Lester Fernandez Paper 2

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The purpose of this paper is to explore, in some depth, some of the fundamental
aspects of sentencing.


1. An Instinctive synthesis of all the relevant matters

There are two main approaches in which a Court can arrive at a sentence.

The first approach is a "two-tiered" approach to sentencing. If following this
process, a Court will begin with an objectively determined sentence, and then
arithmetically adjust the sentence to take into account various subjective factors.

The second approach is the "instinctive synthesis approach" to sentencing. This
approach was described in R v Williscroft [1975] VR 292 at 300 by the Full Court
of the Supreme Court of Victoria in the following way:

       Ultimately every sentence imposed represents the sentencing
       judge's instinctive synthesis of all the various aspects involved in
       the punitive process. Moreover, in our view, it is profitless ... to
       attempt to allot to the various considerations their proper part in the
       assessment of the particular punishments presently under

The proper approach to sentencing in this state is the instinctive synthesis
approach (R v Thompson; R v Houlton (2000) 49 NSWLR 383 at paragraph 57
per Spigelman CJ).

It is useful to discuss some of the recent cases on sentencing to explain the
differences in these approaches to sentencing.

In his dissenting judgment in AB v R (1999) 198 CLR 111 at 121-122, McHugh J
said of the two-tiered approach to sentencing that:

      First, it assumes that sentencing an offender is some mechanical or
      mathematical process. It is not. Nobody can identify, let alone define,
      some precise relationship between the complex and infinitely various
      elements that bear upon what sentence is to be imposed on an offender
      … No calculus will reveal some mathematical relationship between this
      appellant's remorse, the harm he has inflicted on his victims and society's
      denunciation of what he did to them. A sentencing judge can do no more
      than weigh these and the many other factors (such as retribution and
      deterrence) that bear upon the question and express the result as several
      terms of imprisonment to be served, wholly or partly concurrently or
      consecutively. Remorse, harm, denunciation, retribution and deterrence -
      in the end, all these and more must be expressed by a sentencing judge in
      units of time. That is a discretionary judgment. It is not a task that is to be
      performed by calculation. Resort to metaphors such as "discount" or
      "allowance" must not be taken as suggesting that it can be.

These remarks were approved in Wong v R (2001) 76 ALJR 79 at paragraph 77
by Gaudron, Gummow and Hayne JJ, who held that the two-tiered approach to
sentencing is an approach that departs from principle and should not be adopted

      The core of the difficulty lies in the complexity of the sentencing task. A
      sentencing judge must take into account a wide variety of matters which
      concern the seriousness of the offence for which the offender stands to be
      sentenced and the personal history and circumstances of the offender.
      Very often there are competing and contradictory considerations. What

       may mitigate the seriousness of one offence may aggravate the
       seriousness of another. Yet from these the sentencing judge must distil an
       answer which reflects human behaviour in the time or monetary units of

Therefore, a Court in fixing an appropriate sentence will have regard to all the
considerations relating to the objective seriousness of offences before it, the
subjective backgrounds of the people who commit those offences, and the
differing purposes of punishment (see Dinsdale v R (2000) 202 CLR 321; R v
JCE [2000] NSWCCA 498; R v Zamagias [2002] NSWCCA 17).

Although it is clear that the proper approach to sentencing is by way of instinctive
synthesis, there are a number of areas that suggest that the two-tiered approach
still has effect. For example, any sentence imposed must always be
proportionate to the gravity of the offence for which a person is to be sentenced
(see Veen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson,
Toohey JJ at 486, per Wilson J at 491, per Deane J). This suggests a two-tiered
approach. A further example is in the "two steps" which are required before a
suspended sentence can be imposed.

It is beyond the scope of this paper to go into any greater detail about these
different approaches to sentencing, but reference is made to the analysis of
these issues by Spigelman CJ in R v Thompson; R v Houlton at paragraphs 54 -
113 and to R v McGourty [2002] NSWCCA 335 at paragraphs 42 - 45, where
Hunt CJ at CL discussed the merits of both types of approaches to sentencing.

2. Matters to be considered in every sentencing exercise

The following matters are to be considered in every sentencing exercise:

      The purposes of sentencing, which are set out in s 3A Crimes (Sentencing
       Procedure) Act 1999 (NSW).

      The aggravating and mitigating factors which are present, and which are
       set out in s 21A Crimes (Sentencing Procedure) Act 1999 (NSW).

      The maximum penalty prescribed by the legislature for the offence(s).

      Section 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW).

       This section provides that a court must not sentence an offender to
       imprisonment unless it is satisfied, having considered all possible
       alternatives, that no penalty other than imprisonment is appropriate.

      Particular sentencing principles that may be applicable for the specific
       offence(s) and offender.

       For example, general deterrence is important in sentencing for offences of
       child sexual assault (R v Burchell (1987) 34 A Crim R 148) and drug
       importation (Muanchukingkan (Boonchu) (1990) 52 A Crim R 354), but is
       given lesser weight when dealing with offenders suffering from mental
       illness or intellectual disability (R v Scognamiglio (1991) 56 A Crim R 81;
       R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18
       March 1992) and youthful offenders (R v GDP (1991) 53 A Crim R 112).

For a good example of a case where all of these matters were considered in
sentencing, see R v Yeomans [2003] NSWSC 194, in which Buddin J in the

Supreme Court gave the prisoner a four year good behaviour bond for

3. The relationship between the objective aspects of an offence and the
subjective background of the offender

It is important to consider the relationship between the objective aspects of an
offence and the subjective aspects of the offence.

Thee relationship between these two aspects can be seen in the following
passage from Dodd (1991) 57 A Crim R 349 at 354 where the Court said:

      As Jordan CJ pointed out in R v Geddes (36 SR at 556), making due
      allowance for all relevant considerations, there ought to be a reasonable
      proportionality between a sentence and the circumstances of the crime,
      and we consider that it is always important in seeking to determine the
      sentence appropriate to a particular crime to have regard to the gravity of
      the offence viewed objectively, for without this assessment the other
      factors requiring consideration in order to arrive at the proper sentence to
      be imposed cannot properly be given their place.

      Each crime, as Veen v R (No 2) (1987-88) 164 CLR 465 at 472 stresses,
      has its own objective gravity meriting at the most a sentence proportionate
      to that gravity, the maximum sentence fixed by the legislature defining the
      limits of sentence for cases in the most grave category. The relative
      importance of the objective facts and subjective features of a case will
      vary. (See, for example, the passage from the judgment of Street CJ in R
      v Todd [1982] 2 NSWLR 517 quoted in Mill v The Queen (1988) 166 CLR
      59 at 64). Even so, there is sometimes a risk that attention to persuasive
      subjective considerations may cause inadequate weight to be given to the
      objective circumstances of the case (R v Rushby [1977] 1 NSWLR 594).

        We consider that to have happened here. In our view the requirement of a
        reasonable proportionality with the circumstances of the crime called for a
        significant full-time custodial sentence.

                      II. THE PURPOSES OF SENTENCING

The starting point in any sentencing exercise is the purposes of criminal

The purposes of sentencing were previously a part of the common law. These
purposes, and how they relate to each other, were referred to in Veen (No.2)
(1988) 164 CLR 465 at 476 where Mason CJ, Brennan, Dawson and Toohey JJ

        However, sentencing is not a purely logical exercise, and the troublesome
        nature of the sentencing discretion arises in large measure from
        unavoidable difficulty in giving weight to each of the purposes of
        punishment. The purposes of criminal punishment are various: protection
        of society, deterrence of the offender and of others who might be tempted
        to offend, retribution and reform. These purposes overlap and none of
        them can be considered in isolation from the others when determining
        what is an appropriate sentence in a particular case. They are guideposts
        to the appropriate sentence but sometimes they point in different

1. Section 3A Crimes (Sentencing Procedure) Act 1999 (NSW)

The purposes of sentencing are now set out in s 3A Crimes (Sentencing
Procedure) Act 1999 (NSW), as follows:

        (a) to ensure that the offender is adequately punished for

       the offence,

       (b) to prevent crime by deterring the offender and other
       persons from committing similar offences,

       (c) to protect the community from the offender,

       (d) to promote the rehabilitation of the offender,

       (e) to make the offender accountable for his or her actions,

       (f) to denounce the conduct of the offender,

       (g) to recognise the harm done to the victim of the crime
       and the community.

Section 3A does not give any guidance as to which of these purposes is to have
priority in any given sentencing exercise.

Section 3A brings about changes to sentencing practice from the common law.
These changes were referred to obiter statements in Attorney General's
Application Under S 37 Of The Crimes (Sentencing Procedure) Act 1999 No 2 Of
2002 [2002] NSWCCA 515. This was a case where the Attorney General
unsuccessfully applied to the Court of Criminal Appeal for a guideline judgment
relating to offences of Assault Police (section 60(1) Crimes Act).

Spigelman CJ stated at paragraphs 57 – 60 that:

       Further, this Court did not receive submissions about the impact of s3A of
       the 1999 Act which also takes effect from 1 January 2003. It is arguable
       that some of the "purposes of sentencing" which must now guide

       sentencing decisions constitute a change of pre-existing sentencing

       For example, "prior" case law refers to the role of sentencing to protect the
       community, but that objective was often said to be achieved by means of
       rehabilitation, deterrence or retribution. Section 3A(c) now suggests that
       this should be regarded as a separate "purpose" and one concerned with
       protection of the community "from the offender".

       It may also be arguable that s3A(c) - making the offender "accountable" -
       introduces a new element into the sentencing task. The same may be true
       of the reference to "harm" to "the community" in s3A(g).

       In the absence of argument, I would not wish to be understood to be
       expressing a view on these matters.

2. Interpreting section 3A

The Supreme Court of Canada in R v Gladue [1999] 1 SCR 688 has interpreted
provisions found in Canadian Criminal Code, RSC 1985, s 718(2), which
contains very similar provisions to s 3A.

Canadian Criminal Code, RSC 1985, s 718(2) is in these terms:

       The fundamental purpose of sentencing is to contribute, along with crime
       prevention initiatives, to respect for the law and the maintenance of a just,
       peaceful and safe society by imposing just sanctions that have one or
       more of the following objectives:

       (a) to denounce unlawful conduct;

       (b) to deter the offender and other persons from committing offences;

       (c) to separate offenders from society, where necessary;

       (d) to assist in rehabilitating offenders;

       (e) to provide reparations for harm done to victims or to the community;

       (f) to promote a sense of responsibility in offenders, and acknowledgment
       of the harm done to victims and to the community.

While the Canadian provisions go further than the New South Wales provisions
(for example, in referring to promoting "a sense of responsibility in offenders"
rather than "to make an offender accountable for his or her actions") the two sets
of provisions are sufficiently similar so that an interpretation of the Canadian
provisions assists in interpreting the New South Wales provisions.

In Gladue, the Court said at paragraph 43, that:

       Clearly, s. 718 is, in part, a restatement of the basic sentencing aims,
       which are listed in paras. (a) through (d). What are new, though, are
       paras. (e) and (f), which along with para. (d) focus upon the restorative
       goals of repairing the harms suffered by individual victims and by the
       community as a whole, promoting a sense of responsibility and an
       acknowledgment of the harm caused on the part of the offender, and
       attempting to rehabilitate or heal the offender. The concept of restorative
       justice which underpins paras. (d), (e), and (f) is briefly discussed below,
       but as a general matter restorative justice involves some form of restitution
       and reintegration into the community. The need for offenders to take
       responsibility for their actions is central to the sentencing process … In our
       view, Parliament's choice to include (e) and (f) alongside the traditional
       sentencing goals must be understood as evidencing an intention to

       expand the parameters of the sentencing analysis for all offenders.
       (Emphasis added).

These observations are clearly applicable to interpreting s 3A.

3. Restorative justice

As evident from the above extract, the Canadian Supreme Court in Gladue found
that the concept of restorative justice underpinned paragraphs (d), (e), and (f) of
Canadian Criminal Code, RSC 1985, s 718(2) s 718.

Restorative justice was defined in Gladue (at paragraph 71) as:

       In general terms … an approach to remedying crime in which it is
       understood that all things are interrelated and that crime disrupts the
       harmony which existed prior to its occurrence, or at least which it is felt
       should exist. The appropriateness of a particular sanction is largely
       determined by the needs of the victims, and the community, as well as the
       offender. The focus is on the human beings closely affected by the crime.

The Court compared the different approaches to sentencing in these terms (at
paragraph 72):

       Restorative justice necessarily involves some form of restitution and
       reintegration into the community. Central to the process is the need for
       offenders to take responsibility for their actions. By comparison,
       incarceration obviates the need to accept responsibility. Facing victim and
       community is for some more frightening than the possibility of a term of
       imprisonment and yields a more beneficial result in that the offender may
       become a healed and functional member of the community rather than a
       bitter offender returning after a term of imprisonment.

It should be noted that even before s 3A, restorative justice principles have been
expressly approved as being applicable to sentencing in New South Wales (R v
Qutami [2001] NSWCCA 353).

4. How is restorative justice to be incorporated into sentencing?

In Gladue, some of the principles of restorative justice to be applied in sentencing
were detailed as follows:

      Restorative sentencing goals do not usually correlate with the use of
       prison as a sanction (at paragraph 44).

      Through its reference to the community, restorative justice principles
       would lead sentencers to consider whether imprisonment would actually
       serve to deter or to denounce crime in a sense that would be meaningful
       to the community from which an offender comes from. In many instances,
       more restorative sentencing principles will gain primary relevance because
       the prevention of crime as well as individual and social healing cannot
       occur through other means (at paragraph 69).

      Sentencing Judges would have to consider the place of the offender within
       the community, and to enquire as to what understanding of criminal
       sanctions is held by the community, and what the nature of the
       relationship is between the offender and his or her community (at
       paragraph 80).

These principles do not mean that sentences of imprisonment will no longer be
imposed. However, all the considerations mentioned above can be included in
submissions as to the appropriate nature, length and structure of sentences,
such as:

   That sentences should be imposed that reflect all the considerations
    involved in section 3A Crimes (Sentencing Procedure) Act 1999 (NSW).

    Examples of recent cases which have referred to the principle that
    sentences should reflect all the purposes of sentencing are R v
    Montesinos [2002] NSWCCA 470 and R v Meyer [2002] NSWCCA 451.

   That special circumstances should be found.

    In relation to special circumstances there are differing views as to whether
    the law in relation to finding special circumstances may have changed
    since the amendments to s 44 Crimes (Sentencing Procedure) Act 1999
    (NSW) brought about by the Crimes (Sentencing Procedure) Amendment
    (Standard Minimum Sentencing) Act 2002 (NSW) which commenced on 1
    February 2003.

    On one view, the law in relation to finding special circumstances remains
    the same as it was under the previous s 44. On another view, the law has
    changed, resulting in a finding of special circumstances leading to a longer
    parole period and therefore a longer head sentence. Until the Court of
    Criminal Appeal determines this issue, s 44 can be interpreted in both

   That an adjournment pursuant to s 11 Crimes (Sentencing Procedure) Act
    1999 (NSW) may be appropriate.

    For example, such an adjournment may allow an offender to make
    suitable reparation to the victims (noting that section 11(1)(c) Crimes
    (Sentencing Procedure) Act allows an adjournment for “any other purpose
    the court considers appropriate in the circumstances”. See below for a
    discussion of the nature of section 11 bonds.

      The appropriateness of sentences of imprisonment being suspended.

       See, for example, Dinsdale v R (2000) 202 CLR 321; R v JCE (2000) 120
       A Crim R 18; and R v Zamagias [2002] NSWCCA 17 per Howie J
       especially at paragraph 32, and the discussion immediately below.

                         III. SENTENCING OPTIONS

A. Suspended sentences

R v Zamagias [2002] NSWCCA 17 involved a Crown appeal against the
inadequacy of a sentence imposed in the District Court.

A jury had convicted Zamagias of Malicious Wounding with Intent to Inflict
Grievous Bodily Harm following trial. The sentencing Judge imposed a sentence
of imprisonment of two years, which was suspended upon the entering into of a
good behaviour bond with conditions.

The Court of Criminal Appeal held that the sentence imposed in the District Court
was manifestly inadequate having regard to the objective seriousness of the
offence. Taking into account the principles involved in a successful Crown
appeal, a sentence of imprisonment to be served by way of periodic detention
was substituted.

Zamagias is an important case because Howie J set out the authorities which
deal with the considerations and procedure involved in imposing suspended
sentences (at paragraphs 26 - 30), and because Howie J also referred to the
following aspects of suspended sentences:

      That a suspended sentence can be a significant and effective punishment
       (paragraph 31).

      That a sentencing court must approach the imposition of a suspended
       sentence on the basis that it can be a sufficiently severe form of
       punishment to act as a deterrent to both the general public and the
       particular offender (paragraph 32).

      The fact that the execution of the sentence is to be suspended will deprive
       the punishment of much of its effectiveness because it is a significantly
       more lenient penalty than any other sentence of imprisonment (paragraph

      Although the purpose of punishment is the protection of the community,
       that purpose can be achieved in an appropriate case by a sentence
       designed to assist in the rehabilitation of the offender at the expense of
       deterrence, retribution and denunciation. In such a case a suspended
       sentence may be particularly effective and appropriate (paragraph 32).

B. Section 11 Crimes (Sentencing Procedure) Act 1999 (NSW)

Section 11 Crimes (Sentencing Procedure) Act 1999 (NSW) states that:

       (1) A court that finds a person guilty of an offence (whether or not it
       proceeds to conviction) may make an order adjourning proceedings
       against the offender to a specified date, and granting bail to the
       offender in accordance with the Bail Act 1978:

       (a) for the purpose of assessing the offender’s capacity and
       prospects for rehabilitation, or

       (b) for the purpose of allowing the offender to demonstrate
       that rehabilitation has taken place, or

       (c) for any other purpose the court considers appropriate in
       the circumstances.

       (2) The maximum period for which proceedings may be adjourned
       under this section is 12 months from the date of the finding of guilt.

       (3) This section does not limit any power that a court has, apart
       from this section, to adjourn proceedings or to grant bail in relation
       to any period of adjournment.

Section 11 is the statutory equivalent of the now abolished common law Griffiths
remands (named after R v Griffiths (1977) 137 CLR 293).

The equivalent provision to s 11 relating to children is section 33(1)(c2) Children
(Criminal Proceedings) Act.

An important decision in relation to s 11 is R v Trindall [2002] NSWCCA 364.

Trindall involved a Crown appeal against the inadequacy of orders made by the
sentencing Judge in the District Court. Trindall pleaded guilty to Robbery in
Company. The sentencing Judge remanded Trindall to a date and place to be
fixed by the Crown in consultation with the Court and with Trindall's legal
representatives. Trindall was granted bail on conditions which included that he
attend a residential rehabilitation facility. The sentencing Judge made it clear that
he was going to eventually sentence Trindall to a period of imprisonment, but the
sentencing Judge was concerned with the length of the sentence and the non
parole period in particular.

In the Court of Criminal Appeal, the Crown appeal was dismissed. The matter
was remitted to the sentencing Judge, however, to fix a hearing date for
sentence, as s 11 requires.

Smart AJ gave the leading judgment, addressing the effect of section 11
generally and on the pre-existing law. Three of the issues in his judgment in
relation to section 11 are set out below, as is one further issue in relation to s 11.

1. The purposes of section 11

Smart AJ made these observations:

         In enacting s 11 Parliament specified the purposes as being assessing the
          offender's capacity and prospects of rehabilitation, allowing the offender to
          demonstrate that rehabilitation has taken place or for any other purpose
          the Court considers appropriate (at paragraph 58).

         While the prospects of rehabilitation should be considered in whether an
          offender should be gaoled and in relation to the length of the head
          sentence, the prospects of rehabilitation are also of great importance
          when fixing the non-parole period (at paragraph 59).

The possibilities for s 11 are wide, especially in terms of "any other purpose that
the court considers appropriate" pursuant to s 11(1)(c). Smart AJ gave examples
of these other purposes as:

         If an offender were at a significant risk of suicide if the offender remained
          in custody, for example, arising from severe depression (paragraph 58).

         To enable recommended and important surgery to take place (paragraph

These following purposes of sentencing contained in section 3A Crimes
(Sentencing Procedure) Act are particularly relevant to the appropriateness of s

       (d) to promote the rehabilitation of the offender,
       (e) to make the offender accountable for his or her actions,
       (g) to recognise the harm done to the victim of the crime
       and the community.

It should also be noted that the protection of the community from the offender (s
3A(c) Crimes (Sentencing Procedure) Act 1999 (NSW) is also contributed to by
the successful rehabilitation of offenders (Yardley v Betts (1979) 22 SASR 108 at
112-3 per King CJ). This is another argument in favour of the application of s 11
in appropriate cases.

If there are steps or programmes that address these purposes of sentencing,
they add weight to a submission that s 11 should be utilised.

2. Appropriate matters for the use of section 11

In indicating what matters were appropriate to be dealt with by s 11, Smart AJ
referred to the legislative history of s 11 and said that:

      In many instances it will be of great assistance to the sentencing judge if
       there is an adjournment to enable the offender to demonstrate that
       rehabilitation has taken place or is well on the way (at paragraph 60).

      It is better for the court to have evidence of what has actually taken place
       than to have to base its decision on the opinions of experts, assertions by
       the offender and what has happened over a short period of time, that is,
       since the commission of the offence or the offender's arrest (at paragraph

These sentiments were echoed in R v RAI [2002] NSWCCA 506. Hulme J (at
paragraph 13) referred to the authorities which state that, although prospects of

rehabilitation are always matters to be taken into account on sentence, there is
no doubt that rehabilitation which is demonstrated to have in fact occurred is
given added weight. The use of section 11 in such a situation is therefore very
important in this regard.

3. The effect of successful progress during a section 11 adjournment on the final
sentence imposed

There was precedent that Griffiths remands should not be imposed if, should
rehabilitation be achieved, it would be inappropriate to impose a non custodial
sentence (R v Tindall & Gunton (1993) 74 A Crim R 275). It was considered that
if it were otherwise, a defendant would have a justifiable sense of grievance if a
custodial sentence was imposed after complying with the conditions of a Griffiths

Smart AJ (at paragraph 48) doubted that an offender who complied with a
Griffiths remand and who was then given a custodial sentence would have a
justifiable sense of grievance.

Smart AJ stated at paragraph 64 that:

       The granting of a Griffiths remand is likely to arise for consideration in a
       relatively small number of cases. Generally, such a remand should not be
       granted unless there are good reasons for concluding that it is likely to
       assist the court in determining whether an offender should be sent to gaol
       or in fixing the length of the sentence or the non-parole period. If the latter
       be the case, the judge should, as here, make it clear to the offender that
       he will be going to gaol and that the purpose of the remand is to assist the
       court in fixing the non-parole period.

Section 11 can therefore be useful in assisting sentencing courts in determining
non parole periods. Smart AJ stated his confidence (at paragraph 62) that many
offenders will still take their chances with s 11 adjournments.
4. Delay in a defendant's sentencing as a result of a section 11 adjournment

Section 11 allows for a delay of up to twelve months in the finalisation of
sentencing proceedings. The considerations relating to such a delay in sentence
proceedings were referred to in R v Palu [2002] NSWCCA 381.

Palu was a Crown inadequacy appeal where there had been a number of
irregularities in the way the matter was dealt with in the District Court before the
matter was adjourned pursuant to s 11. Because of these irregularities, the
Crown appeal was upheld and the matter was remitted to the District Court for

In relation to the issue of delay, Howie J noted at paragraphs 29 - 30 that unless
the further delaying of the sentencing of the offender is wholly justified in order to
ensure that the sentencing discretion is properly exercised, there would be a
miscarriage of justice. Unless delay in the sentencing of the offender is essential
in order to ensure a just result, sentencing courts will have failed in their duty
both to offenders and to the community.

If an application for an adjournment of a matter pursuant to s 11 is to be made,
the issue of delay in the sentencing will need to be addressed.


Section 22 Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly states that

       (1)    In passing sentence for an offence on an offender who has pleaded
              guilty to the offence, a court must take 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.

Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) states that a
plea of guilty as provided by s 22 Crimes (Sentencing Procedure) Act 1999
(NSW) is a mitigating factor.

In New South Wales, there is a guideline judgment on pleas of guilty, which is R
v Thompson; R v Houlton (2000) 49 NSWLR 383.

Among the important observations relating to pleas of guilty made in the case,
the guideline judgment states that:

      A sentencing judge should explicitly state that a plea of guilty has been
       taken into account. Failure to do so will generally be taken to indicate that
       the plea was not given weight (at paragraph 160(i)); and

      Sentencing judges are encouraged to quantify the effect of the plea on the
       sentence insofar as they believe it appropriate to do so (at paragraph

A. The utilitarian value of a plea of guilty

1. An assessment of the utilitarian value of the plea of guilty

The utilitarian value is the benefit to the criminal justice system in the time and
expense of a hearing or trial being avoided, and the fact that witnesses will not
required to give evidence.

In R v Thompson; R v Houlton Spigelman CJ at paragraph 160(iii) said the
following in relation to an assessment of the utilitarian value of the plea of guilty:

       The utilitarian value of a plea to the criminal justice system should
       generally be assessed in the range of 10-25 percent discount on
       sentence. The primary consideration determining where in the range a
       particular case should fall, is the timing of the plea. What is to be regarded
       as an early plea will vary according to the circumstances of the case and
       is a matter for determination by the sentencing judge.

The complexity of issues at a hearing or trial will also be relevant to an
assessment of the utilitarian value of the plea (R v Thompson; R v Houlton at
paragraphs 54 - 155). The greater the length and complexity of the trial, the
greater the utilitarian value of a plea.

2. The strength of the Crown case is not to be considered when determining the
utilitarian value of a plea of guilty

In R v Thompson; R v Houlton Spigelman CJ said at paragraphs 136 - 138 that:

       Separation of the elements of contrition and utilitarian value in the plea of
       guilty requires a consideration of whether or not the element of strength of
       the Crown case, to which reference is frequently made as limiting the
       value of a plea, should be attributed to both of the elements . . .

       In R v Winchester Hunt CJ at CL related the strength of the Crown case
       only to the contrition element of the leniency in sentencing which a plea of
       guilty affords an accused . . . As his Honour put it at 350:

       "The extent to which leniency will be afforded upon this ground will depend
       to a large degree upon whether or not the plea resulted from a recognition
       of the inevitable."

       In my opinion his Honour was correct to link the question of the strength of
       the Crown case only to the issue of contrition or remorse. A "recognition of
       the inevitable" may qualify the extent of genuine contrition. It does not
       qualify the utilitarian value of a plea.

A number of appeals to the Court of Criminal Appeal have had as a ground of the
appeal that the sentencing Judge had considered the strength of the prosecution
case in assessing the utilitarian value of a plea . One such case is R v Parkinson
(2001) 125 A Crim R 1.

In Parkinson the appellant had pleaded guilty in the Local Court to a number of
drug offences. The sentencing Judge accepted that the pleas of guilty were
entered at the earliest available opportunity. The sentencing Judge found that an
appropriate discount was 5 per cent for the utilitarian benefit of the pleas,
because the Crown case was a strong one and there was an inevitability about
the conviction of the applicant which could not be avoided. This was an
erroneous approach, and the Court of Criminal Appeal substituted a discount a
25 per cent for the utilitarian value of the pleas of guilty.

B. Contrition as an element of the plea of guilty

1. Contrition as a mitigating factor

The discount for contrition is in addition to the discount for the utilitarian value of
the plea of guilty.

Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW) makes it a
mitigating factor if an offender has shown remorse for the offence by making
reparation for any injury, loss or damage or in any other manner.

As indicated above, the discount for contrition, if present, is to be separately
quantified from the utilitarian discount for the plea of guilty. As also indicated
above, the extent of contrition may be qualified by the strength of the Crown

2. The relationship between contrition and prospects of rehabilitation

Section 21A(3) Crimes (Sentencing Procedure) Act includes in the list of
mitigating factors the following:

        (g) the offender is unlikely to re-offend,
        (h) the offender has good prospects of rehabilitation, whether by reason
        of the offender’s age or otherwise,

Genuine contrition may indicate that prospects of rehabilitation are good ((R v
Thompson; R v Houlton per Spigelman CJ at paragraph 116).

R v Jelasavac [2003] NSWCCA 107 is a case where the relationship between
contrition and the prospects of rehabilitation was applied. The appellant had been
motivated to commit offences to feed his drug addiction. Since his entry into
custody, he had shown real signs of rehabilitation.

Adams J (at paragraph 10) dealt with the relationship between the appellant's
contrition and his prospects of rehabilitation as follows:

        However, with respect to the learned sentencing Judge, I consider that his
        Honour did err in his consideration of the impact of the obvious contrition

      and remorse demonstrated by the applicant, for which, as it seems to me,
      his Honour gave little, if any, allowance. His Honour stated that the
      applicant should be "given a discount because of his early plea and
      indeed because of his contrition." Strictly speaking, contrition and remorse
      are subjective features that will usually, but by no means always, require
      mitigation of penalty on the ground, amongst other things that if genuine, it
      improves the prospect of rehabilitation. Here, where the crimes were
      largely motivated by the applicant's need to feed his drug addiction, this
      element takes on added importance. Although, as has frequently been
      said, drug addiction will only rarely be regarded as a mitigating
      circumstance, the fact that an addict has made substantial progress in
      actually dealing with his or her addiction will always be a material factor in
      crafting an appropriate sentence. Significant steps of this kind provide
      persuasive evidence of contrition and emphasise the importance of this
      subjective feature.

2. Contrition and the lesser weight that may be given to specific deterrence

In appropriate matters, genuine contrition may allow specific deterrence to be
given lesser weight in that sentencing exercise (R v Thompson; R v Houlton per
Spigelman CJ at paragraph 116; R v Tuifua [2002] NSWCCA 420 at paragraph
45 per Sperling J).

A court can find that the defendant has already learnt a lesson, which does not
need to be reinforced by the weight that would otherwise need to be given to
specific deterrence.

C. The effect of the plea of guilty in changing the nature of the sentence

In R v Thompson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ stated at
paragraph 160(iv) that:

       In some cases the plea, in combination with other relevant factors, will
       change the nature of the sentence imposed.

Earlier in the judgment (at paragraph 155), Spigelman CJ stated that:

       In some cases the "discount" will be reflected in a step down in the
       hierarchy of sentencing options.

In matters where a plea of guilty has been entered at an early stage, and
especially if the plea of guilty is accompanied by contrition, it can be submitted
that the plea of guilty will be a relevant factor in:

      Turning a sentence that would otherwise be one involving imprisonment
       into a non-custodial sentence (such as community service); or

      Turning a sentence that would have had to have been imposed full time
       into a sentence of imprisonment that is suspended or is to be served by
       periodic detention or home detention.


The principles in relation to how a court sentences an offender who was under
the influence of alcohol at the time of an offence, or who committed an offence
under the influence of drugs or to support a drug addiction are similar.

However, there are also some specific differences. For this reason, the issues
will be dealt with separately.

A. Offences committed while under the influence of alcohol

The principles to be applied are set out in R v Sewell (1981) 5 A Crim R 204,
which was a decision of the South Australian Court of Criminal Appeal, and R v
Coleman (1990) 47 A Crim R 306. In Coleman, Hunt J approved the statements
made in Sewell about the relevance of intoxication.

The principles extracted from these cases are:

      The relevance of an offender being under the influence of alcohol at the
       time of the commission of an offence is that it throws light on the degree of
       deliberation shown by an offender, which is usually a matter to be taken
       into account. Intoxication would therefore be relevant in determining the
       degree of deliberation involved in the offender's breach of the law.

      In some circumstances, intoxication at the time of an offence may
       aggravate a crime because of the recklessness with which the offender
       became intoxicated.

      In other circumstances, intoxication at the time of the commission of an
       offence may both mitigate a crime because the offender has by reason of
       that intoxication acted out of character, and serve as an explanation for
       the offence. An example is when a person who is otherwise of a
       blameless character does something which is quite out of character while
       under the influence of alcohol.

      In some cases, intoxication at the time of an offence may point to a
       greater role for general deterrence in sentencing. An example of such a
       situation is with offences of violence, where, even in the case of a first
       offender of good character, a deterrent sentence is required to impress on
       the community at large that such behaviour will not be tolerated.

Coleman is a good example of how these principles are applied. The appellant
sought leave to appeal to the Court of Criminal Appeal against conviction for his
offence of Maliciously Inflict Actual Bodily Harm with Intent to Have Sexual
Intercourse. The grounds of the appeal against conviction focused on jury
directions in relation to intent and intoxication.

The appellant was unsuccessful in his appeal against conviction. He then sought
leave to appeal against the sentence imposed. The issue of general principle that
was raised was the extent to which the appellant was entitled to have his
intoxication at the time of this offence taken into account in mitigation.

The appellant lived with the victim. Both were heavy drinkers. On the date of the
offence the victim was asleep when the appellant entered the victim's bedroom.
The appellant attempted to push a stubbie-sized bottle of beer into the victim's
anus. The appellant was intoxicated at the time.

Hunt J examined the way in which the appellant's intoxication could be taken into
account. The evidence was that the appellant had been an alcoholic over a long
period of time. The appellant's criminal record and medical evidence showed that
the appellant's violence on the date of the offence was not out of character. In all
of those circumstances, Hunt J, in reassessing the appropriate sentence to be
imposed on the appeal against sentence, did not place much weight upon the
appellant's intoxication in mitigation, but did not take it into account in

B. The relevance of offences being committed under the influence of drugs

In R v Henry (1999) 46 NSWLR 346 the Court of Criminal Appeal promulgated a
guideline judgment in relation to offences of Robbery Whilst Armed with an
Offensive Weapon.

During the course of argument, the Respondents to the Crown appeals submitted
that the Court of Criminal Appeal should declare that the fact that an offender
was addicted to drugs, and committed crimes to obtain money to feed his or her
habit, should be accepted as a mitigating circumstance. This argument was

The relevant principles regarding the relevance of drug addiction are set out in
the judgment of Wood CJ at CL, at paragraph 273, which are as follows:

       In my view the relevant principles are as follows:

       (a) the need to acquire funds to support a drug habit, even a severe habit,
       is not an excuse to commit an armed robbery or any similar offence, and
       of itself is not a matter of mitigation;

       (b) however the fact that an offence is motivated by such a need may be
       taken into account as a factor relevant to the objective criminality of the
       offence in so far as it may throw light on matters such as:

       (i) the impulsivity of the offence and the extent of any planning for it; (cf
       Bouchard (1996) 84 A Crim R 499 at 501-2); and Nolan (1988) VSCA 135
       (2 December 1998);

       (ii) the existence or non existence of any alternative reason that may have
       operated in aggravation of the offence, eg that it was motivated to fund
       some other serious criminal venture or to support a campaign of terrorism;

       (iii) the state of mind or capacity of the offender to exercise judgment, eg if
       he or she was in the grips of an extreme state of withdrawal of the kind
       that may have led to a frank disorder of thought processes or to the act
       being other than a willed act;

       (c) It may also be relevant as a subjective circumstance, in so far as the
       origin or extent of the addiction, and any attempts to overcome it, might:

       (i) impact upon the prospects of recidivism/rehabilitation, in which respect
       it may on occasions prove to be a two-edged sword (eg Lewis Court of
       Criminal Appeal New South Wales 1 July 1992);

       (ii) suggest that the addiction was not a matter of personal choice but was
       attributable to some other event for which the offender was not primarily
       responsible, for example where it arose as the result of the medical
       prescription of potentially addictive drugs following injury, illness, or
       surgery (cf Hodge Court of Criminal Appeal New South Wales 2
       November 1993; and Talbot); or where it occurred at a very young age, or
       in a person whose mental or intellectual capacity was impaired, so that
       their ability to exercise appropriate judgment or choice was incomplete;

       (iii) justify special consideration in the case of offenders judged to be at
       the "cross roads": Osenkowski (1982) 5 A Crim R 394.

These principles, which can be summarised as being that drug addiction is a
relevant matter to be taken into account, but is not itself a mitigating factor, have
been applied in numerous subsequent cases.

However, the way in which an offender becomes addicted to drugs can be taken
into account, in circumstances beyond those that Wood CJ at CL set out in Henry
at paragraph 273(ii).

Simpson J in Henry set out these circumstances at paragraph 345:

       The authorities cited by Spigelman CJ and Wood CJ at CL are almost
       unanimous in holding that drug addiction of itself does not operate as a

      mitigating circumstance. When the words "of itself" are emphasised, I
      respectfully agree with the proposition repeatedly stated; but, in any event,
      the line of authority is so compelling and so sustained that, even sitting as
      one of a bench of five, I would be reluctant to participate in a decision
      departing from it. It is the role of the legislature (or the High Court) to alter
      such a long standing principle. What I have said above is consistent with
      that line of authority . Nowhere is it held that it is inappropriate, in
      sentencing drug offenders, to take into account either the circumstances
      that gave rise to the drug addiction or demonstrated rehabilitation.
      (Second emphasis added).

These principles were given practical effect in R v Jelisavac [2003] NSWCCA
207. This case involved an appeal to the Court of Criminal Appeal against the
severity of sentences imposed in the District Court.

In Jelisavac, the appellant pleaded guilty to a number of offences, including a
number of counts of Aggravated Break Enter and Steal which were committed
over a period of two and a half years.

The appellant was given an effective head sentence of seven and a half years,
with a non parole period of four and half years.

The appellant's subjective background was tragic. His natural father was an
alcoholic who was prone to violence towards his [the appellant's] mother, to such
an extent that his father had caused damage to the prisoner's sister while she
was in the womb, causing his sister to be severely disabled since her birth. The
appellant's mother dealt out extremely violent physical punishment to him. The
Department of Community Services removed the appellant from his parents at 8
years old and placed in homes and with foster parents. These placements were
not successful. The appellant kept running away from these placements. At the

age of 10 he began using marijuana, and from 14, heroin, quickly graduating to
using heroin by injection.

Since the appellant went into custody, he had made real attempts at

Adams J, in allowing the appeal and reducing the length of the non parole period,
said at paragraph 10, in relation to the use of drugs by the appellant:

       I add that there is some difference, which may be significant in some
       cases (and I think that this is one of them), between the approach to
       addiction that is appropriate where an adult becomes addicted to illicit
       drugs on the one hand and where, as here, a child becomes addicted
       because of the environment in which they are placed or otherwise find
       themselves at a time before they reach maturity. This is not to lessen the
       importance of personal responsibility for crimes committed for the purpose
       of satisfying the addiction but to recognise that the approach to this matter
       should not be arbitrary.


In the High Court’s decision in Pearce v R (1998) 194 CLR 610 McHugh, Hayne
and Callinan JJ stated at 624 that the proper approach when sentencing for
multiple offences is that:

       A judge sentencing an offender for more than one offence must fix an
       appropriate sentence for each offence and then consider questions of
       cumulation or concurrence, as well, of course, as questions of totality.

The proper approach to sentencing for multiple offences will be illustrated by
reference to the recent decision of R v AEM Snr, KEM and MM [2002] NSWCCA
58 ("AEM").

In AEM there were three co-offenders who were involved in sexual assaults on
two victims in a house over a number of hours. In the District Court, each co-
offender was sentenced for two offences of Aggravated Sexual Assault (section
61J Crimes Act) and each had offences taken into account on a Form One. The
Crown appealed against the inadequacy of sentences imposed on each (there
was also a fourth co-offender against whom there was no Crown appeal).

1. Fixing an appropriate sentence for each offence

Although the sentencing Judge did consider totality, including
concurrency/cumulation of the sentences, the sentencing Judge did not firstly fix
an appropriate sentence for each offence, as Pearce requires. The sentencing
Judge was in error in not doing so.

2. Concurrency/cumulation of sentences

The approach to be applied in determining whether sentences should be served
concurrently or cumulatively was set out by Simpson J (Mason P agreeing) in R v
Hammoud (2000) 118 A Crim R 66 at 67 as follows:

      Whether or not to accumulate sentences imposed in relation to multiple
      offences is, in the end, an exercise of discretion to be made in accordance
      with established principle. Features common to two or more offences are
      all matters relevant to be taken into account (pointing towards
      concurrence) as are features indicating the disparate nature of the
      offences (pointing the other way). There will be many cases in which

       sentencing judges might take differing views but neither view could be
       said to be wrong.

       As a result of the decision of the High Court in Pearce, the question of
       whether to accumulate sentences for multiple offences has taken on a
       new dimension. Following Pearce, a judge is required to fix 'an appropriate
       sentence' for each offence, before considering questions of accumulation,
       concurrence or totality. I take this to mean that, except perhaps in cases of
       multiple offences committed as part of a single, discrete, episode of
       criminality, the sentence for an individual offence is to reflect the
       criminality involved in the offence untainted by reference to the other
       offences for which that offender is to be sentenced.

This is consistent with what was said in Pearce, where McHugh, Hayne and
Callinan JJ, commenting on whether the sentences in that case should have
been made concurrent or should have been accumulated, said at 624:

       ...[T]o make the sentences imposed on [the] two counts wholly concurrent
       may also be said to reveal error in that to do so failed to take account of
       the differences in the conduct which were the subject of punishment on
       each count.

The sentencing Judge in AEM imposed concurrent sentences on each offender
because her view was that the sexual assaults were committed in the course of
one extended episode.

The Court of Criminal Appeal held that the sentencing Judge took a wholly
simplistic approach in imposing concurrent sentences. The Court of Criminal
Appeal said that it was necessary for the sentencing Judge:

      To have regard to the circumstances of each offence, and

      To determine whether there were discrete features of individual offences
       which required accumulation, at least in part.

The Court of Criminal Appeal imposed partially cumulative sentences on each.
By way of example of the reasoning of the Court of Criminal Appeal, for AEM, a
partially cumulative sentence was found to be appropriate because:

      He sexually assaulted each of the two different victims.

      The sexual assaults took place in separate parts of the house, one victim
       being sexually assaulted in a bedroom and the other victim being sexually
       assaulted in the bathroom.

      There were some hours intervening between the sexual assaults.

Those matters, in combination with the principle of totality, required a partial
cumulation of the sentences.

In contrast to AEM, all of the offences committed by KEM were against only one
of the victims. However, the Court of Criminal Appeal imposed partially
cumulative sentences on him, because the Court found that there were "discrete
episodes of wrongdoing" which took place in different parts of the house.

3. Totality

The Court of Criminal Appeal explained the principle of totality at paragraph 70 in
AEM, as:

       The principle of totality can be simply stated. It requires that the effective
       sentence imposed upon an offender represent a proper period of
       incarceration for the total criminality involved. In R v Kalache (2000) 111 A

       Crim R 152, Sully J at 184 quoted from Thomas, Principles of Sentencing,
       2nd Ed 1979 at 56-57:

       "... [the Court] must look at the totality of the criminal behaviour and ask
       itself what is the appropriate sentence for all the offences."

       See also Mill v The Queen (1988) 166 CLR 59 at 62-63.

The Court in AEM went on to state at paragraph 77 that:

       The principle of totality does not of course stand on its own. It constitutes
       the final overview of the objective seriousness of an offender's criminality
       to which a Court has regard to ensure that it is imposing an appropriate
       sentence in all the circumstances. As we have already indicated,
       questions of concurrence or accumulation are an integral part of that
       process. Dealing with offences listed on a Form 1 procedure is another
       matter in respect of which the principle of totality is relevant.

The Court of Criminal Appeal found a number of aggravating circumstances in
each of the offences in the indictment as well as generally in relation to the facts
(including threats to kill, and the extended period of detention of each victim).

The Court of Criminal Appeal held that the sentences imposed in the District
Court failed to address the objective seriousness of the offences, and accordingly
the sentencing Judge failed to properly apply the principle of totality.

The principle of totality was also relevant in deciding whether partial cumulation
of each offender's sentence was warranted. The Court of Criminal Appeal found
that such a cumulation of sentences was warranted.

Lester Fernandez
Legal Aid Commission of New South Wales

30 June 2003


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