“Guilty” or “Not Guilty” – Entering a Plea in NSW

It is a fundamental right for an accused to plead “not guilty” and compel the prosecution to prove ones guilt, beyond reasonable doubt. This is the highest onus in Australia. It is a right to deny guilt no matter how strong the prosecution case may be, and this is fundamental to the presumption of innocence and our justice system.

Is there a benefit to pleading Guilty?

Entering a plea is quite traumatic for many people. Legal practitioners are trained to advise you about it in detail on a case by case basis but here is a few considerations for you know.

Early guilty plea sentence discounts and variations of sentence are given for the utilitarian value of the plea, and to encourage defendants to enter a plea of guilty at the earliest opportunity. Pursuant to the Crimes (Sentencing) Procedure Act 1999, it is a mitigating factor for which a court may impose a lesser penalty. If a defendant enters a plea of guilty, a sentencing court must take this into account. Specifically, the court must consider the timing and circumstances of the plea or the indication of intention to plead. The court has discretion to impose a shorter sentence or variation to the sentence, which must not be unreasonably disproportionate to the nature and circumstances of the offence

In NSW, the guideline Judgment regarding the application of any objective utilitarian discount when pleading guilty at the first available opportunity is R v Thomson & Houlton [2000] NSWCCA 309. The result of this case in summary is that the utilitarian value of a plea to the criminal justice system is within the range of 10%-25% and timing of such plea is the primary consideration.

A discount of up to 35% was deemed appropriate when encompassing all aspects of a plea such as contrition, remorse and other subjective factors.

Principally, the court found that guilty pleas provide practical benefits in the form of savings to court time and the State’s resources in investigating and preparing allegations of criminal offences for committal proceedings and trials.

State v Federal

It is important to note, in the case of Cameron v The Queen [2002] HCA 6, a decision was handed down post Thomson & Houlton, stating that at common law, discounts for the utilitarian benefit of a guilty plea was not permissible. Mitigation in effect was permitted for subjective matters such as remorse, acceptance of responsibility and the willingness to facilitate the court of Justice. No objective consideration was to be given to any saving of court time or expense.

In R v Sharma [2002] NSWCCA 142, only a few months after the decision of Cameron was made, the Court of Criminal Appeal’s (CCA) position resulted in the permitted continuation of an objective discount being applied for guilty pleas per Thomson & Houlton (non common law position).

Approximately 5 years later, in Tyler v The Queen [2007] NSWCCA 247, the CCA upheld Cameron’s case and its decision in relation to federal offences. Simpson J handed down the decision where Spigelman CJ agreed. In effect, Tyler’s case upheld the “Cameron ban” on any objective utilitarian discount or benefit being applied as a result of a guilty plea in mitigation in any federal offences.

In effect, this also meant that parity arguments could not be made in federal offences when arguing Thomson. Tyler’s application has continued to be confirmed in relation to federal offences. See R v Saleh [2015] NSWCCA 299.

For federal offences and sentencing, it is all meant to be about subjective factors and not objective factors.

The NSW Court of Criminal Appeal in Lee v R [2012] NSWCCA 123, has described the approach to guilty pleas in Commonwealth matters:

When sentencing for a Commonwealth offence, there is no requirement for the sentencing judge to specify a quantifiable discount for an offender’s guilty plea. The principles set out in R v Thomson, R v Houlton (2000) NSWCAA 309; 49 NSWLR at [155], do not apply to sentencing for Commonwealth offences. When a Commonwealth offence is involved, a sentencing judge is required to take the offender’s guilty plea into account in accordance with the principles stated in Cameron v R [2002] HCA 6; 209 CLR 339. The plea of guilty is taken into account as recognition of an offender’s willingness to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.

Since the test in a Commonwealth offence is the willingness of the offender to facilitate the course of justice, a relevant consideration (particularly in this case) is the strength of the Crown case. This is because the strength of the Crown case may bear upon the question of whether the plea of guilty was motivated by a willingness to facilitate the course of justice, or simply a recognition of the inevitable.

The above in practice is a difficult exercise. The NSWLR encountered scepticism about whether any real objective utilitarian discount was being applied in state matters.

See:- http://www.lawreform.justice.nsw.gov.au/Documents/publication/reports/Report_141.pdf

In summary, entering a plea is not a simple procedure but rather requires careful consideration and the obtaining of adequate legal guidance. Many who have found themselves before the Court find the experience quite overwhelming and thwarted with complexity.