Queensland University of Technology Law and Justice Journal
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JOEL SHAW[*]
In Cameron v The Queen,[1] all five members of the
High Court embraced an opportunity to address a number of sentencing principles
relevant to pleas of guilty.
Although the case itself was concerned with an
issue relatively narrow in scope, it seemed important for each judge to
promulgate
their own agenda for the development of sentencing law in Australia.
This article will examine each judgment and the sentencing
principles to which
they relate. It will also briefly consider the indifferent reception of
Cameron in the various state jurisdictions and speculate on the prospect
of its continued application.
In their joint judgment, Gaudron, Gummow and Callinan JJ concerned
themselves primarily with the discrimination generated by two fundamental
notions of sentencing. Their Honours began by observing, ‘it is well
established that the fact that an accused person has
pleaded guilty is a matter
properly to be taken into account in mitigation of his or her
sentence’.[2] However, it was
later noted that this principle was qualified by the notion that a convicted
person cannot be penalised for having
insisted on his or her right to contest
the charges. Their Honours continued:
The distinction between allowing a reduction in sentence for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties but it is, nonetheless, a real distinction, albeit the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory. [3]
The rationale
usually relied upon to justify mitigation was repeated by the High Court in
Siganto v The Queen[4] where
Gleeson CJ, Gummow, Hayne and Callinan JJ said a plea of guilty would ordinarily
be something to be taken into account in mitigation
firstly because it
represented remorse on the part of the offender, and secondly, ‘on the
pragmatic ground that the community
is spared the expense of a contested
trial’.[5]
However, in
Cameron, the majority elaborated on what was said by the Court in
Siganto, immediately noting that remorse was not the lone subjective
matter revealed by a plea of guilty. According to their Honours, a
plea may
also indicate, on the part of the offender, acceptance of responsibility and a
willingness to facilitate the course of justice.
Attention then returned to
whether mitigation of sentence justified solely on the pragmatic ground referred
to in Siganto could amount to discrimination against those who contest
their charges. As to their refined rationale for mitigation, their Honours
observed:
Reconciliation of the requirement that a person not be
penalised for pleading not guilty with the rule that a plea of guilty may be
taken into account in mitigation requires that the rationale for the rule, so
far as it depends on factors other than remorse and
acceptance of
responsibility, be expressed in terms of a 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.[6]
The proper
rationale for mitigating sentence in recognition of a plea of guilty was also
explored in some depth by Kirby J. In contrast
to the views expressed in the
joint judgment, his Honour considered that a discount for remorse may be made
independent from (and
in some respects, in addition to) a discount for a plea of
guilty. However, his Honour viewed remorse with some scepticism, prudently
pointing out that in many instances a prisoner’s plea may indicate little
more than regret at being caught and charged as opposed
to regret for their
involvement in the crime. In respect of the rationale for mitigation his Honour
observed:
[T]he true foundation for the discount for a plea of guilty is not reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. [7]
According to his
Honour, remorse was not the starting point for, nor a precondition to, a
reduction in sentence for a plea of guilty.
Instead, it represented the
‘icing on the cake’.[8]
In preferring considerations of the public interest, his Honour was in fact
endorsing the pragmatic grounds previously denounced
in the majority judgment.
His Honour stated:
The main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. [9]
The result
from the foregoing discussion is that, by virtue of the majority judgment, a
discount for a plea of guilty independent
of any question of remorse and
acceptance of responsibility, must now be viewed from the perspective of the
offender as opposed to
the perspective of the community. Regardless of its well
supported acceptance and in spite of Kirby J’s resolute insistence,
pragmatic benefits generated by a plea of guilty may no longer be exclusively
relied upon as the basis by which mitigation may be
made.
This aspect of
the case in particular has already received a great deal of attention. Indeed,
the pragmatic value afforded by a plea
of guilty is held in high regard, so much
so that at least two state superior courts have sought to distinguish
Cameron in so far as it seeks to remove pragmatic considerations from the
sentencing discretion.
In R v
Sharma[10] the New South Wales
Court of Criminal Appeal held that the majority decision in Cameron was
not applicable in the State of New South Wales. The court distinguished the
Western Australian legislation with which Cameron was concerned from the
New South Wales statutory equivalent. The Western Australian statute was
construed to simply restate the common
law. Specifically, it contained a
provision allowing the court to consider a plea of guilty as a mitigating factor
and another section
directing the court not to regard a plea of not guilty as an
aggravating circumstance.[11]
However, the relevant New South Wales provision was construed by the Court of
Criminal Appeal to amend the common law. The New
South Wales statute required
to be taken into account both ‘the fact’ of the plea and
‘when’ it was made.
The Court held:
The statutory reference to ‘the fact’ of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor ... is the element of timing, reflected in the reference to ‘when’ a plea was made a reference only to subjective elements.
...
[T]he New South Wales Act does not expressly contain ‘any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account’. However, there is no warrant for limiting such ‘purposes’ or ‘circumstances’ so as to restrict the court’s attention to a subjective intention to assist the administration of justice, to the exclusion of the objective value of the plea. [12]
Thus, upon the
proper construction of the New South Wales Act, the Court of Criminal Appeal
concluded that the objective, utilitarian
value of a plea of guilty remained an
operative consideration in the State of New South Wales.
In R v
Place[13] the South Australian
Court of Criminal Appeal intimated, without needing to finally decide the issue,
that the principle enunciated
by the majority in Cameron also did not
apply under the legislation in that State. The Court considered it relevant
that prior to the enactment of the South
Australian sentencing legislation, it
was the preferred practice of South Australian judges to have regard to the
pragmatic value
of a guilty plea when passing sentence. And it was safe to
assume that, when the Sentencing Act 1988 (SA) was passed, the
legislature was aware of this approach. Accordingly, the court was indicating
that, without providing any further
guidelines as to how the fact of a guilty
plea should be considered, Parliament was actually endorsing the existing
practice. Finally,
the court concluded:
We tend to favour the views expressed by Kirby J ... that, in the absence of subjective criteria such as contrition, a sufficient rationale is found in the public interest based upon ‘purely utilitarian’ considerations. [14]
Clearly, in both
of the above cases, the respective Courts of Appeal were disappointed with the
reasons of the majority in Cameron. Indeed, both courts undertook an
extreme and convoluted process of statutory interpretation in order to happily
restore their much
favoured pragmatic considerations back into the sentencing
discretion. And while it is evident that the reasoning of the majority
in
Cameron will not be applicable in either New South Wales or South
Australia, it is not so clear in the remaining jurisdictions. Obviously
the
majority judgment will continue to be applied in full force in Western Australia
(and also Tasmania),[15] however it
remains to be seen whether other state courts will apply the new, refined
rationale at the expense of utilitarian benefits.
It is suggested that the
approaches taken in Sharma and Place may be open to other state
courts. In any event, the matter is far from resolved.
It also remains
to be seen whether there is any practical relevance associated with the
different approaches. Whether the rationale
for mitigation is viewed
subjectively, from the perspective of the offender, or objectively from that of
the community, in either
case the point in time when the plea is entered will
remain the operative consideration. Accordingly, the subjective formulation
will ordinarily demand the same discount to what was previously considered
appropriate for the utilitarian value of the plea prior
to the decision in
Cameron.[16] Indeed, the
question may be one of semantics rather than form.
Unlike the majority, Kirby and McHugh JJ, in their respective judgments,
considered the issue of discrimination separately and in
the context of the
federal jurisdiction. After observing that courts exercising federal
jurisdiction cannot act in a way that is
‘relevantly
discriminatory’, McHugh J said:
And it is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that the group has been convicted on pleas of guilty and the other group has been convicted on pleas of not guilty. (emphasis in original) [17]
His Honour
continued by saying that the principle of ‘equal justice’ required
identical outcomes in cases where the facts
and circumstances of the crimes and
the subjective factors of those who commit them are the same. His Honour
observed that the fact
that the state may be advantaged by a plea of guilty was
‘arguably not a relevant difference in cases where the plea of guilty
throws no light on the contrition, remorse or future behaviour of the
defendant’.[18] However, his
Honour declined to finally decide the issue, leaving its determination for an
appeal where a person has been sentenced
in the federal jurisdiction after being
convicted by his own plea of guilty. However, his Honour concluded, ‘if
such a person
has been denied the discount received by those pleading guilty,
the sentence may be arguably discriminatory in a relevant
sense’.[19]
Justice
Kirby made similar observations in the context of the federal jurisdiction.
Specifically, his Honour considered whether it
was contrary to the implied
constitutional principle of ‘legal equality’ to treat persons who
plead guilty to an offence
differently from those who plead not guilty. His
Honour suggested that it would be ‘at least arguable’ that a person
who acknowledged their guilt, and thereby received a sentencing discount, would
be treated more advantageously than those who did
not plead guilty. However,
like McHugh J, his Honour considered it was not the proper occasion to explore
this question further.
It is suggested that there is no reason, in fact
or principle, to confine the discussion of discrimination to the federal
jurisdiction.
Certainly the majority found no reason to do so. Rather, it
appears that McHugh and Kirby JJ were simply not prepared to disturb
the
uniformly accepted practice of allowing sentencing discounts based purely on
pragmatic considerations.
In Cameron, McHugh J referred to earlier decisions in which his
Honour criticised the approach to sentencing which requires the judge to
formulate
a sentence by reference to objective factors and then arithmetically
reduce that sentence to take into account other factors relevant
to the accused,
such as a plea of guilty. According to his Honour in AB v The
Queen,[20] this
‘two-tiered’ approach compromises the discretionary nature of the
sentencing process and is, in most cases, not
only unsuitable but one that
cannot realistically be followed in practice. Instead, McHugh J favoured an
approach where judges ‘instinctively
synthesise’ the various
elements of the case to reach a single appropriate sentence.
This
latter view has also been supported on a number of occasions in the High Court
by Hayne J. In AB, his Honour was of the view that a two-tiered approach
to sentencing presupposed that the sentencing process was some mechanical
or
mathematic exercise. Rather, it is, according to his Honour, a balancing
process in which the sentencing judge is to weigh all
competing factors and
express the result in terms of the punishment to be served.
In
AB, McHugh and Hayne JJ were in dissent. However, subsequently, the
majority of the High Court in Wong v The
Queen[21] endorsed those reasons
arguing the two-tiered approach to sentencing was ‘wrong in
principle’.[22]
In
Victoria, the courts have traditionally condemned the two-tiered approach and
advocated instinctive synthesis as the correct approach
to be adopted
.[23] More recently, similar
sentiments have been expressed in
Queensland,[24]
Tasmania[25] and Western
Australia.[26]
In both
AB and Wong, Kirby J criticised instinctive synthesis and
preferred the two-tiered approach to sentencing. However, on both occasions,
his Honour
did not make any significant contribution to the debate and simply
reserved the issue for an appeal where the answer was essential.
Surprisingly,
in Cameron, despite neither party making submissions on the matter, Kirby
J considered the controversy at length. In an effort to arrest its
momentum in
both the High Court and the various intermediate appellate courts across the
country, his Honour identified two dangers
posed by an acceptance of the
instinctive synthesis approach. Firstly, there would be the danger that the
lack of transparency,
concealed by judicial instinct, would render it impossible
to know whether the proper sentencing principles had been applied. Secondly,
‘if the prisoner ... [does] not know the measure of the discount, it
cannot be expected that the pleas of guilty will be encouraged
in proper
cases’[27] despite this being
in the public interest.
Moreover, Kirby J considered the case of
Cameron itself substantiated the need for two stages and transparency in
the judicial reasons for sentence. His Honour observed:
[T]his appeal would not have been possible (and a miscarriage of justice might have been irreparably masked) had the sentencing judge contented himself with stating generally that he had taken the plea of guilty into account and simply announced his “instinctive synthesis” represented by the sentence of nine years imprisonment. This appeal would have been without redress. [28]
The debate has
since continued in the cases of Sharma and Place. In
Sharma, the New South Wales Court of Criminal Appeal simply upheld its
guideline judgement in
Thompson.[29] In that case,
the same court considered that the instinctive synthesis approach was the
correct general approach to sentencing.
However, this remark was then qualified
so that, in certain circumstances it would be permissible (and sometimes
necessary) to take
out an element of the sentencing process and treat it
separately from other concerns. A discount to sentence for assistance with
authorities and for pleas of guilty were identified as two such circumstances.
In Place the South Australian Court of Criminal Appeal also condoned a
two-tier approach to sentencing. After observing that such an approach
had been
the practice of the state for a number of years, the court concluded,
‘[t]he system is fair and practical. ... in
our opinion it would be a
retrograde step to discourage sentencers from continuing with the current
practice’.[30]
Thus, in
light of these two decisions, the majority’s reference in Wong to
the weight of authority in intermediate appellate courts being ‘against
adopting two stage sentencing and [favouring] the
instinctive synthesis
approach’[31] may have been
premature. However, in the absence of statutory intervention, it will always be
a question dependant on the particular
predispositions of individual judges
across the various jurisdictions. Indeed, it is a matter that can only be
conclusively resolved
by the legislature.
In Cameron, the High Court of Australia took time to re-examine a
number of sentencing principles applicable to pleas of guilty. Arguably,
however, in light of recent decisions in New South Wales and South Australia, it
need not have bothered. Indeed, in those subsequent
decisions, the respective
Courts of Appeal simply ignored what was binding upon them in preference to
their own established practices.
It remains to be seen whether other courts
will apply the principles enunciated in Cameron. But perhaps the most
significant principle gleaned from the above discussion is that the promulgation
of general sentencing principles
is best left to judges in the individual state
jurisdictions.
[*] Undergraduate student, Faculty
of Law, Queensland University of
Technology.
[1] Cameron v The
Queen (2002) 76 ALJR 382.
[2]
Ibid 384.
[3]
Ibid.
[4] Siganto v The Queen
[1998] HCA 74; (1998) 194 CLR 656.
[5] Ibid
663-664.
[6] Above n 1,
385.
[7] Ibid
394.
[8] Ibid
397.
[9] Ibid
394.
[10] R v Sharma
[2002] NSWCCA 142 (Spigelman CJ, Mason P, Bar, Bell and McClellan JJ, 24 April
2002).
[11] This essentially
restates what was said in Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at
663.
[12] Above n 10,
[51],[53].
[13] R v Place
[2002] SASC 101 (Doyle CJ, Prior, Lander, Martin and Gray JJ, 26 March
2002).
[14] Ibid
[78].
[15] There is no
legislation governing the principles of sentencing in the State of Tasmania.
Thus, the principle enunciated by the
majority in Cameron will be
applied, in so far as it amends the existing common
law.
[16] Such was indicated in
R v Curry [2002] NSWCCA 109 (Heydon JA, Studdert and Buddin JJ, 2 April
2002), [26].
[17] Above n 1,
390.
[18]
Ibid.
[19]
Ibid.
[20] [1999] HCA 46; (1999) 198 CLR
111.
[21] [2001] HCA 64; (2001) 76 ALJR
79.
[22] Ibid
94.
[23] see, for example, R
v Willscroft [1975] VicRp 27; [1975] VR 292 and R v O’Brien (1991) 55 A Crim
410.
[24] R v Corrigan
[1994] 2 Qd R 415.
[25]
Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186, 204 (Slicer
J).
[26] Verschuren v The
Queen (1996) 17 WAR 467, 483 (Murray J).
[27] Above n 1,
395.
[28] Ibid
396.
[29] R v Thompson and
Houlton [2000] NSWCCA 309; (2000) 115 A Crim R
104.
[30] Above n 13,
[82].
[31] Above n 10, [76].
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