Hearsay ... the Journal of the Bar Association of Queensland
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Issue 74 - Dec 2015
The Unaccepted Plea Of Guilty And Mitigation Of Sentence Print E-mail

plea_intro.jpgOrdinarily in Queensland, when an accused pleads guilty, a court will impose a lesser sentence than would have been imposed had the accused pleaded not guilty and been convicted. [1] The situation is less clear where an accused offers to plead guilty to a lesser offence to the one prosecuted and is then acquitted of the one prosecuted but convicted of the lesser offence. This article will explore the considerations that impact on the degree of any reduction in sentence.

 

MITIGATION FOR AN ACCEPTED PLEA OF GUILTY

The rational

The common law recognises that a guilty plea will entitle a convicted person to a degree of leniency in sentence. [2] The rational for this is three fold. The guilty plea may evidence:

(1) remorse, repentance or contrition;

(2) an acceptance of responsibility; and,

(3) a willingness to cooperate in the administration of justice. [3]

While remorse and acceptance of responsibility warrant leniency in their own right, a willingness to cooperate in the administration of justice has an inescapable utilitarian element. A guilty plea will avoid the cost and inconvenience of a trial (and often trauma to witnesses and others). [4]

The degree of leniency extended will depend on many factors, for example:

  • The timeliness of the plea of guilty (or notification of intention to plead guilty);
  • The extent to which the plea evidences genuine remorse;
  • Admissions and cooperation with authorities prior to the plea of guilty; and,
  • The significance of the admissions and cooperation in discovering the offence and establishing guilt.


The legislation in Queensland

The Queensland criminal justice system recognises that guilty pleas should generally mitigate penalty. The Penalty and Sentences Act 1992 (the Act) specifically provides for it.

Section 13 (1) of the Act provides that when sentencing an offender who has pleaded guilty to an offence, a court:

(a) must take the guilty plea into account, and

(b) may reduce the sentence that it would have imposed had the offender not pleaded guilty.

Section 13 (2) provides that such a reduction may be made having regard to the time at which the offender:

(a) pleaded guilty; or

(b) informed the relevant law enforcement agency of his or her intention to plead guilty.

The provisions do not require that a sentence be reduced to reflect a guilty plea, however, section 13 (4) provides that if a court does not reduce a sentence under subsection (2), then it must state that in open court, along with the reasons for not reducing the sentence.

Subsection (5) provides that failing to comply with subsection (4) does not invalidate the sentence, but the failure may be considered by an appeal court in the event of an appeal.

In summary, where an offender pleads guilty or notifies an intention to plead guilty in a timely fashion, a court ought to impose a lesser sentence than it might otherwise have imposed, unless there are reasons for not doing so. [5]

It is an error of principle not to allow any amelioration for a plea of guilty on the basis that an offender has already benefitted by the prosecution discontinuing a more serious charge. [6]

The degree of mitigation

In Queensland, ordinary mitigating factors including a timely plea of guilty, are generally reflected by a court setting a release date or a parole eligibility date of about one third of the head sentence. [7] However, neither the amount of discount nor the method are prescribed. For example, the mitigating factors could be accounted for by a court moderating the head sentence itself.

What is clear is that a rigid formulaic approach is not appropriate. In R v Robertson the court remarked that:

The authorities do not condone, in any respect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged ‘to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.’ (footnote omitted) [8]

MITIGATION FOR AN UNACCEPTED PLEA OF GUILTY OR OFFER TO PLEAD GUILTY

It is clear enough that ordinarily a timely plea of guilty, or a timely indication of an intention to plead guilty, ought to be reflected in a lesser sentence than might otherwise have been imposed. The position is less certain where an offender offers to plead guilty to an alternative offence to that prosecuted, and is then acquitted of the one prosecuted, but convicted of the other offence. Both the availability and extent of any discount is less certain and subject to more variables.

Arguably, the touchstone in accounting for the offer should remain the extent to which the three mitigating factors noted in I above are evident from the conduct of the convicted person. That is, to what extent does the person’s offer to plead guilty and associated conduct evidence:

(1) remorse;

(2) an acceptance of responsibility; and,

(3) a willingness to cooperate with the administration of justice.

Of course, quantifying these matters has a degree of complexity not present in the case of a simple plea of guilty. In the later case, the accused conduct is to some extent shaped by the interaction with, and conduct of, the Crown.

Further, there is some authority that additional factors, such as the reasonableness of the Crown’s refusal to accept the offer, might influence the degree of credit for the unaccepted offer.

FACTORS INFLUENCING THE AVAILABILITY AND DEGREE OF ANY LENIENCY

The timeliness of the offer to plead, pleading guilty to the alternative charge at trial and the conduct of the trial

The authorities demonstrate that an offender’s rejected offer to plead guilty to the only offence for which the offender is convicted ought to be accounted for on sentence. A consideration of all of the circumstances will determine the extent of any reduction in sentence. An early offer to plead guilty to an alternate charge, followed by a plea of guilty at trial and admissions to narrow the triable issue at trial, accordingly warrants the greater discount where a conviction then follows.

In R v Marshall Fitzgerald P said:

In my opinion, the appellant’s offer to plead guilty to the only offence of which he was convicted was a relevant matter to be brought to account in the exercise of the sentencing discretion. Such a conclusion is clearly consistent with the policy enunciated in s. 13 of the Penalties and Sentences Act 1992. What weight is given to the offer may depend upon a variety of other circumstances, including any terms attached to the offer and the time at which the offer is made. [9]

This proposition was considered in R v Lyon. [10] Mr Lyon was prosecuted for offences against his ex-wife. He entered pleas of not guilty and was tried for attempted murder, burglary with circumstances of aggravation and wounding with intent to do grievous bodily harm. He was acquitted of the attempted murder and convicted of the other offences.

Before trial there had been three written offers to plead guilty to all charges but the attempted murder. On appeal, the majority found that the sentencing judge had not been adequately informed of these offers and consequently had not taken them into account on sentence.

Jerrard JA with whom Douglas J agreed referring to Fitzgerald P’s statement said:

Accepting that proposition as both sensible and authoritative, the benefit from such offers in any particular case depends upon the extent to which the person convicted co-operates with the administration of justice during the trial, or offers to, or demonstrates remorse. [11]

Mr Lyon had not entered guilty pleas before the jury in respect of the offences for which he was convicted; nor had he narrowed the issues at trial by making admissions. Nevertheless, the majority found that he was entitled to some reduction for being prepared to cooperate with the administration of justice, reflected by his offers to plead guilty, and for being justified in his plea of not guilty to attempted murder. In the result, the sentence of nine years with a serious violent offence declaration was reduced to seven years with the declaration.

Fryberg J, in his dissenting judgment agreed that an offer of the kind made in this case was a relevant consideration in sentencing an offender. He observed that it was therefore necessary to identify the offer or offers and the circumstances in which they were made. In this context he emphasised the importance of the timing of any offer. Unsurprisingly, he noted that offers made before, at, or even just after committal attract a greater discount than those delayed until after an indictment is presented. Those who wait to assess the strength of the prosecution case cannot expect the same benefit as those who plead guilty or express an intention to plead guilty at an early stage. [12]

Fryberg J noted that Mr Lyon made a conditional offer to plead guilty prior to the committal hearing. The offer was rejected. Fryberg J then went on to detail the very substantial discount he would have given, had he been the sentencing judge, and had Mr Lyon actually entered the pleas of guilty as he had offered to do. [13]

He went on to consider the conduct of Mr Lyon’s trial. Mr Lyon made no admissions to expedite his trial and sought exoneration on all counts. He concluded:

The present applicant has demonstrated some willingness to cooperate in the administration of justice by his early offers; but because of his conduct at trial, the weight to be attributed to that willingness is very limited. [14]

Given those circumstances he would have only reduced the applicant’s head sentence by two months.

plea2.jpgThe reasonableness of the prosecution’s rejection of an offer to plead guilty to a lesser offence

The degree of leniency for a guilty plea in the face of a near certain conviction had the matter proceeded to trial, is debatable. [15]

Similarly, views differ about the extent to which the reasonableness of the prosecution’s rejection of an offer to plead guilty to a lesser offence ought to influence leniency. In R v Marshall [16] , the applicant had been charged on indictment with attempted murder and alternatively, wounding with intent to cause grievous bodily harm. The day before trial the applicant offered to plead guilty to unlawful wounding in satisfaction of the indictment. That offer was rejected and the applicant was acquitted of the indicted offences but convicted of wounding.

This was a late offer to plead guilty and without formal admissions at trial. In this case it was not clear whether any such admissions would have expedited the trial or saved resources or the inconvenience of witnesses. Pincus JA in the majority, referring to the offer to plead guilty noted:

That the Crown acted reasonably in refusing it did not, in my opinion, deprive the offer to plead guilty to the offence of which the applicant was ultimately convicted of all weight. … To put that more simply, I find it difficult to see why the applicant’s position should be worse than if the Crown had charged him with, and he had pleaded guilty to, unlawful wounding. [17]

It was noted that the applicant could have pleaded guilty to unlawful wounding, but only with the Crown’s consent.

This case can be contrasted to R v Clark; ex parte A-G [18] . This was an appeal against conviction (which was dismissed) and an Attorney General’s appeal against sentence. After a four week trial, Clark was acquitted of murder but convicted of manslaughter. He was sentenced to eleven years imprisonment with a recommendation for consideration for eligibility for parole after four and a half years. He had offered to plead guilty to manslaughter close to trial and this was a suggested justification for the recommendation. While the court found that the head sentence could not be reasonably challenged, it did vary the sentence by deleting the parole recommendation.

In his lead judgement De Jersey CJ said this of the offence:

It is a grave example of manslaughter. The respondent had only recently met the deceased. The manner of disposal of the body was brutal and inspires revulsion. There was no suggestion of remorse. [19]

He noted the sentencing judge’s findings of fact including that the female deceased met the respondent at a nightclub; she went with him along a track by the Brisbane River; she refused to have sexual intercourse with him and was assaulted. The respondent either smothered her or otherwise rendered her unconscious, then tied her to a piece of wood and put her in the river where she drowned. Or alternatively, he drowned her by holding her underwater, then tied her to the wood. Whether sexual intercourse took place could not be established. [20]

The Chief Justice said:

As to the offer to plead guilty to manslaughter, it is plain to me that the Crown could not reasonably have accepted it in discharge of the indictment. The public interest strongly warranted the Crown’s pursuing this charge of murder. … Had the respondent when arraigned pleaded not guilty to murder but guilty to manslaughter, the position would have been somewhat different. There would then have been some consequent saving of public resources. But the respondent, one infers, preferred to preserve his chance of an outright acquittal. The offer of the plea cannot be regarded as suggestive of remorse. In these circumstances, I cannot see that it should have weighed in any degree in favour of the respondent when the judge came to sentence him. [21]

It is difficult to reconcile these two cases. They demonstrate, perhaps, that more credit is due on sentence where there is both an early offer to plead guilty to a lesser charge, and, where possible, an actual plea of guilty to a lesser charge (albeit a rejected plea).

CONCLUDING OBSERVATIONS AND SUGGESTED APPROACH

Ordinarily an unaccepted offer to plead guilty to an offence, where the accused is later convicted of that offence, should be accounted for at sentence. However, the degree of leniency to be extended is debatable.

One way for counsel to approach the dilemma is to return to the rationale behind taking account of the guilty plea and apply it to the unaccepted offer to plead guilty. That is, to urge the sentencing judicial officer to consider the reality and degree of remorse, acceptance of responsibility and cooperation in the administration of justice.

A timely offer to plead guilty to an alternative charge, a plea of guilty at trial and admissions at trial are but three of the myriad factors that may evidence remorse, acceptance of responsibility and cooperation. There are other sources of evidence. For example, statements of contrition contemporaneous with the offence, offers of restitution, willingness to engage in restorative justice, apologies, mental or physical deterioration of an accused consequent to the offence and the commencement of counselling or other treatment aimed at rehabilitation.

If after considering all the evidence, the picture is one of a remorseful accused who has accepted responsibility and cooperated in the administration of justice, then the leniency to be extended should be greater than otherwise.

Franklin Richards* 

* Franklin Richards is a Legal Aid Queensland in-house barrister based in Townsville. He was admitted to the bar in 1997 and has worked in private practice, with the Aboriginal and Torres Strait Islander Legal Service and the Qld ODPP.



[1] Circumstances that are out of the ordinary include those where other factors are mandated as primary considerations. For example see Penalty and Sentences Act 1992 section 9(3).

[2] AB v The Queen (1999) 198 CLR 111 at 155, 156.

[3] While (1) and (3) are described in R v Shannon (1979) 21 SASR 442 at 452, other considerations in the public interest may also be reflected by a guilty plea. An acceptance of responsibility is an example of such a consideration (see footnote 4 below).

[4] In Cameron v The Queen (2002) 209 CLR 339 at 343 [14] Gaudron, Gummow and Callinan JJ said: ‘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 rational 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.’

[5] R v Maxfield [2002] 1 Qd R 417 at 423 per Davies JA and Fryberg J

[6] R v Crocker [1999] QCA 377

[7] R v Hoad (2005) QCA 92 at [31]. However, this approach is not always possible where mandatory sentencing provisions apply. See for example, Penalty and Sentences Act 1992 section 9(4) and Drugs Misuse Act 1986 section 5(2).

[8] [2008] QCA 164 at [6]. These remarks were quoted with approval in R v Torrens [2011] QCA 38

[9] R v Marshall [1995] 1 Qd R 673 at 673

[10] [2006] QCA 146

[11] at [28]

[12] at [47]

[13] at [48]

[14] at [58]

[15] See for example R v Bulger [1990] 2 Qd R 559, R v Chai [1998] QCA 187 and R v Tran [2007] QCA 221

[16] [1994] QCA 161

[17] at page 4.

[18] [1999] QCA 438

[19] at [36]

[20] at [37]

[21] at [41]


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