • the saving of costs, including costs for the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service;
  • the public interest in facilitating pleas of guilty by those who are guilty, and to restrict the trial process to cases where there is a real contest about guilt;
  • easing the congestion in the courts;
  • encouraging the clear–up rate for crime and to maintain public confidence in the processes established to protect the community and uphold its laws; and
  • a plea of guilty may also help the victims of crime to put their experience behind them.

The government gets tough on late pleas of guilty

Despite the sound policy reasons supporting a flexible system of sentencing discounts, the Hon John Hatzistergos (Attorney General and Minister for Justice) stated in his second reading speech: “The government for some time has been concerned with the trend in the late entry of pleas of guilty in criminal trials in this state. Despite the fact that criminal courts in NSW have made major improvements in reducing delay and achieving improvements in productivity, there has been a disturbing trend in the practice of the late pleas of guilty and late termination of proceedings.”

The new Act establishes a 12–month trial scheme which began on 1 May 2008 that will:

  • codify the discounts on sentence to be allowed by the courts in respect of guilty pleas;
  • reduce the maximum amount of sentence discount that may be allowed for guilty pleas in those proceedings; and
  • require the legal representative of an accused person and the prosecution to participate in a compulsory conference for the principal purpose of determining whether there is any offence to which the accused person is willing to plead guilty, before the accused person is committed for trial or sentence.

Life sentence offences, which include murder, certain serious heroin or cocaine trafficking offences and offences under s.61JA of the Crimes Act (Aggravated sexual assault in company) are excluded, as are all Commonwealth offences.

This Act is intended to combat the community perception that offenders are being treated leniently by the courts when fixing sentencing discounts. In this respect it has much in common with the NSW Government’s ‘tough on criminal offenders’ approach to sentencing offenders. Recent legislation that appears to have been motivated by the same political considerations has included:

  • the introduction of standard non– parole periods for an increasing number of criminal offences;
  • an increase in the aggravating factors that a sentencing court can have regard to when sentencing an offender, thereby allowing a court to more readily be able to impose a lengthier sentences;
  • an increase in the applicable maximum penalties for several criminal offences; and
  • an increase in the use of guideline judgments for certain offences to recommend minimum sentences.

The common thread in these recent pieces of legislation is the increasing reduction of a sentencing court’s discretion when sentencing offenders. The media’s perception that inadequate sentences are being handed down by the courts has been one of the key driving forces behind this process. At the time of the announcement of the Bill, anger over the sentencing of John Taufahema, who was sentenced to a minimum of seven years’ jail over the 2002 shooting of Constable Glenn McEnally, was prevalent in the media.

Some criticisms of the new legislation are outlined below.

Reversal of traditional standard of proof

The Legislation Review Committee, whose task it is to advise the government of laws that trespass unduly on personal rights and liberties, examined the legislation in issue No 4 of the Legislation Review Digest 2008. It observed that before an offender is entitled to a discount (of between 12.5 per cent and 25 per cent) following a guilty plea after committal, the offender must establish substantial grounds for allowing the discount.

Substantial grounds exist only if one of the following four prescribed grounds is satisfied:

  1. when an offender offers, prior to committal for trial, to enter a plea of guilty to a statutory alternative to the offence charged and where the offer is rejected by the prosecution and the accused is subsequently convicted of it at trial;
  2. when an accused offers to plead guilty to an alternate offence at conference and where the offer is refused by the prosecution prior to committal for trial but is accepted in the superior court;
  3. where the offer to plead guilty to an alternative charge is made for the first time and accepted after committal and the offender has no reasonable opportunity to offer to plead guilty to such an offence before the committal;
  4. where the offender was found unfit to be tried and pleaded guilty when subsequently found fit to be tried.

The Act provides that the burden of establishing the above matters lies on the offender and must be proved on the balance of probabilities. It reverses the onus of proof from the prosecution to the offender, to establish the above grounds. The committee reaffirmed the view that “the principle that the prosecutor should bear the onus of proving all the elements of an offence against the accused which is fundamental to the maintenance of personal rights and liberties, should also be consistently carried through to the evidential burden for sentencing discounts”.

The burden makes it difficult for offenders to be given a discount greater than 12.5 per cent when they have pleaded guilty after committal. By reversing the onus of proof and limiting the categories for discounts, a significant number of offenders will be deprived of a discount that they might otherwise deserve.

Interference with judicial discretion

Prescribing the sentence discount that a judge can award for an offender’s plea of guilty interferes with judicial discretion and the concept of individualised justice.

Traditionally, sentencing courts have had a significant degree of flexibility in determining what matters should be taken into account when fixing the value of the discount. This has allowed judges to have regard to a wide range of matters that may have affected the timing of the plea of guilty. As a result of taking away this discretion, there is the real possibility that injustices will occur. For example, under the new scheme someone who has maintained a ‘not guilty’ plea because of incorrect legal advice will not be entitled to the maximum discount when they finally receive proper legal advice and enter a plea of guilty.

This will also apply to offenders who may be affected by a mental condition, illiteracy, an intellectual disability or poor English language skills. The restrictive new measures will further disadvantage these individuals.

Additionally, the true value of a plea of guilty to the community, even after committal, is not being properly recognised. For example, an offender who pleads guilty after a voire dire hearing, but before the empanelling of the jury in a complex drug trial, may be able to demonstrate that they have saved six weeks of trial time and the calling of a significant number of witnesses. A maximum discount of 12.5 per cent in those circumstances appears to be arbitrary and does not accurately reflect real saving of costs to the community.

The above examples are but a few of the possible scenarios that arise in the real world of criminal litigation. Prior to the new legislation, a court would have been able to carefully weigh each of these factors and adjust the discount to reflect the true value of the plea of guilty.

New DPP powers to deprive offenders of any discount

The Director of Public Prosecutions may exclude an offender from receiving any discount if the Director is satisfied that:

  • the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by imposition of a penalty with no allowance for a discount; and
  • that it is highly probable that a reasonable jury properly instructed would convict the person of the offence.

Where the prosecutor has excluded an offence, the sentencing court is to take account of the prosecutor’s reasons for excluding the offence. The legislation does not expressly provide that a sentencing judge may override the director’s decision but simply “take it into account”. A plain English construction of that phrase would mean that the court is bound by the director’s decision.

There is no provision in the Act allowing an offender to appeal or challenge the director’s decision. This is a new and significant power that has been provided to the DPP. Under the guideline judgment of R v Thompson & Houlton the determination of whether an offender was to be denied a discount altogether was a matter for the sentencing judge alone. The fact that the DPP may now be exercising a judicial function does not appear to have been considered by the government as a worrying erosion of judicial discretion. The exercise of such a significant power without any rights of appeal creates the potential for the discretion to be used in an ad hoc and non–uniform manner, leading to inconsistent sentences being handed down.

More relevantly, it will tend to undermine the objectives of the legislation and encourage, rather than discourage, offenders from pleading not guilty, given that any incentive of a reduced sentence for pleading guilty will be removed.

Two–tiered justice system leading to inconsistent sentences

The new scheme will only be trialled for cases where the committal proceedings have taken place at the Downing Centre Local Court or Central Local Court. These courts commit matters to the Sydney District Court. Yet it is well known that the discounts that apply to offenders who plead guilty at Parramatta District Court after committal (but before the first day of trial) can be as high as 20 per cent. For an offender facing a term of full–time imprisonment, the difference between a maximum of a 12.5 per cent discount under the new legislation and a possible 20 per cent discount is significant.

It can be argued that offenders who are being sentenced in Sydney are therefore being disadvantaged, on the arbitrary basis of the geography of where their offence was committed. One may potentially expect to see an increase in the filing of appeals to the Court of Criminal Appeal, because of inconsistent discounts being applied in NSW. The very inconsistency that the Act is intended to reduce may in fact flourish under the new proposal.

Conclusion

The introduction of this Act was intended to discourage offenders from pleading guilty on the first day of the trial and to restrict judges from awarding significant sentence discounts to those offenders. However, by attempting to codify what was once a flexible and fair system, the new legislation may potentially remove the previous incentives for offenders to plead guilty. Additionally, it further erodes sentencing judges’ discretion to the extent that it may lead to unfair and inconsistent sentencing across NSW.

This article originally appeared in the Law Society Journal www.lawsociety.com.au.