The sentencing discount for guilty pleas
| Author | J E Willis |
| DOI | 10.1177/000486588501800302 |
| Published date | 01 September 1985 |
| Date | 01 September 1985 |
| Subject Matter | Original Article |
AUST &NZ
JOURNAL
OF CRIMINOLOGY (September 1985) 18 (131-146)
THE SENTENCING DISCOUNT FOR GUILTY PLEAS
Are
we paying too much for efficiency?
J E Willis*
131
It is enormously important to remember that rights and freedoms which have been built up and
established for centuries can be easily lost forever due to an over-reaction to some topical pressure.
(The Hon J Kennan MLC, Attorney-General of Victoria)'
Introduction
Court systems in Australian jurisdictions are under considerable and increasing
pressures. There are substantial backlogs of cases especially in the higher courts;
contested cases are generally tending to take longer , and there seems to be an
increasing number of complex trials which are taking months.
Governments over recent years have responded to these pressures in a number
of ways. Jurisdictional changes have enabled anumber of indictable offences to be
heard summarily, and so lightened the case-Ioad of the higher courts; there has been
some increase in the number of judges appointed to higher courts, and a variety of
procedural and administrative changes adopted to deal with the problems of
case-Ioad and backlogs. Although these measures have had some effect, problems
of back-logs and delay still persist. Indeed, the increase in the jurisdiction of the
summary courts, while removing many cases from the higher courts, has meant that
agreater proportion of the cases in the higher courts will be more serious and
contentious, and their resolution likely to require more time and resources. If one
assumes that an average jury triallasts for about a week, and further that five guilty
pleas can be disposed of in a day, the substitution of five guilty pleas can be expected
to save nearly five weeks of court-time. For overworked higher courts, the
attractiveness of increasing the number of guilty pleas is manifest. It is against this
background that the so-called "sentencing discount for pleading guilty" needs to be
examined.
The Sentencing Discount for Pleading Guilty
It is a well-established principle that remorse or repentance is a factor that goes
towards mitigation of sentence, and that a guilty plea may be evidence of such
repentance or remorse. As
themajority
of the Victorian Court of Criminal Appeal
said in Gray
2:
It is, of course, beyond argument that contrition is a factor properly to be considered in determining
what measure of clemency should be extended to an accused person. In one sense it forms an aspect of
the reformation component in the sentence. But that is not to say that repentance cannot be present
when, or because, the accused has chosen to contest the charge made against hirn; although remorse,
will, doubtless, be more readily established in cases where a plea of guilty has been entered.
The further issue is whether the mere fact that an accused has pleaded guilty and
thus saved the court's time and expense should (quite apart from the issue of
remorse or repentance) be a factor which goes towards mitigation of sentence.
England
It is now weIl established in England that the mere fact of a guilty plea isa factor
which will generally lead to a reduction in sentence. In a number of cases involving
*Senior Lecturer, Department of Legal Studies, La Trobe University, Bundoora Vic.
132
JE
WILLIS (1985) 18
ANZJ
Crim
co-offenders, English appeal courts have
made
it clear
that
"the
man
who pleads
guilty can expect less severe punishment
thanone
who pleads
not
guilty":'.
Thomas,
after reviewing
these
cases, has stated:
These cases suggest
that
a
bare
plea of guilty, without any further mitigation, may justify areduction
in sentence of between one
quarter
and one third of the net figure established by reference to the facts
of the offence.4
Arecent
example of the English approach is Ross 5, where
the
trial judge
indicated
that
he
regarded
both
Ross, who
had
pleaded guilty,
and
aco-offender,
who was convicted by a jury, as equally culpable and sentenced
both
to 15 months'
imprisonment.
The
Court
of
Appeal
held
that
the trial judge was in
error
in
not
taking into account
the
fact
that
Ross
had
pleaded
guilty,
and
reduced
his sentence
to nine months.
Victoria
The
situation in Australian jurisdictions is less clear. In Victoria, in Gray 6, a
majority of
the
Court
of Criminal
Appeal
held
that
a trial judge
may
allow a guilty
plea,
not
actuated
by genuine remorse, to lead to a reduction in sentence if it serves
"the
public
interest"
by sparing witnesses
the
ordeal of giving evidence, or by saving
the State
the
cost of a lengthy trial.
The
majority stated:
The sentencing judge possesses adiscretion of great width.
It
would be
improper
to seek to define or
prescribe the
area
in which
that
discretion is to
operate.
It
is for the judge to
interpret
the quality and
implications of the plea. If it is one calculated to serve the public interest it would be
proper
to consider
whether to allow the plea to act in mitigation,
but
not necessary to do so.
For
example, the plea may
be evidence of remorse ,
that
is, regret as to participation in the crime. If the
Court
of Criminal Appeal
in Queensland in RvCox [1972] QWN 54 held that a plea of guilty could
operate
in mitigation only in
so far as it evidenced genuine remorse, that, in
our
opinion, would be a too restrictive view.
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 feit by hirn 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 acourse which involves a 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."
And
later in
the
same
judgment,
the
majority noted:
We would add
that
contrary to the view apparently held by the learned sentencing Judge we do not
understand it to have
been
the accepted practice in this State
that
no account should be taken of the fact
that an accused person has pleaded guilty or
that
for a judge to take account of
that
fact has
been
"frowned
on".
8
Gray's case is solid authority for
the
proposition
that
a guilty
plea
not
actuated
by
remorse,
may
at
the
judge's discretion lead to a reduction in sentence.
The
case
would also suggest
that
such a practice
had
been
occurring in Victoria.
Later
decisions of
the
Victorian
Court
of Criminal
Appeal
have cast some
doubt
on
the
decision in Gray. In Page 9, which was decided
after
Gray, Young
Cl,
delivering
the
judgment
of the court, stated:
The only real relevance in my view of a plea of guilty is if it is indicative of remorse, although I am
aware that the
Court
has from time to time said
that
there may also be
taken
into account
that
it may
save the community substantial time and money by avoiding a lengthy trial.
The
Court
of Criminal
Appeal
in Page dismissed the appeal against sentence on
the
grounds
that
the
defendant's guilty
plea
did
not
demonstrate
real remorse.
The
judgment in Page is in clear opposition to Gray, and leaves
the
status of
the
guilty
plea as a mitigating element very much in
doubt."
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