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Chris Craigie SC, (formerly Deputy Senior Public Defender now the Commonwealth Director of Public Prosecutions) - Original Paper 1998
Chrissa Loukas, Barrister and Public Defender - Revised September 2009
The authors thank Prita Supomo, Research Lawyer, Public Defenders Chambers, for her invaluable assistance in updating this Paper.
The need for careful tactical planning and advocacy is obvious to any lawyer embarking on a jury trial, that need is less obvious but also crucial for effective and persuasive plea advocacy in the superior courts. There are the occasional examples of defence advocacy that fundamentally change the approach of a sentencing judge, but more often it is a matter of revealing the availability of the best appropriate result, obscured within the evidence in much the same way that a fine sculpture might be seen buried in its marble block. With some thought to structure and content even a fairly colourless advocate advances the client's cause far more than the all too standard leap to the bar table and a steam-catapult launch into a plea limited only to embellishments on the old favourite that typically went something like this: 'well - Your Honour he appears before you as a young man of twenty two his mother is in court and I tender a reference from her etc. etc......'
The feeling that at best one is steering a client towards an inevitable result needs to be avoided in shaping the plea, however much merit there may be in that feeling when appearing before particular judges.
If you are fortunate enough to develop a booming criminal practice with the inevitably large component of plea work, it does no harm from time to time to do an audit of your own plea style. Ask yourself how to make the next plea fresh and likely to keep the attention and interest of the Bench. If you think that it is boring to deliver your thirtieth armed robbery plea it might be time to stop and reflect how the listening client will be anything but bored. The Judge, should not be permitted to be bored, if your advocacy is equal to the important task at hand
Notwithstanding a lower jurisdictional ceiling on penalty, there are many considerations that may cause one to seek avoidance of a final disposition of a sentence matter before a Magistrate. When the procedural provisions pertaining to the offence allow one the option, the relevant matters include the opportunity to be better prepared than time may have allowed if the matter is to proceed as a summary plea. One is also sometimes aware that a particular offence may assume a different scale before a District Court Judge. A matter which is on the Magistrate's upper margin of seriousness, presumptively calling for a gaol penalty may, in the atmosphere of the District Court, appear with the benefit of time to be a far less grave matter.
The pace of a busy Magistrate's Court is not always conducive to the conduct of a complex plea, particularly where there may be some argument about the facts or where it is clearly essential to call evidence, either as to the facts or on some valuable issue of good character.
If you have carriage of an indictable matter at the Local Court level and you are unsure whether there is a defence or whether a guilty plea is appropriate, it is quite legitimate to conduct committal proceedings limited in scope - in the knowledge that in some instances beneficial exposure of certain facts through that mechanism may be preferable to a plea resolved before the Magistrate as a summary matter. One may also then be in a more informed position to decide whether, on an eventual plea in the District Court it is worthwhile to pursue disputed facts on sentence through to the calling of evidence by the prosecution or the defence. The committal charge may be susceptible to favourable amendment or pleading down after some examination by the DPP, sometimes even before there has been a defence approach.
When in doubt as to whether a plea should be entered before the Magistrate, one may consider the option of having the matter either committed for sentence in the District Court or running a limited issue committal, accepting that there will be a prima facie case but preserving client the benefit of some expression of contrition when a plea is finally entered before the District Court Judge. Sometimes this course is preferable as the committal for sentence option under the Criminal Procedure Act 1986 is less flexible. One can submit that a plea offered after an amended indictment is preferred at the District Court arraignment is a plea deserving of a significant discount.
In R v Borkowski [2009] NSWCCA 102 it was held that, in the usual case, the discount for the utilitarian value of a guilty plea at arraignment should not be more than 15%: [36]. The maximum discount for utilitarian value of the guilty plea will only be given where the accused pleads guilty in the Local Court, although there may be exceptional cases for awarding the maximum discount for a guilty plea entered in the District Court. Howie J sets out the 12 "principles of general application" in relation to the discount for a guilty plea at [32]:
In R v Thawer [2009] NSWCCA 158 Howie J said at [46] that the decision in R v Borkowski does not prevent a judge awarding a discount of 20% in an appropriate case even when the plea is delayed until the offender appears in the District Court.
Conviction of a lesser count at trial may see the discount preserved where the Crown has initially rejected a plea to the lesser count, which the jury finds proven at trial. As to the latter, see R v Oinonen [1999] NSWCCA 310, where the offender offered to plead guilty to manslaughter. The Crown would not accept the offer and persisted with the indictment for murder. At trial the jury found the offender guilty of manslaughter. On appeal, although the applicant did not technically plead guilty at an early stage, it was held that he should have been given the benefit that might otherwise have been expected for a plea of guilty. Therefore, where a person who is charged with murder offers to plead to manslaughter, this fact is a mitigating factor if the person is eventually found guilty of manslaughter . The offender should be sentenced as if he had pleaded guilty to manslaughter, even if he did not plead guilty to manslaughter in front of the jury: R v Cardoso [2003] NSWCCA 15. A different approach was taken in FD & JD [2006] NSWCCA 31.
It seems that if shortly before trial, the Crown offers to accept a plea of guilty to a lesser charge for the first time (such as manslaughter in a murder trial), and this offer is accepted, the full utilitarian discount of 25% would only rarely be available: R v Ahmad [2006] NSWCCA 177 at [17] to [18].
A note on sentence committals: One will quite occasionally find situations where a client has already opted to plead on a committal for sentence which is subsequently revealed as defective in some regard or in fact a graver reflection of criminality than perhaps either the evidence or the client's later and considered instructions reveal. Often upon reflection and negotiation, the DPP will oblige with a more appropriate and lesser charge on indictment being accepted. Of course, that is a courtesy upon which one should not rely if the plea can be the right one at the magistrate's court, thereby removing any room for doubt that the plea has been entered at the earliest opportunity. As indicated above, the issue of timeliness in the plea is likely to be more closely examined by judicial officers and the extension of the up to 25% discount is not to be taken for granted. Obviously if the committal for sentence charge is also appropriate to one's instructions and seems to err towards the more charitable end of a range of possible indictments one would be wise to seize the moment and lock everyone into the original plea.
If in doubt, one should be clearly convey to the sentencing Judge that what were technically committal proceedings or perhaps negotiations also causing delay before were run and conducted with the utmost expedition, and if it be the case, with no attacks upon witnesses-in particular where there has always been an undoubted victim of an offence. The client has lost nothing in a situation clearly revealed in these terms when entering a plea on the basis of being consistently contrite in his or her attitude. The submission of contrition is stronger, of course, where there has been some variation in either that original charge of in some aspect of the ultimately agreed objective facts. Remember, that the time and circumstances of plea are an important fact of mitigation and a late plea to a late-settled indictment needs to be clearly identified to the court and properly credited as a plea at the earliest opportunity.
Where appropriate and reliable information as to the date of plea instructions exists it is proper and helpful to quote that one's diary note or that of your solicitor shows that instructions were given on a particular date. Have regard to the matters listed in this context under section 22 (1) of the Crimes (Sentencing Procedure Act) 1999 [and formerly in the repealed section 439 of the Crimes Act 1900].
At a minimum the advocate's brief on sentence should contain a copy of the s.51A committal for sentence document or a copy of the indictment if the matter has been listed for trial, depositions from the Magistrate's Court, in particular, copies of any ERISP Record of Interview made by the client. Usually you will not have the DVD supplied in a sentence brief and it may not be essential unless, for instance, as an aid to a psychiatrist or psychologist assessing the client. In most cases where facts are not contested or where direct evidence of the client's demeanour at the time of interview is not relevant, the transcript or even summary thereof will suffice.
The straightforward answer to the above question is, ordinarily: your instructing and your client, with any witness or potential witness to be seen apart from the client.
There is, however, a qualification to the usual approach that having even a non witness sit-in merely complicates or imperils the efficiency, if not the propriety, of what is done in conference:
This arises from the disproportionately large of persons charged with criminal offences who are intellectually disabled or afflicted with mental illness. As with young persons, one must be careful and tactful in approaching the task of reconciling the requirements of these clients with the application ethical practice standards, particularly as to the matter of conferences and potential witnesses. If possible, for pragmatic, as well as compassionate reasons, one should accommodate such a client's wishes if it is desired that a non-witness person attend the conference as a supporter. Where the rules and limits are firmly set by you, in accord with bar ethics, the presence of a support person can advance the processes of obtain clearer and more comprehensive instructions. An accompanying person should be excluded if there is any likelihood that they will become a witness in any contentious (which can include character evidence) area. There must be no interventions to 'help' with evidence and the person should be asked not to contribute beyond lending the their presence. Certainly, there should be no hint of coaching cajoling, or turning the encounter into a three-handed interrogation or urging the client to take one course or another. Occasionally, one may be challenged by an accompanying third party demanding to sit in when this it is not appropriate. If one needs a justification, one can usually explain the limits of proper practice with courtesy, to the effect that problems can otherwise arise when matters come to court. Most potential interveners become markedly less enthusiastic if it is suggested that they might become embroiled in controversy at a later date.
One would expect that a good brief would contain much of the following. Sadly, that expectation has in many cases fallen victim to inexperience or the pressures of time and money operating in a solicitor's practice. The following suggested Notes of Conference format may be of some assistance in formulating a personalised check list of further instructions required to supplement any file or brief that falls short of the ideal. If you have not been briefed with adequate details try not to be too mechanical in taking them from the client but establish a rapport first and then return to your list of topics. It is worth spending a little time explaining to the client how some of this apparently irrelevant snooping may turn out to be of great value in equipping you to advance the client's case.
The custody record will be valuable in identifying those periods of custody referable to the sentence, as distinct from any previous sentence, and the basis for a backdate to a readily identifiable date. Be aware also of sequences revealing circumstances of aggravation such as the commission of offences whilst on bail or during the currency of a recognisance or parole].
(With any particulars - such as 'on protection' or 'has a job in the prison bakery, laundry' etc.)
If the client has been in protection or is likely to serve any sentence under that status, one needs to find out what grade of protection has been afforded, why, and for how long it is likely to remain in force. Protection is an important factor, often amounting to real hardship bearing upon the severity of the sentence and the assessment of Special Circumstances that may vary the requirement under s.44 (2)(a) of the Crimes (Sentencing Procedure) Act 1999 that a non parole period 'must be not less than three quarters of the term of the total sentence unless the court decides there are special circumstances'.
There are many kinds of protective custody. It is important to try to call evidence of the likely practical effect of the offender serving his sentence in protection if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of other prisoners: R v Totten [2003] NSWCCA 207; R v Ah-See [2004] NSWCCA 202. A sentencing judge will be required to make a prediction about the conditions in which the sentence would be served: Lodhi v R [ (2007) 179 A Crim R 470 at [254]. The weight such a factor will have will also depend on the objective seriousness of the offence and factors such as general and specific deterrence: R v Durocher-Yvon [2003] NSWCCA 299 per Howie J at [19] -[20]; R v Mostyn [2004] NSWCCA 97 per Howie J at [179] - [181].
Obtain details of any courses attended in custody and ask the client to bring any certificates of attainment to court.
This time-honoured category remains useful. Is there a certificate of honourable discharge or any other material that may support the client in his assertions of good character? Do not overlook that even a service personnel who have been aid or peacekeeping missions may have been exposed to experiences giving rise to post traumatic stress and related psychological disorders. For example, a young former soldier whose offending commenced after he became clinically (and understandably) depressed after witnessing the grisly aftermath of mass murder in Rwanda. This is often not the kind of thing a client will readily disclose, or always recognise as relevant and requires a little probing and time taken in getting to know the client's background.
Family and domestic situation: With whom does the client live? With whom and where did the client grow up? Are there relevant problems with a spouse, parent or child? Usually one may canvass these areas without causing offence by asking about family members and who one's closest confidant is and are things generally happy within the family of relationship, are there particular problems or burdens with anyone's health or otherwise. It is preferable of course not to enter into these discussions if the other family members in question are present. Particularly with younger clients or disabled persons, one sometimes needs to remind, even helpful parents, that whilst their insights are welcomed and helpful, your professional rules require that you can only be instructed by the client through the solicitor - not though the family. It is preferable for this reason to interview most clients with the instructing solicitor, alone but there will be occasions to depart from this practice.
Clients who come from difficult and abusive backgrounds do not always recognise their personal history in those terms, more than one client has told me that he had a 'good' father and saw no contradiction in later telling me that his father's favourite mode of correction, for child and spouse alike, was - a good flogging 'One is sometimes assisted by a good deal of patient and unblinkingly, non judgmental inquiry along the lines of; - when you were a child what kinds of things were done by your parents if you were to be punished for doing something?
Ideally one should be able to obtain an accurate Corrective Services printout, as opposed to the often-inaccurate police fingerprint-based record. With the Corrective Services document one can discuss details of offences and terms in your conference with the client. Unfortunately an accurate printout of any criminal convictions often remains elusive until the day of hearing and one may have to rely on the client, at least initially. When doing so a great deal of later embarrassment can be avoided by starting with the fact that the record, if any, will certainly be produced in court by the Crown. The initial diplomatic inquiry 'tell me, have you ever been in any trouble with the Courts?'may well turn up a blank but more often an at least sketchy picture emerges. Sometimes clients genuinely forget vital details of a lengthy criminal record, eg repeated commission of a similar and serious offence. One usually finds it helpful to start with juvenile offences or ask if the client has ever been in prison, what the first prison sentence was and what the most serious or lengthy sentence was and in respect of what offence? After this, most other details tend to fall into place. Be aware that sometimes an apparent brick wall between what you are told and what may be on the record, particularly as to minor non custodial entries are matters where the client has - taken the rap', typically for a brother or other close relative.
It is particularly relevant to determine if a client is currently serving a bond or may owe balance of parole. Other relevant questions will be whether earlier offences were committed in company or under circumstances common to the present offence - eg was alcohol or mental illness a recurring factor? There are rare instances where the detail or validity of a prior and relevant entry needs to be further investigated by either by asking the Judge to direct the production of a relevant prior file or by obtaining the client's consent for the uplifting of a solicitor's file. Such an instance would be where the choice is between simply living with the bare entry, say, a prior matter for assault occasioning actual bodily harm or actually finding out the details which confirm the client's instructions about its mitigatory features. The client is, of course not being sentenced for the old matter but it may be relevant and raised by the prosecution, if not by the defence.
A 'record of previous convictions' is included in the list of 'aggravating factors' to be taken into account on sentence: s 21A(2)(d) Crimes (Sentencing Procedure Act) 1999. At common law, the effect of a prior criminal record is not to increase the objective seriousness of the offence but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted': R v Shankley [2003] NSWCCA 253 per Howie J, at para [31]; Veen v R (no. 2) (1988) 164 CLR 465. It has been held that this principle still applies: R v McNaughton (2006) 163 A Crim R 381.
Sometimes one will be sent copies of references and supporting letters with the brief. More often one will have to advise the client to obtain them. Ensure that originals are not lost [which means, for an instructing solicitor, not giving them to counsel until the point of tender!]. Retain sufficient copies for yourself and the Prosecution. Ideally, it is the originals that should be at Court for tender. As with all documents, in addition to the original, judges usually greatly appreciate being given a working copy, which can be marked. The task of gathering references and assessing which witnesses, if any, will be available and able to improve your client's case by giving oral evidence is something to be attended to promptly and not a task to be cobbled together on the hearing day if that exercise can possibly be avoided.
It is proper and wise to advise a client that reference should be legibly written, clearly identify the author with a letterhead where appropriate. Identify the circumstances and the duration of the relationship between the referee and the client. The reference should clearly state the referee's view of the client's character with particular emphasis on the issue relevant to the particular offence.
For example, in a fraud case a prior history of honest dealing or trusts given and honoured. In a driving-related case, observations of the client's hitherto responsible attitude to drinking and driving with particular social instances if they are available. Note - it is most important that the reference be the referee's own words although certain vital areas might be suggested as relevant for comment.
One should impress upon a client that on a guilty plea a reference should indicate that the referee knows of the offence. Sometimes a client's employment realities or a natural sense of embarrassment will preclude this. It is a matter for the client's own choice. One should discourage referees from commenting on the issues of guilt or innocence and on no account should a reference suggest that the Court should follow a particular course.
You may find it helpful with clients of limited education or confidence to supply the client with a broad written outline of the matters that a reference should contain.
Let there be no doubt that your client instructs you, not merely that the client wants a guilty plea but is in fact guilty - see R v Turner [1970] 2 QB 321. This principle applies whether the plea has arisen from initial instructions or has arisen as a consequence of the client abandoning early instructions of innocence. To this end, a signed confirmation of instructions to plead, preferably reciting the elements of the offence as applied to the facts, is desirable. The important matters are that guilt is plainly conceded either on the basis of what the client concedes specifically and knows or [particularly in the case of the all too common "I don't remember" instruction] concedes as being the undoubted and provable truth, even if not remembered by the client. To avoid any chance of misunderstanding it is sometimes useful to place a handwritten confirmation of the terms upon which the client understands the plea on the foot of a copy indictment, which will have been provided to you or your solicitor at arraignment. The client may be given a copy of this document to carry into the dock. This is particularly helpful if there is a complex multi-count indictment and there are pleas of not guilty to some counts but pleas to alternatives accepted by the Crown in full satisfaction of the indictment.
Where a client states that s/he is not guilty but will plead guilty anyway, a helpful discussion is contained in a paper by Justice Hidden 'Common Ethical Problems for the Criminal Advocate'(2003) and his Honour's appended paper 'Plead Guilty and Get It Over With'(1991). These papers are available on the website of the NSW Supreme Court and in (2003) Criminal Law Journal 191.
We will not examine in detail the question of whether there should be a plea in a particular situation. This is a subject for at least one paper in its own right. We do urge that decisions to plead, other than in adherence to a committal for sentence from the Local Court should wherever possible be recorded by clear written, or at least signed, instructions that have been read by and to the client. The last step of reading aloud is important due to the sad fact that a significant proportion of persons appearing for sentence are functionally illiterate, although sometimes adept at concealing that fact. The document can be hand-drafted at the conclusion of the pre plea conference and it should look something like this:
'I, John Smith instruct Ms Mary Justice, Solicitor that in the matter wherein I am presently charged with breaking, entering and stealing $2,000 at Parramatta on.. I wish to enter a plea of guilty. I understand that my guilty plea means that I admit that I broke into Mr Brown's shop and took away $2,000'
Signed...............Date............
Where appropriate clients who have need of an interpreter should have the instructions translated for them by the interpreter who should be asked to write
'The above document has been translated and read aloud to ......... by me
Signed..................Government Interpreter'.
If you are of the view that the client would have required an interpreter to give evidence, even if he or she is not taking that course, an accredited interpreter should be used at this stage. It is certainly preferable that you do not rely on family or friends of the client. A bi-lingual solicitor or counsel should also be wary of being drawn into controversy if interpreting and it later transpires that the client repudiates the plea on appeal.
In the case of illiterate or intellectually compromised clients one should confirm instructions to plead by explaining the elements of the indictment and then asking the client to repeat what the essence of the charge is and to explain in simple terms what he or she admits to by virtue of the plea. A client incapable of this exercise plainly raises an issue of unfitness to stand trial or at least the risk of procedural unfairness, if unable to participate at the minimal level required for a plea. Instructions should never be accepted from a client adversely affected by alcohol or drugs. If necessary, instructions should be delayed until another day or later in the day, if you are before the court and the plea is at the last minute. Embarrassing, as it may be to tell a judge that your client is indisposed and unable to give instructions, it is preferable to the profound ethical dangers in the alternative.
One is aware that some lawyers are reluctant to embark on the sometimes time consuming course of obtaining written instructions because they imagine it may complicate things or cause the client to baulk at instructions already clearly given orally. It would be rare not to seek signed instructions and one should treat an unwillingness to sign such instructions as a worrying sign that the client may be planning to keep the open an option of repudiating the plea at a later stage. The point at which instructions to plead are given or confirmed is also the appropriate moment to carefully advise the client as to the need for candour in the signed instructions and consistency when giving a related history to any assessing medical practitioners or the Probation Service. Many a good plea has come badly unstuck because a client has assumed an evasive posture, inconsistent or untruthful posture, with a Probation Officer. One needs to accept that stumbles of this kind often arise from deeply entrenched habits in dealing evasively or defensively with authority figures, particularly those in a position to either advance or significantly harm one's cause. If you have anxieties about a particular client's level of intellect or a fear of authority figures posing a risk of matters going awry it sometimes helps for you or the instructing solicitor to introduce the client to the duty Probation Officer at court, at least to establish a presumptively favourable relationship with the service.
If the client instructs that there has been a particularly adverse personal relationship with a former supervising officer, the issue may become one of choosing between having no report [difficult if your client is a candidate for a sentencing option that procedurally requires a formal Pre Sentence Report assessment] or of candidly suggesting to the judge that it would be preferable for a report to prepared by another officer. In many cases Judges will suggest that the Service take this course in the interests of a more informative report emerging. The fore-going set of dilemmas is an unattractive place to be and a client ought be asked to think whether he or she has a real problem with a particular officer or the problem is one that was simply inherent in the situation of the client and any officer at the time. Plainly a poor history may reflect nothing more than a poor reality, although one should not be dismissive of a genuine belied of past bias on the part of an assessing officer.
If the client has a relevant medical history particularly one backed by informative current or past psychiatric and psychological reports, you should consult with the client and indicate that it will be sensible to provide copies to the Officer and that you intend to do so. Although this is part of your forensic discretion you should carefully consider any objections that the client might have and bear in mind that the contents of the report will be discussed in any probation service interview with the client. The key to these kinds of issues is to inform those who might assist the client and to avoid conflicts in account or impressions given by the client to experts upon whose assessments the Court may rely.
Assuming that the decision to plead has been made or confirmed in conference, your client is likely to seek some advice on what is to become of him or her.
In state matters, the NSW CCA has stated that a 10% to 25% discount can be given for the bare utilitarian value of the plea (that is, before genuine contrition is taken into account). The timing of the plea is obviously an important factor: see R v Thomson & Houlton (2002) 49 NSWLR 383.
In Commonwealth matters, the issue is not whether there is a utilitarian value in the plea, but the extent to which the plea demonstrates the offender's willingness to facilitate the administration of justice: R v Cameron (2002) 209 CLR 339; Danial v R [2008] NSWCCA 15. The strength of the Crown case is also relevant to how much weight should be accorded to the discount for the plea in Commonwealth matters: R v Tyler & Chalmers (2007) 173 A Crim R 458.
Of course, the fair response to the usual plea-discount explanation is - 10 to 25%, but off what?'The heavily qualified nature of any response indicates why precise predictions are unwise. It is not helpful at one extreme to simply leave the terrifying fact that the maximum is, say, 14 years, for breaking entering and stealing, without a great deal of qualification about the reservation for worst cases, objective facts, plea, subjective matters etc. A tiresome lecture on the law of sentencing aside and within certain parameters one may safely predict very little. This includes the fact that some matters are of an inherent character that entails a presumptive custodial sentence. There are some obvious candidates in a long non-exhaustive list, for instance, making a custodial sentence a fairly safe prediction for armed robbery, for a non-user supplier of drugs for profit, and certainly for sexual offences against minors involving actual intercourse. In these kinds of instances it is sensible to leave the client with no illusions and state quite simply that it is a question of mitigating a gaol sentence rather than avoiding it.
Of course these observations are subject to the standard non parole periods which apply to certain offences under ss 54A-54D of the Crimes (Sentencing Procedure) Act 1999. Although not applicable to sentences after a guilty plea, the standard non-parole period still 'can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant': R v Way (2004) 60 NSWLR 169 at [122].
Where a client has unrealistic expectations that you will both seek and obtain a bond, the notion of a Crown Appeal needs to be explained as gently as you may, preferably before the trauma of sentence clouds the client's judgement and that of family or friends. Where you believe the prospect of a non-custodial result rests on a fine margin it is best again to avoid making predictions. Where discussion of the subject is unavoidable, particularly with the more experienced client it is helpful to ask what the client expects or "can live with'. Often the expectation is a fair and realistic and one can at least assure the client that one will have it in mind as a target to be bettered if possible.
It is a good idea generally to give at least a sketch of the relative roles of yourself, the prosecutor and the Judge, with some explanation of the need to balance a natural desire for a good result with a concern to hold onto it should there be any danger of a crown appeal.
If you are unable to make any positive observations about a Judge make none. Burdening the client with one's own opinions and prejudices as to the various personalities can translate into an inappropriate and self-damaging demeanour in the client's interactions with the Bench. Even positive observations have their risks particularly if one finds oneself moved from the 'nice' Judge to the 'other' Judge in an adjoining Court.
In summary: clients deserve answers to the great questions concerning their fate and the best answers are ones as incapable of misinterpretation as possible:
Pleas of guilty in any court should never be regarded as simple matters or matters where anything short of high standards of advocacy and skill will be required. One needs to abandon any sense of 'it will be all right on the day ". Apart from the innate irresponsibility of such an approach may lead to personal and professional grief, in the form of professional disciplinary perils and the possibility of being publicly revealed as incompetent by the processes of an appeal to the Court of Criminal Appeal. Unlike appeals from magistrates, the application for leave to appeal against a sentence miscarried through the neglect of counsel will minutely examine the words and deeds of the advocate appearing on sentence. Even when "in the right " there are few more unpalatable professional experiences that having to file an affidavit, or worse, having to appear as a witness in the Court of Criminal Appeal.
One is entitled to insist on being properly prepared and professionally briefed by one's instructing solicitor. If one is not properly briefed initially, energetic inquiry should be made, seeking to be fully informed, amongst other things, of all the matters upon which the Crown relies. This will include:
As counsel, it is quite likely that the Judge will look to you to explain any factual complexity that the prosecutor cannot immediately make plain. If you are in a busy court the Judge may well excuse your opponent for not being totally on top of your matter as but one of several matters commonly carried or passed to a prosecutor at the last minute. You are unlikely to be similarly indulged with your own matter. You owe it to your client and to your own professional standing to be totally 'on top of the facts'. This is an indicator of basic competence and is an invaluable asset in maintaining a credible presence in Court. An advocate so armed is in the best position to advance the client's interests to the greatest degree that the matter will allow.
Delay of one degree or another in is unfortunate, frustrating and still not infrequent. Sometimes it is inherent in what is to be achieved. Clients need to be made aware of this and of your conscientious efforts to avoid both delay, on the one hand, and inadequacy of the material essential to the most favourable result on the other. There are some delays that are unavoidable if a just and informed sentencing process is to take place. Sometimes in the heat of a crowded list you may need to say this to a judge properly anxious to brook no delay of an important case. Sometimes delays are patently intolerable. Indeed, the prevailing judicial culture and improved listing procedures has made most judges even less disposed to countenance delay than in the past. Counsel should be similarly way of avoidable delay, particularly where an accused person is in pre-sentence custody and there may be a prospect of the sentence being non-custodial or relatively short. Be aware of this before making any doomed application for adjournments. Consult the client about any proposed adjournment.
There have been examples of counsel quite justifiably and noisily sacked in open court by an angry client who has been consigned to a lengthy extension of remand custody without being let into the convenient arrangement just contracted between counsel the prosecutor and a list judge. There is a strong line between forensic discretion and indifferent, ill mannered and callous disregard of the person in the dock. One needs to make considered and informed assessments of the client's best interests as advised by you and accepted by the client. Where a delay is plainly necessary and the client is suffering no forensic disadvantage one needs to be clear in advice to this effect. When a client insists on proceeding against advice of this type one may have to confront a situation where signed instructions to proceed may be prudent and a valid means of conveying the gravity of the decision to the client. Certainly, one should not be embarrassed to assert one's professional view that understands a human wish to get things over with but perceives a disaster if this is done without proper regard to the particular forensic demands of the case. It is sometimes helpful to say to a client that a few weeks of delay for proper preparation may be a better choice than the months or years of an otherwise heavier sentence imposed for the want of that preparation. That the client, or his mother or his girlfriend says, 'I want to get this over with' is not an instruction that is mandatory in the face of indications that to get it over with would be damaging.
It is as well to have a grasp of realistic time scales to prepare reports and at least be aware that a Pre Sentence report will ordinarily take six weeks if you suggest otherwise and turn out to be wrong it does nothing for your credibility, the Judges mood or the Legal Aid budget.
From one's own viewpoint and that of the Judge who might otherwise be burdened with a formless series of assertions, it is preferable to structure one's submissions into a series of categories which will mirror the usual order and content of remarks on sentence. Judges are more inclined to regard this as a helpful exercise and the proof of this is when one's submissions are incorporated as part of the equivalent stage in the Judge's own remarks. Have a concept of what you want, what is the achievable limit and what you need to say, establish and avoid getting to your desired destination. Be aware of all options and sentence regimes as applicable to either a State or Commonwealth offence. Be aware of the various remedies, full time or part time custody, fines, bonds, home detention the drug court and suspended sentences. There is no point asking for the Drug Court, if living out of its area of operation and no point asking for home detention if your client is in one of the extensive categories excluded from the scheme.
A typical sketch of a structured plea is as follows:
Objective matters: [To be covered and which amount to an 'audit' of the offence and its features:]
The formal details of the offence. 'Mr X has pleaded guilty to........ counts of under section,. The maximum penalty for such an offence is.......... years .
The facts: 'Are as outlined and conceded by the Statement of Facts'.
If this is not so you should not have consented to the tender of the Statement without either embarking on a formal contest of the facts or, at least recording those matters which are not conceded, even if the decision has been made not to vigorously contest a factual argument assessed and accepted by the client as futile. If such a conclusion has been reached it may be another area for signed instructions. Saying that you do not agree with some feature or other is not sufficient, absent agreement or evidence and a finding that the adverse fact has not been proven beyond reasonable doubt. This is not an exercise to be entered into lightly, particularly if the facts in issue are peripheral.
Features of the offence including features that obviously aggravate e.g. It was an armed robbery on a taxi driver with use of knife [the class of vulnerable victim and the nature of the threats or weapon used are at law matters of aggravation that one may consider preferable to concede as matters that are unavoidable features before either your opponent or the Judge does]. The short formulation is that inevitable bad news characterisations are better out and dealt with by the defence than produced with a flourish by the Crown or by the Judge with glowering disapproval that neither party has a realistic grasp of the offence's gravity.
In accord with the above, one should realistically classify the offence on scale of gravity, if possible. eg. Any armed robbery is a serious offence but less serious if the 'gun" turned out to be a bicycle pump or a rolled-up newspaper. Relate the offence to the framework of any relevant Guideline Judgment as to the offence or as to the Guideline on pleas of guilty.
Classify the role of the client and his place in any hierarchy of offenders: e.g., the client drove a getaway the car. Whilst his role was vital to commission of the crime it was subsidiary to the principal who, on the evidence was the insider who planned and executed the assault upon the victim at his place of work. If there are obviously aggravating factors available on the evidence tendered, such as those relating to the client's status as someone on bail or subject to a recognisance at the time of the offence, it is best noted and acknowledged by you rather than raised last by the Crown as something which may detract from your more credible submissions. The more crisply you get these issues out of the way in realistic terms the less time or need the prosecutor will have to wax lyrically about how seriously the Court of Criminal Appeal takes the matters that you have blithely ignored.
Sometimes one faces the challenge of a client who has committed a great many offences of the same specie. In some American jurisdictions this simply means adding sentence upon sentence, even to the point of producing a result in hundreds of years. Our approach of looking at a total sentence sufficient to deal with the totality of criminality is, thankfully, different and more humane. The simple raising of totality is not a magic mantra to wipe away the impact of a multiplicity of offences. This is an important matter to clarify, particularly as many seasoned offenders and those whom they advise in custody retain the belief that there is an entitlement to wholly concurrent sentences for offences that are in some general fashion related one to the other. This is a misunderstanding of both past, now disapproved, and current principle. One should expect and advise that; whilst eight armed robberies related in time may not result in eight times the sentence for one such offence, there will be a substantial and proper loading for the fact that there were eight and the outcome will certainly be more severe than for [say] four of five similar offences. One needs to be aware of the principles that may allow the imposition of an appropriate total by imposition of either concurrent or cumulative sentences. A judge is required to proceed first by determine the appropriate sentences for each offence and then apply the principles of totality to the accumulated or concurrent out-come of a sentence appropriate to all the circumstances, including total criminality and the desirability of avoiding an unduly crushing sentence.
As to totality generally, see R v MAK [2006] NSWCCA 381; R v MMK (2006) A Crim R 481 (1998) Pearce v R 194 CLR 610. If dealing with more than one offence, particularly when committed at different and widely dispersed dates always consider the issue of totality but unless you can tie matters together as a related chain of criminality you should not assume the totality principal will automatically translate into concurrent sentences. If the reality is that there are groups of disparate offences in discrete episodes, be ready for a second line of benefit from the principle. The latter lies in the proposition that the total of unavoidably accumulated sentences should be shorter in aggregate than would be the case in a simple aggregation of individual criminality represented in each offence.
When sentencing, the court may take into account further offences placed on a Form 1 with which the offender has been charged but not convicted: s 32 Crimes (Sentencing Procedure) Act 1999. In the guideline judgment Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 at [39], [66] the CCA held that the offender is not punished for the offences on the Form One. The sentencing court is sentencing only for the 'principal offence'. It is not for the sentencing court to determine appropriate sentences for Form 1 offences. The effect is that Form 1 offences are given a 'significantly lower salience in the sentencing process.'
In R v XX [2009] NSWCCA 115 the CCA set out the following summary of the principles relating to concurrent or cumulative sentences (at para [52]):
See also Marshall v R [2007] NSWCCA 24 at [27] citing R v MMK [2006] NSWCCA 272; R v Hammoud (2000) 118 A Crim R 66; R v Cahyadi (2007) 168 A Crim R 41.
Be aware of the distinction between evidence, which aggravates and material, which, if established, would have rendered the offender liable to punishment for a more serious offence; the court is entitled to take the former into account, but not the latter. See The Queen v De Simoni (1981) 147 CLR 383 at 392; R v Wickham [2004] NSWCCA 193; Huntingdon v R [2007] NSWCCA 196; s 21A(2) Crimes (Sentencing Procedure) Act 1999. Note: De Simoni is sometimes erroneously quoted to support an argument that the Crown cannot lead evidence of aggravation consistent with the commission of any other offence.
Be aware that a contested circumstance urged by the prosecution is a matter requiring proof beyond reasonable doubt, whereas a contested mitigating factor requires proof on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464; Kennedy (2008) 181 A Crim R 185.
s 21A(2)Crimes (Sentencing Procedure) Act 1999Aggravation and Double Counting:
s 21A(2)(a)-(o) Crimes (Sentencing Procedure) Act 1999 sets out a non-exhaustive list of aggravating factors that a court is to take into account on sentence. Factors include that the offence was committed with a weapon, involved the use of violence or committed in company.
When a court is considering aggravating factors under s 21A(2) one should be aware of the prohibition against double counting.
A court is prohibited from treating a factor as an aggravating feature if it is an element of the offence: s 21A(2). For example, in R v Davis [2004] NSWCCA 310, it was an error to take into account the fact that the victim suffered actual bodily harm under s 21A(2)(b) ('actual or threatened use of violence') when that factor was already an element of the offence of 'Taking and detaining in company with intent to obtain advantage and occasion actual bodily harm' (under s 86(3) Crimes Act).
However, the degree to which a factor which is an element of the offence is present may be relevant as a factor of aggravation. For example, it will not be an error in a robbery in company matter to take into account that the offence was 'committed in company' (s 21A(2)(e)) where the offender was with a large number of intimidating cooffenders: R v Way (2004) 60 NSWLR 168 at [107]. Similarly, inflicting grievous bodily harm is an element of 'Reckless grievous bodily harm' and 'Inflict grievous bodily harm with intent', so the fact that grievous bodily harm resulted cannot be an aggravating factor for such offences. However, if the victim's injury is significantly more than the minimum necessary required for grievous bodily harm, the injury may be taken into account as an aggravating factor: R v Zoef [2005] NSWCCA 268 (the victim was permanently paralysed); R v Chisari [2006] NSWCCA 19; Nowak v R (2008) 183 A Crim R 526.
A court cannot double count an aggravating factor where it is an inherent characteristic of the offence: R v Youkhana [2004] NSWCCA 412; R v Solomon (2005) 153 A Crim R 32. For example, the CCA has said that for offences of 'Aggravated dangerous driving causing grievous bodily harm or death' it will almost inevitably be the case that it is an inherent characteristic that such an offence is committed 'without regard for public safety'(see s 21A(2)(i)). It would therefore be an error to take this factor into account But where there is such lack of regard for public safety that it 'transcends that which would be regarded as an inherent characteristic of the offence', it may be considered as an aggravating factor: R v Elyard [2006] NSWCCA 43.
[Those matters relating to the offender and his background which bear upon the commission of the offence.]
1. The fact of the plea of guilty.
2. Was the plea timely? The most important factor in valuing a guilty plea, in the view of the Court of Criminal Appeal, would appear the timeliness of the plea. See the sentencing guideline on guilty pleas in R v Thomson: R v Houlton [2000] NSWCCA 309 17 August 2000. Also section 22 of The Crimes (Sentencing Procedure Act which is to similar effect as the repealed section 439 of The Crimes Act 1900, as to the above aspects of a plea to be taken into account.
3. Was there more than bare utility in the plea? i.e. was there a more than fanciful prospect of acquittal had the matter gone to trial. [One should not overplay this factor and real chances of acquittal are usually only arguable in such classic cases as the circumstantial and uncorroborated case or the matter where the crime would have gone undiscovered or unpunished but for admissions by the accused.]
4. Was there any assistance given to police regarding the apprehension of co-offenders or persons related in other offences? [See s 23 Crimes (Sentencing Procedure) Act 1999 which is to the same effect as the repealed s 442B Crimes Act 1900; see also R v Gallagher (1991) 23 NSWLR 220 and R v Cartwright (1989) 17 NSWLR 243. The assistance discount is usually referred to in short-hand as a 'Gallagher discount' and it is preferable that it be discretely so described if asking for an adjournment so that evidence of this type can be compiled with the supply of an - assistance statement - from police quantifying the value of assistance given. In R v Cartwright you will find an outline of the sealed envelope procedures, with which you should be familiar before embarking on the assistance path in open court.
The area of assistance is matter for careful and restrained advice. One should neither permit a client going into custody to make an ill informed decision affecting his or her safety in nor blatantly advise that a client not assist the authorities, if the client is inclined to assist. In an appropriate case the assistance factor may be the strongest favourable matter on sentence, with particular attraction where the objective circumstances otherwise permit the possibility of a non-custodial penalty. The client must be advised to understand that: 'assistance' means holding nothing back and may entail being called by you to confirm the maters revealed in the assistance statement and adopting on oath a proof of the evidence intended to be given, if called to give evidence against other persons. This exercise may appear simple in contemplation, but may emerge as too tall an order for many of lesser fortitude. Approached too lightly it may result in a number of woes, not the least of them being if the genuinely terrified client unnecessarily appears as a manipulative, dishonest or otherwise useless witness.
The client should also be advised that failure to give satisfactory evidence if called upon in future proceedings may result in the Court of Criminal Appeal setting aside any sentence imposed with a discount for assistance.
5. Other factors which may mitigate:
A non- exhaustive list of mitigating factors is set out at s 21A(3) Crimes (Sentencing Procedure) Act 1999. These include factors such as provocation and that the harm caused by the offence was not substantial. While not being exhaustive other mitigating factors are: first offence, out of character, youth, immaturity, as a follower, not a leader, poor health and resultant extreme hardship in prison.
One should be aware of the more ambivalent factors that may not always mitigate eg. Being drunk at the time of an offence may indeed aggravate; aside perhaps from those instances where someone not used to the effects of a particular type or quantity of alcohol ingests it in circumstances which are out of character and similarly behaves in a manner which ill judged and also out of character. Plainly, the binge drinker or alcoholic who well knows of his propensities when drunk gets no such concession: [see Hunt CJ at CL in R v Coleman (1990) 47 A Crim R 306 at 327.
However, intoxication may be mitigating in so far as it indicates that the offence was impulsive, unplanned and that the offender's capacity to exercise judgment was impaired: Waters v R [2007] NSWCCA 219 at [38]; R v Mitchell & Gallagher (2007) 177 A Crim R 94. In SK NSWCCA 21 the CCA said that 'Intoxication may sometimes assist in assessing the degree of deliberation involved in the offence: see R v Coleman (1990) 47 A Crim R 306 at 327. It may also be something which is treated as an equivocal factor which simply explains the context of the crime: see R v Fletcher-Jones (1994) 75 A Crim R 381. It is also something which can be taken into account in assessing the objective seriousness of a standard non-parole period..'.: at [7]. The relevance of intoxication is a question of fact and degree in each case: at [9].
It is now long established that a drug habit arising from illicit and non medical use, crucial though it may be both in explaining an offence and assessing prospects for rehabilitation, does not mitigate: see R v Valentini (1989) 46 A Crim R 2. There are exceptions however, see R v Henry (1999) 106 A Crim R 149 per Wood CJ at CL at [273]; R v SS & JC [2009] NSWCCA 114.
The impact of the offender's incarceration upon dependants and others does not of itself ordinarily impact as a mitigating factor. The effect of a sentence on the accused's family is only mitigation in 'truly exceptional' circumstances: Day (1998) 100 A Crim R 275, Wayne (1992) 62 A Crim R 1, Edwards (1996) 90 A Crim R 510.
It has been held that although exceptional circumstances are required before the effect on an offender's family will be taken into account as a specific matter leading to a substantial reduction or elimination of imprisonment, a sentencing judge can take into account the effect of imprisonment on the offender's family as part of the general mix of subjective matters: R v Girard [2004] NSWCCA 170; R v Nguyen [2006] NSWCCA 369 especially at paras [27] to [29].
On the issue of aboriginality see R v Fernando (1992) 76 A Crim R 58; see also Andrews [2007] NSWCCA 68.
On the issue of extra curial punishment see R v Daetz(2003) 139 A Crim R 398; see also R v Alamemeddine [2006] NSWCCA 317.
On the issue of sentence proceedings relating to children see DB v R [2007] NSWCCA 27.
6. Intellectual Disability or Mental Illness:
This is a vital and sometimes vexing area that it is important to highlight, particularly as clients in this category are both the most professionally challenging and the most vulnerable to well-intentioned mishandling.
As noted elsewhere in this paper, it is in the nature of the administration of criminal justice and in a climate of an open institutional policy, many more intellectually disabled and mentally ill people are unfortunately coming into contact with the criminal courts. If one is dealing with such individuals in the context of a guilty plea it must also be in the context that there has been consideration and advice as to:
Any issue of fitness to plead (now more broadly referred to under the co-extensive heading of Fitness to Stand Trial) and the client's ability to come within the parameters of fitness listed in R v Presser (1958) VR 45.
Any issue of a defence of mental illness.
Whether to rely on a defence and risk indeterminate detention or use it in mitigation (see A Haesler SC 'Applying the Amended Mental Health (Forensic Provisions) Act 1990'(2009).
This issue is, in fact, not for the client to decide but for you, your solicitor and the other experts (for, should the matter come to inquiry, your solicitor is, indeed, a potential expert witness as to the capacity to instruct take part a trial process) to assess. Fitness is not a matter of tactical options but one of an issue that, once apparent, must be dealt with. If it appears the client may not be 'fit' you should not appear on either a trial or a guilty plea unless the fitness issue is resolved. No matter how much the client may dispute the issue of fitness, once a real issue (note: even if you are of the view that the client may turn out to be fit) is apparent, you cannot be instructed to the contrary. If the issue arises, this remains the case until you know that the client is capable, as a matter of law, and fact of instructing at all. Of course, if the client has received advice and determined to enter a guilty plea, the focus is on the capacity to make that decision. Even a somewhat limited capacity to participate in the sentence proceedings does not compromise a rationally considered and entered plea. The essential test for fitness are those capacities listed in by Smith J in R v Presser [1958] VR 45, an authority which has long be followed in this state and has more latterly been adopted by the High Court in Kesavarajah v The Queen (1994) 123 ALR 463.
"[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."
Following major amendments to the Mental Health (Criminal Procedure) Act 1990, fitness hearings commenced after 1 January 2006 are determined by a judge sitting alone without a jury.
By way of contrast with the fitness issue, as to the matter of a discrete mental illness defence for a client who is also fit to plead or stand trial, the client may effectively instruct you to abandon any such defence, because it is accepted as not viable, or because is otherwise unattractive to the client, despite available evidence supporting the defence. The contrasting situation arises from the fact, that whatever problems even a mentally ill client may have, the law assumes him or her able to instruct on such a vital matter as a defence or its abandonment.
Outside the framework of the issues of fitness to plead and of a mental illness defence, one may expect to frequently appear for clients who are intellectually disabled, sometimes grossly so, or mentally ill, to a serious degree.
If despite disabilities the client is otherwise fit to plead, does not have or does not wish to be availed of a mental illness defence and has confirmed or initiated instructions to plead guilty on advice, one comes within the operation of a chain of authority standing for the propositions that intellectual illness or disability may mitigate in some circumstances. Because of the inappropriateness of using mentally ill or disabled offenders as vehicles for general deterrence that factor may be reduced, sometimes to a matter of very negligible weight in a particular case [see R v Letteri (CCA (NSW), 18 March 1992 unreported, but see also the qualifying R v Engert (1995) 84 A Crim. R. 67 at 68 where Gleeson CJ observed:
'In the case of a particular offender, an aspect of the case which might mean that deterrence of others is of others is of lesser importance, might, at the same time, mean that protection of society is of greater importance.' Where made, the assertion of future dangerousness is also a matter to be established beyond reasonable doubt. ] There are a number of decisions refining these propositions with the effect that one needs to identify the disability or illness as; more than an incidental, feature of the client's personality but one which has some nexus with the offence see R v Bus (CCA (NSW), 3 November 1995 M, unreported.
Apart from the considerations arising in Letteri , Engert et al, there are other ways in which the factor of mental illness or disability comes into play:
See, R v Hemsley [2004] NSWCCA 228, per Sperling J at [33]
'First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]'.
The fourth matter above is crucial, as one may be obliged to confront issues that involve balancing questions of potential dangerousness with some security for the client's own protection [most particularly in the case of intellectually disabled clients]. These questions may require fairly inventive examination of any non-custodial arrangements, by way of sheltered accommodation or other support. Sometimes clients requiring this kind of assessment will require quite painstaking cooperation between the Probation Service, Social Workers and families and the various agencies that will need to be drawn into to collaborative effort. As this takes time and patience on then part of the Court it is wise to have your solicitor confirm all one's efforts with follow-up exchanges of correspondence with the assisting entities, for tender if needed on an adjournment application. Much of the above may appear to you or your solicitor as not looking like 'lawyer's work'. In the absence of well-funded alternatives it may have to be accepted as part of the burden inherent in proper representation and certainly it should be advised and supported as such.
In Courtney v R (2007) 172 A Crim R 371 Basten JA quoted with approval the principles for sentencing mentally ill offenders as expressed in R v Verdins [2007] VSCA 102:
'[14] ..... Most recently, the principles have been reconsidered and restated by the Victorian Court of Appeal in The Queen v Verdins [2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA), following and elaborating upon the statements in R v Tsiaras [1996] 1 VR 398, in the following terms:
"Impaired mental functioning, whether temporary or permanent (the conditions), is relevant to sentencing in at least the following six ways:
Mentall illness can have a significant impact where there is a standard non-parole period. The standard non-parole period need not be determinative. Where there are two highly relevant considerations that are so totally incompatible it is not necessarily the case that the end result must constitute some kind of averaging out between the two. The mitigating factor may be determinative: R v Hopkins [2004] NSWCCA 105 at [22].
Where there have been alleged co-offenders in your clients matter do not accept your client's account of their fate as necessarily accurate. If a co-offender-offender has already been dealt with, one should obtain a copy of the remarks on sentence and assess whether one is advantaged by considerations of parity arising from the disposition of the co-offender's matter. One needs to know before which court the co-offender has been sentenced and for what precise facts and offences i.e. were there other matters complicating that offender's sentence, were there distinguishing matters of record, age, condition or role in the offence. Once clear that there has been a co-offender sentenced for the same or substantially the same matters, the prosecution may suggest to a list judge, that, if possible, the same judge sentence your client. Do not be too swift to raise this yourself, unless confident that your client will not be disadvantaged. Often one will have an instant temptation to vigorously seek transfer to the list of an apparently lenient sentencer, but caution is required. If one has the remarks on sentence for the co-offender [which you should] and no striking variation with your client is revealed, one may not be inclined to turn down an offer from a judge of lenient reputation to deal with a matter where the co-offender's sentencing judge is not immediately available. It is quite possible in such instances that a not particularly lenient sentencing judge has seen or heard something favourable to the co-offender and unfavourable to your client and the first instinct to stay with the known factor of a lenient judge is the wisest course if your opponent and the judge are agreeable.
Pursuing complete parity can be a complex business when there are variables in levels of objective culpability, prior record or subjective matters such as age or capacity for rehabilitation [as to the governing principles on parity generally see R v Postiglione 71 ALJR 875]. Sometimes competing factors will balance-out and an older client with an appalling record will still have the benefit of parity with a younger offender of better background because distinctions can be made as to early plea, assistance or a lesser level of involvement in the criminal enterprise. The variables are infinite and one should simply never assume parity in results would follow, either as a windfall factor of good fortune, or as a curse arising from another advocate's misfortune. Even if parity does not apply strictly in a particular case, one may well concede that fact but remain able to submit some limited application, for instance in R v Ellis [2002] NSWCCA 211; R v Takau [2003] NSWCCA 181.
In R v Boney [2001] NSWCCA 432 Wood CJ at CL held, at [14]:
There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with: one in the Children's Court and the other as an adult. See R v Govinden (1999) 106 A Crim R 314 R v Colgan (1999) NSWCCA 292.
In R v Sheather [2009] NSWCCA 173 for example the Court allowed the applicant's appeal on the basis that the sentence imposed was out of proportion to that imposed on his juvenile cooffender.
The guiding principles to be extracted from the above authorities and to be employed in assessing whether there is a viable claim upon a beneficial extension of parity is whether, absent parity in outcome, the offender adversely affected would have a justifiable sense of grievance see Lowe v The Queen(1984) 154 CLR 606, per Mason J at 610 (as he then was). The key word is 'justifiable' and in that context a sentencing judge may also correctly decline to impose the same sentence as another judge has earlier imposed, if the earlier sentence was plainly inadequate. This assessment is of course a moot one if there has been no opportunity for the Crown to appeal, but the Court of Criminal Appeal has on a number of occasions upheld the second and harsher sentence, even absent a Crown Appeal against the first and manifestly inadequate sentence in time.
As put by Barr J in the five-judge bench case of R v Li [2005] NSWCCA 154:
'[56] ..... The principle is simply enough stated: in a proper case the Court will reduce a sentence below that which would ordinarily be regarded as the bottom of the available range in order to achieve even-handed treatment of co-offenders. But the principle is not unlimited; a stage may be reached at which the Court will hold the comparative sentence too low to follow. The public interest will then be better served by leaving the sentences disparate.
If the matter was one, which might properly have been dealt with before a magistrate and within the confines of a magistrate's maximum available sentence of two years, is a matter that should be raised as relevant to the penalty that a judge might consider appropriate. See R v Crombie (1999 6 Crim LN 84 [1066]. This is a variable factor and will not apply where the matter was so objectively serious that the Local Court penalty limits would be an inadequate basis for sentencing.
The Court of Criminal Appeal has issued guideline judgments in a number of areas. To date these include dangerous driving causing death or grievous bodily harm, armed robbery, break enter and steal, importation and pleas of guilty. Any competent advocate must be aware of the guidelines and arrive at an understanding of how a particular matter can be related to them. Whilst the guidelines not to be viewed as inflexible mathematical formulae they set frameworks within which sentencing judges must operate, save where an exceptional case can be made out. One should be aware of the precise parameters and factors in the particular offence to which a guideline applies. As put by Spigelman CJ in Legge v R [2007] NSWCCA 244 "a guideline is not a tramline': at [59]. (In Legge the CCA reduced the custodial sentence for an armed robbery).
Standard Non Parole Periods: See John Stratton SC, Criminal Law Survival Kit.
Where listed offences are committed after 1 February 2003 and the offence is in the mid-range of seriousness, the standard non-parole period (SNPP) is required to be set unless the court determines that there are reasons for not setting the SNPP: s.54B Crimes (Sentencing Procedure) Act 1999. Factors in s.21A Crimes (Sentencing Procedure) Act 1999 and the common law are relevant to this exercise. These factors are not a 'narrow list of considerations': R v Way (2004) 60 NSWLR 168 at 56-57.
The SNPP applies to a sentence after trial only, and does not apply to a sentence after a plea of guilty: Way (2004) 60 NSWLR 168 at [68]. However, in such cases, the SNPP still 'can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant': Way at [122]. But the SNPP ought not to be seen as the starting point so as to dominate the sentencing exercise: Tidona [2005] NSWCCA 410 at [35].
In sentence matters after trial. a sentencing judge first determines whether or not the offence is objectively a mid range offence, without taking into account the offender's subjective factors: MPL [2006] NSWCCA 271. If the offence is assessed in the mid range, then the judge must next consider whether, due to aggravating or mitigating factors, the SNPP is not to be imposed Reid [2005] NSWCCA 309.
The principles relating to SNPPs is summarised in R v AJP (2004) 150 A Crim R 575. Per the Court:
'[13] The following propositions emerge from Way and subsequent cases:
(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesis what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]);
(v) that an offence is 'typical' or 'common' does not dictate that it is in the middle of the range of objective seriousness (para [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319.
[14] Finally, it is to be observed that there is nothing in Division 1A that compels a court which finds that an offence is in the mid range of objective gravity to fix the standard non-parole period in respect of that offence. Possible reasons for departing from the standard non-parole period are extensive, as s21A makes clear.
If special circumstances are found, as to the proportion between the non-parole period and the additional term, this has to be taken into account in setting the non-parole period, rather than simply leading to an increase in the additional term: P [2004] NSWCCA 218 at paras [24] to [26]. In other words, a finding of special circumstances should not normally lead to the imposition of a longer total sentence, but should lead to a shorter non-parole period and a longer parole period'.
On a plea of guilty, proceedings will commence with either the presentment of an indictment or the committal for sentence documents. One should insist on having access to a copy of all material being tendered before the proceedings, rather simply than assuming that it is to be in the form fore-shadowed. The indictment or committal document should be perused. Ensure that they do, in fact, relate to the charge to which a plea has been agreed. Do not assume that the advocate or Crown appearing is aware of all the discussions and resultant agreements as to facts or even other matters to perhaps be taken into account. This is not always the case and there may also be changes between committal and arraignment and between appearances in the District Court. As a matter of practicality if there are matters to be excised from the Crown brief to be tendered, on the basis of uncontroversial objection, it is wise to have those matters identified and satisfactorily blanked -out or otherwise excised. This is essential, rather than presenting a hard-pressed judge with a list of easily resolved but time consuming objections. The Crown will usually tender a number of documentary exhibits, sometimes, in a complex matter, through the senior Police officer. The calling of the officer is now a fairly rare formality unless necessary to explain complex material or requested by the defence and required as part of a hearing on disputed facts. As a general rule, one should try to avoid the calling of Crown witnesses unless they deal with some otherwise insoluble issue or have particularly positive things to say about one's client.
Statements of assistance to the authorities should be tendered in a sealed envelope. If assistance has been given and its mention in open court could impact on other proceedings some Judges will order the court closed. Currently there is divided judicial opinion and practice as to whether the inherent jurisdiction of the court permits such a closure but it can only be sought effectively if the prosecution is of the same view. Whether the application is granted will depend on the view of a particular judge. A Court may be closed where necessary to secure the proper administration of justice: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; R v Richards & Bijkerk (1999) 107 A Crim R 318.
Apart from witness statements and your client's criminal record (if any), which should have been obtained and checked with the client for accuracy, there will be a summary Statement of Facts. If there is no dispute as to the facts take the early opportunity to indicate to the judge whether that document really is a fair and sufficient summary of all the matters contained in what might be a dauntingly bulky stack of paper. If it is possible to make this submission it is welcomed and helpful to the bench and it also tends sometimes to brighten the atmosphere, even if only a little.
One should be at Court sufficiently early to obtain a copy of the final version of the Facts document, if not, ask for time to properly absorb it. Advise your client of its significance, as the factual basis upon which he or she will be sentenced. As with all things associated with responsible advocacy never be tempted into saying that you can read and absorb any vital and complex material at the bar table if this is, in fact, not the case. Ask for time, in this context in terms of a half hour, an hour or so, not days or weeks.
As to the resolution of factual disputes on sentence, see R v O'Neil [1979] 2 NSWLR 582 which states the proposition that the establishing of disputed aggravating factors requires proof beyond reasonable doubt. Wherever possible, likely disputes should be resolved well before a hearing by negotiation with your opposition. One guaranteed method of getting vigorous opposition is to spring a disputed issue on your opposite number as he or she wheels the heavily laden file trolley through the court door. The same precautions should be exercised with pre sentence reports. If the Probation Officer has not sought you out before the hearing you will sometimes have an opportunity to obtain the report. When the Judge first calls through the list to determine priorities. At this point you should inquire if the report is on the Registry file in court and seek some time, if necessary to consider it. In that interval perusing any positive expert reports you intend to tender may assist the Probation Officer. Ideally, if there has been some positive counselling or treatment regime in place, the Probation Service should have been made be aware of this earlier. Be careful not to "excuse" the attendance of an officer who does not want to be delayed at court. If you do not require the officer you may say so but make it clear that it is for the Judge to excuse the witness. This is a small courtesy to the court that can be satisfied early by the simple indication to the Judge that you do or do not require the officer, as the case may be. A lawyer's day can turn very nasty indeed when the lawyer unwittingly 'excused - a probation officer and thereby committed what many Judges regard as an unpardonable sin.
The Crown will lead, either through a witness or by way of a document, evidence of the client's prior record. As observed earlier, clients are not always a reliable source of this information and one should always check the official document and ask the client whether he or she agrees with the entries rather than relying on the client's memory. Although fairly rare now, it is also not unknown for the record to be wrong. Common ethnic names and uncertainty of birth dates amongst ethnic communities from countries where reliable records are not kept indicates the need for some caution. If the client insists that it is indeed wrong, as distinct from something one no longer remembers, you should make that dispute clear to the court even if it occasions an adjournment for the prosecution to make further inquiries.
If your client has other matters outstanding that should be placed on a Form 1 document you should confirm those instructions at an early stage and ask the DPP to approach the police informant with a view to having those matters taken into account with a matter already on indictment or the subject of a committal for sentence. This process may take some weeks and if not completed at the time of sentence you should ask for an adjournment.
Usually, any purported Victim Impact Statement will be tendered as the last item before closing the Crown case. One should have some idea of the scheme set up under ss 26 - 30A of the Crimes (Sentencing Procedure) Act 1999, the formal requirements for a document to be a valid report and its status as material on objective facts concerning the primary victim only. Specifically you should look to see that the report is given by a person of appropriate qualification and that there is at least prima facie connection between the expertise, the harm or impact described, the victim's own statements and the offence pleaded to. Unless real problems arise from these formal requirements one usually finds one consenting to the reports as an attractive alternative to having the victim in court.
The following should be noted: See John Stratton SC, Criminal Law Survival Kit.
Victim Impact Statements are admissible: s 28 Crimes (Sentencing Procedure) Act 1999. The court must not consider a victim impact statement by a family victim unless it considers it appropriate to do so: s 28 Crimes (Sentencing Procedure) Act 1999. If admitted the statements must relate only to matters pleaded to: Bakewell (1996) PD [258].
It has been held that victim impact statements are irrelevant in murder cases because the effect on persons other than the deceased is irrelevant to sentencing: Previtera (1997) 94 A Crim R 76, Bollen (1998) 99 A Crim R 510. See P Berman's 'The Role of Victims in Sentence Proceedings', (1997) 4 Crim LN [733]. In Berg [2004] NSWCCA 300 at para [43] Spigelman CJ (with whom Wood CJ at CL agreed) said that Previtera may need to be reconsidered in an appropriate case.
Victims or relatives of victims may now read out victim impact statements in court: s 30A Crimes (Sentencing Procedure) Act 1999.
Substantial weight cannot be given to victim impact statements in sentencing offenders because they are unsworn: Slack [2004] NSWCCA 128.
Material in a victim impact statement should be disclosed to the defence prior to the trial if they contained material which was sufficiently solid to cause reasonable prosecutors to think that cross-examination based on the information might elicit answers materially affecting the credibility of the witness: Lewis-Hamilton (1997) 92 A Crim R 532 (Vic CCA).
Pre-Sentence Reports prepared by the Probation and Parole Service should not be requested as a matter of course, this is both dangerous and wasteful of public resources, a factor to which some Judges are most sensitive.
There are classic indicators that a Pre-Sentence Report is desirable. They include:
The key questions are: Will a report assist the court and will it also assist the client?
The danger in calling for unnecessary Pre-Sentence Reports lies in the possibility that in fact the client may not strike up a good relationship with the Probation and Parole officer or may indeed reveal matters of substantial aggravation not previously contained in the Crown brief. Before asking for a Pre-Sentence Report, one must seriously consider whether the material is available with a little effort from the defence's own resources. As noted earlier, it is also prudent to warn the client of the consequences of giving inconsistent accounts to his Counsel, the medical witnesses and the Probation Service.
Parents and friends may provide some material, in particular, familiarity with and knowledge of long-standing family problems. More often where there is a basis for suspecting a pathological aspect in the client's offending, great assistance can be obtained from properly briefed medical practitioners and, in particular, psychiatrists of appropriate experience. A fair guide to selecting a practitioner, assuming that your client is not already under treatment, is to select one of the several Psychiatrists listed on both the Legal Aid and DPP panels.
When requesting an adjournment to obtain such a report, one should always emphasise that a particular problem has been revealed in the course of the preparation and it may well be of assistance to the Court to have further material upon which the offender may be properly assessed. This, of course, may be to very little avail if the case is plainly one where the problem is irrelevant or the offence of such a scale that any report is unlikely to deter the Judge from the inevitable gaol sentence.
Where possible, psychiatric reports should be prepared well before the hearing. As with all expert reports it is helpful to be supplied with the expert's professional curriculum vitae to be annexed to the report. The medical practitioner should be supplied with such documentation by way of depositions and in particular records of interview, including video records, as will be before the Court. It is preferable that practitioners with some experience in giving evidence and preparing reports are retained. If not, care should be taken that the report does not cross the line between opinion and directives to the Court as to which appropriate remedy should be adopted. The judicial fury which the latter sin provokes often obscures the good which might otherwise be done by the report. Defence medical reports should be served on the Crown to allow due consideration, anything less than forty-eight hours invites complaint, judicial criticism and possible delay in finalising the hearing.
Every witness called represents both opportunities and risks for the calling party. This is particularly so where the client is the potential witness. Some general and underlying questions need to be asked before contemplating advice and a course that will leave your client at the disposal of the prosecution and the court in the witness box:
1. Is there anything about this case, the Judge or the client that demands the giving of evidence?
2. Is it more likely than not that the case in mitigation will have been advanced by the time the client leaves the witness box?
3. What are the matters that are to be proved by the evidence of the client is to prove, are these matters in issue?
4. Are the matters to be ventilated by the client?
[a] those of alleged aggravation, which the crown must establish beyond reasonable doubt [and may now do so with your client's assistance].
[b] those of mitigation, which require the defence to establish on the balance of probabilities.
If the matters come within [a], and assuming there has been evidence admitted capable of being proven aggravation, one should consider whether the there is a real prospect of the client's evidence being accepted in whole or in part as raising a reasonable doubt. If in a criminal trial it is a rare case where the defence actually gets stronger in its own case, the same is more abundantly shown in the experience of factual contests on sentence.
Can the matters to be proved by calling the client be proved by other means or through other witnesses?
If the client is called, what is the worst result which might arise from either the evidence in chief or cross-examination - is it worth the risk?
As to these questions; there are cases on the margin between a full time gaol sentence and something milder that can be turned favourably by a client who has attributes deserving of sympathy or capable of putting him or her into an exceptional class .One needs to be harshly realistic in assessing which clients are in fact exceptional, impressive and more capable than not of tilting a marginal case over the line between full time gaol and something more palatable Some judges who will implicitly discourage evidence from the client where it is unlikely to do more than delay the handing down the kind of result that you would consider acceptable . In the face of clear and positive messages and unless one has a considered and different view of the achievable outcome it, is best to bend to these judicial indications. Sometimes you will need to be firm, as only you know whether what the client will say is both different and more favourable than the Judge expects. The difficulty comes in distinguishing a Judge who does not want your client to get in the way of the result you seek from the Judge who needs to be burdened by the reality of your particularly meritorious client.
Order of witnesses: One should call the client first if it is intended that he or she give evidence. Assess the client on the day and, if necessary delay making the decision until the last moment. With some people there seems to be a 'full moon 'factor which converts the contrite and mild person of last week into an aggressive and argumentative clenched fist on the day of sentence. No evidence is preferable to evidence from a dangerously inarticulate, defiant, or otherwise self-damaging client. A lengthy and painful session with the client under the attack from the Crown Prosecutor or the Judge is to be avoided. If your decision not to call the client is contrary to the client's wishes you are, strictly speaking entitled to exercise your forensic judgement to that effect. Rather that have an acrimonious argument it is helpful to explain in detail what you believe will go wrong and give the client the option of ignoring advice on the basis that instructions are signed that he has been warned. In an extreme case it is possible that a client who by both ignoring advice of impending catastrophe and refusing to record instructions in some satisfactory way may have to be represented by another lawyer. In most instances clients seem to be deterred from the self-indulgence of insisting upon giving evidence just to make a point, particularly when one cheerfully produces one's dispassionate opinion of the consequences of such a folly.
Many a potentially successful plea will fail to achieve a favourable result if the client or other witnesses are called to give evidence that only demonstrates that they are uncomprehending of the client's real position. Any conversation in conference with a wife, partner, mother or father who starts with an, " it's not fair' monologue will reveal this and fortify one in a decision not to call that individual. With such witnesses the most appropriate and sensitive response may well be, "thank you, that has been very helpful indeed; I will not need to call you ".
Documents, including reports that make your client's evidence or demeanour more compelling should, if possible be tendered before calling the client, - perhaps with an explanatory observation to the Judge that they "will assist in a fuller understanding" of the evidence that will shortly be given by the client. In evidence, the client should be quickly and clearly directed to the seriousness of the offence. It is helpful that the client be asked to demonstrate awareness of a likely gaol penalty [assuming you have told him, as you should] and it is essential that the client be asked how he or she has reflected upon his or her conduct. This question, one would hope, produces the indispensable expression of contrition. Much evidence called from one's client falls into the category of leaving very little for the prosecution to ask. In this spirit a little pre-emptive cross-examination of one's own client can be judiciously applied without drawing too much attention to it. If your assessment is that the client is not likely to come out of these exercises looking good it is difficult to justify calling him or her.
There is something of a fashion in the writing of offender's letters of apology to the Judge or the victim. These letters are not be dismissed but approached as possibly helpful, particularly when written in what is obviously the client's own perhaps ungrammatical but heart felt words. Counsel should not in my view be closely involved in the drafting of such letters, which are more than not obviously and suspiciously lacking in originality but rarely may assist.
Intended character witnesses should be interviewed by the advocate appearing at least to the extent of verbally confirming the tenor of the anticipated evidence .No witness should be called upon the basis of a written proof alone even if, as should always be the case, the proof has been signed.
One should not be embarrassed if, for instance, three witnesses turn up and none are called because they are adjudged more damaging than beneficial or merely unhelpful and not worth the risk of creating unwanted controversy detracting from the subjective case of the client. As with written references, one should expect from a valuable character witness at least some support for the proposition that the client is indeed contrite.
It is legitimate and wise to warn witnesses only to answer the questions that they are asked and to counsel them against proffering advice to the Judge about what should be done with the client. Do not call a character witness unless you have made a positive determination that the witness's evidence will advance your client's case further than would a good written reference from that witness whose presence in Court can be indicated. When in conference do not simply ask only the 'nice" questions but anticipate those, which are likely to arise in any likely, cross-examination.
Initially, the rule of having a clear idea of desired and feasible destinations is valuable, if only because the occasional judge will ask you what you want and it is preferable to have some idea, rather than be left blithering because you have not yet developed the painfully crafted twenty minute answer.
You need to be clear as to appropriate factual findings you are seeking to establish and the evidence and inferences that support the findings, which you enumerate as being sought and which will sustain the sentence if it is subjected to appellate review. If you submit that there are matters that place the matter in an exceptional class and thereby below the usual range of penalty beware you do not debase the currency of 'exceptional' when what you really mean is 'at the lower end of the range'. An unrealistic submission or one lacking in candour will damage your standing and your client's prospects, if not with the sentencing Judge certainly with the appellate court that reviews the impact of your submissions as reflected in the sentence. Submissions on penalty should, so far as the complexity of the matter allows, be crisp to the point and of assistance. One should firstly try to anticipate the critical remarks, which might come from the Bench touching the undesirable nature of the client's character and the seriousness of the offence. When appropriate, both these matters should be conceded unblushingly and firmly: "Of course your Honour it must be said these are most serious offences and in the ordinary course the presumption must be that my client is looking at gaol-and that indeed is my client's expectation"[if that should be the case make sure it is].
Where the starting point is unavoidably a full time sentence you should be ready to specifically nominate those matters which constitute special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying departure from the requirement that the balance of the term of sentence must not exceed one-third of the non-parole period. This mode of departing from the statutory ratio may result in a shorter time served but in submission it should not be expressed simply as giving the client a shorter non-parole period, although that may be the effect [see R v Phelan (1993) 66 A Crim R 446)]. Special circumstances has been interpreted very widely in R v Moffitt (1990) 20 NSWLR 114. 'Special' does not mean exceptional or necessarily unusual but extends to a whole range of factors, which may justify a longer period of conditional release. The most commonly encountered special circumstances relate to youth and susceptibility to the benefits of long-term supervision, perhaps when the sentence is recognised as being a potential 'turning point 'for the offender.
In discussing the non-parole period do not overlook the process by which the calculation of a total sentence will commence: 'The sentence' is the sum of non-parole period and balance of sentence and it is to that total figure representing an assessment of criminality and objective seriousness that any subtractions for plea, assistance and other factors will be applied. Note also the different regimes for non-parole periods for State and Commonwealth matters: R v Bernier (1998) 102 A Crim R 44 at 49; R v Sweet (2001) 125 A Crim R 341; R v Martinsen [2003] NSWCCA 144.
As a general rule the more appalling the offence the more promptly and comprehensively this concession should be made before moving on. 'Worst cases' as distinct from bad cases are rare indeed and one can at least usually start with the small step forward that appalling though an offence may be it does not fall into the objective assessment of worst case.
It is common now for either the defence or the prosecution to have access to sentencing statistics from the Judicial Commission. These can be helpful and persuasive for a judge seeking to expand a view of feasible sentences beyond the patterns indicated in the Court of Criminal Appeal alone. The latter, of course, do not record matters decided at first instance, which fell outside an apparent range but nonetheless were maintained on their peculiar facts without appeal. One needs to be familiar with the mode of presentation in the statistical material, in particular to be sure that the sheet relied upon relates to the right offence, category and age of offender, with important variables such as guilty or not got plea, number of counts or Form 1 matters etc. also being fed into the classification. Beware that some of the statistical sheets will relate to a very small and perhaps statistically insignificant number or period over which data has been collected. In summary, be wary of too much reliance being placed on the statistical material, either by you, the prosecution or the Judge. The statistical resource is a sometimes-helpful tool, depending on the factors noted above, but it is not holy writ.
Generally, while bald statistics are of limited use and must be interpreted cautiously, they can still provide general information as to sentence range and assist in ensuring consistency in sentencing. Often greater guidance can be obtained from a survey of cases than statistics as cases enable some detail of specific circumstances to be set out for purposes of comparison: see Bloomfield (1998) 44 NSWLR 734 at 739. As put by Spigelman CJ in ' Consistency and sentencing' (2008) 82 ALJ 450:
It is important not to confuse the range of appropriate sentences for an individual case, which is a matter that is frequently the subject of submissions in a court of criminal appeal, on the one hand, with the range that the statistical database shows has been appropriate in the past for all the different kinds of cases that have arisen, on the other hand. Nevertheless, statistics are capable of assisting judges in the difficult task of applying the principle of consistency Such statistics may identify a sentencing pattern which accommodates differences in the individual circumstances of an offence and of an offender upon which the judge has to adjudicate. I have attempted to identify the utility of statistics on the basis of the case law in which they have been deployed, as follows:
Having outlined the thrust of one's submissions, dealt with the objective facts and identifies realistically the appropriate level of gravity, one may sometimes be able safely indicate some aspect of the client's conduct which merits a finding that the conduct was not as serious as may otherwise have been the case.
Submissions on the facts should avoid over-reach or the creation of an unnecessary controversy or disputes, which, implicit in the predicament of a prisoner for sentence, you may not win. Avoid as a great peril an argument that ends with the Crown calling a victim for you to confront, cross examine and likely elevate their suffering thereby to a higher status.
If there are matters said to aggravate the offence you must have a clear idea whether they are accepted or disputed. If such matters are disputed the resolution of the dispute involves the prosecution being able to satisfy the bench beyond reasonable doubt: see R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 above. In practice that may entail your client considering whether it is worth his or her while giving evidence or requiring a victim to give evidence. The scale of the aggravation needs to considered and weighed against the scale of the difficulties a prolonged disputed facts hearing may pose for the survival of contrition as a factor in the Judge's final assessment of your client .The thorny issue of disputed facts is not to be ignored and in the ultimate it is for the client to make an informed decision as to how far a particular dispute should be pursued. Often you may advise that in the whole matter the issue is of little moment and out of proportion to the damage caused in the process of its resolution by a process that can, in extreme instances take days. The client who decides not to pursue a disputed issue should understand that by so doing the particular matter is conceded as being a relevant factor on sentence. Similar considerations arise when matters mitigating are subject to resistance by the prosecution, although in this instance the matters to be relied upon by the defence require proof on the civil onus only.
When making submissions such as:
You may be called upon to answer prosecution submissions that a particular sentencing range is appropriate. In meeting such submissions you should, if at all possible, avoid judicial invitations to nominate specific periods of imprisonment as being appropriate, with the exception that you may make comparisons with suggested appellate guideline ranges as being appropriate. If you are very senior and very experienced and a custodial sentence is in fact totally unavoidable you may perform a valuable function by assisting a judge who seeks and welcomes assistance in more precise terms.
For the most part getting into the area of specific figures is fraught with dangers, not the least of them being quoting too high, with distressing and embarrassing consequences for yourself or your client [depending on whether the Judge agrees with you or not].
In most cases the facts occupy the lesser part of submissions and real disputes are ironed out without the peril of the matter requiring lengthy adjournment for hours of evidence and argument. If you insist on quoting authorities ask yourself if they in fact say anything novel or informative? Do they establish a principle not apparent to any judge and do the legal principles cited fit your facts? If the prosecutor, as is common now, hands up a range of authorities calmly examine them and see that they do in fact fit both the offence and the facts. Some times you will find they do not or are related to a more aggravated for or the offence, for instance armed robbery or robbery with wounding rather than the robbery you are dealing with. Where one is faced with a possibility that non full time custody being is within an appropriate range that also presumptively extends to full time gaol; understand that an individual judge may still have resort to the more lenient option although the Court of Criminal Appeal may have characterised a particular cases of a similar type as not deserving a reduction on an appeal against severity. It is your function to assist the judge, not just to be lenient but also to support his sentence with findings of fact supporting an exercise of the sentencing discretion, which is less likely to fall victim to a Crown Appeal. Where there is no doubt whatever that full time gaol will follow the sooner one disposes of this reality the more attention your detailed submissions as to the non parole period will receive.
Communicating with the bench: On occasion you may feel that a particular judge makes a structured plea very difficult because the Judge insists on initiating a series of sometimes tendentious or apparently obtuse interchanges between the bench and counsel. Whilst this might put one off one's pitch, it can be very helpful as an indication of what the Judge is thinking and one must simply adapt to this mode of procedure. If the exercise degenerates into a competition involving at least one rampant ego, you are bound to lose any such skirmish and your client's interests will be impeded. For an advocate firmness is sometimes appropriate, as is courage, in making a submission. One should, however, abandon any tendency confuse courage with aggression. Counter-attacking a difficult judge with the tone more appropriate to that applied to a discredited witness is simply stupid and not courageous. Unlike the trial situation where a jury is the usual object of your persuasive powers the sentencing judge is the tribunal of fact here and, on reflection, one would no more insult that tribunal than one would aggressively attack a juror for asking a difficult question. Just as often as one might face disaster from a mishandled exchange with the bench one may have been steered towards a safer haven after a brief interchange that reveals the Judge's essential view of the case at an early stage. This may mean that you swiftly identify a more favourable judicial view than might have been found if one had not insisted on painstakingly ventilating all the sordid horrors of the case. The key is to listen when the Judge intervenes and to respond carefully. If a Judge says 'I am inclined to impose a non custodial penalty " or something that amounts to the same indication, it is time to exercise that great art of the advocate, decide whether there is any good reason you should not sit down!
At the close of submissions, one's task is not finished, one should be prepared with such information as: how much balance of parole is owing in appropriate cases, the precise mode and duration of custody to date, the powers and options available, or other details which may assist the Judge in formulating any order to be made.
Listen carefully to the mathematics constituting the sentence and be ready to assist courteously if the Judge has made a technical or calculation error in affecting the implementation of the intended order. Do not confuse this with any inappropriate canvassing the sentence.
You should be aware of the effect of the slip-rule, as contained in s.43 of the Crimes (Sentencing Procedure) Act 1999 and in the Criminal Procedure Act 1986 prior to 3 April, 2000.] You should encourage the judge to correct what are plainly slips, as opposed to deliberate decisions with which you disagree. The latter, as to which there may be an issue of error of law in a potential appeal, should not be canvassed once the judge has settled on a view. If error is merely a relatively minor one of fact, particularly one upon which you and your opponent agree is a simple misunderstanding, you should bring it to the judge's notice. It is neither clever advocacy nor ultimately advantageous on appeal to have deliberately allowed slips or minor errors to stand, if the opportunity present to be heard and correct them at first instance. This is a quite different situation to that in which you have argued your case and the judge has arrived at a different view.
Sometimes a judge will ask both counsel if he or she will fall into error if a particular course is taken. One should not, of course, be hostage to your opponent's view merely because it would be preferable if the prosecutor agreed with a course that you see as lenient, but within the judge's discretion. Equally, you should not urge an outcome that you know from experience and an understanding of principle to be patently in error. This is particularly so where a particular outcome is opposed by the Crown. The flawed outcome in such a situation is almost certain to be overturned on a Crown Appeal and replaced by an outcome as to which counsel on the appeal may have little influence. By way of example, if the lines of authority make it plain that the best sustainable result at first instance should be periodic detention and the judge is contemplating an objectively inadequate bond, you should contemplate the possibility that the Court of Criminal Appeal might simply select full time imprisonment as its preferred option, notwithstanding principles of moderation in re-sentencing. You may feel inhibited in actually suggesting that your client receives a custodial penalty (albeit periodic) but you should not actively argue with the Crown if the effect of his or her submissions more properly steers the judge towards both the best and most secure outcome. The usual way of avoiding embarrassment is to have a formula of words that neither urges nor concedes but perhaps simply indicates that the state of authority indicates what the judge is able to do within an allowable exercise of discretion.
Great distress can be avoided if you have well warned a client likely to receive a custodial sentence that the crucial words to be pronounced by the judge are those related to the non parole period, most particularly "to be released on" or 'to be eligible for release on'. It may be helpful to warn the client that the orders can be complex and, if the judge does not close with a summary of the effective or aggregate of all sentences and custody to be served, you should certainly explain it in detail in the cells.
No advocate of worth should let a client simply disappear into the cells or the prison van without a clear explanation of what a sentence means in terms of actual time to be served, etc. Similarly, a client who has been given the benefit of a bond, community service order or weekend detention should have that order explained by Counsel rather than leaving it to a counter clerk at the registry. Failure as to the latter can have serious consequences, particularly where the client slips into a breach through possible ignorance of conditions.
Decide if you are really in a position to give considered advice on appeal, as distinct from the bare facts of appeal rights. Sometimes a short period of contemplation and research benefits all, rather than plunging directly from the post sentence gloom into the uncertainties of appellate remedies. The likelihood in most instances is that any contemplated appeal will be subject to a requirement that counsel other than the counsel of first instance advises the Legal Aid Commission whether there is a reasonable prospect of success. To that end your most valuable contribution will be in the form of an Appeal Report. Sometimes such reports read as a fairly emotional extension of the advocacy already expended in the Court below. It is of greater assistance if the report is focussed on what happened and what were the errors, if any (whether patent, or latent in simply an excessive outcome).
If an appeal is to being considered by the client, whether or not to be advised by you, it will require prompt but careful consideration that will take some time. The client needs to know that this is not an over-night process, even in the rare case where manifest error is patently gross and well outside any range likely to be accepted by an appellate court. Whatever the outcome of any discussion of an appeal, it is as well to make the client aware that the Notice of Intention to Appeal, which itself has a currency of six months, will still have to be filed within 28 days of sentence to be strictly 'in time'. Appeal forms can be obtained at the gaol and the client can, at least, initiate the process without need of a lawyer until aid is confirmed and submissions are to be filed. If your client is legally aided one should also be aware and tell the client that a merit test applies to the granting of further aid for an appeal and the operative standard is 'a reasonable prospect of success.' It is rare that one can confidently and immediately say that a particular matter has sound appeal prospects and it is no kindness to express instant outrage followed by later advice that an appeal would be hopeless and not likely to be assessed as having a 'reasonable prospect of success'.
Apart from being civil and humane, these "after sales" services are conducive of an informed, if not satisfied, client. At all stages of the exercise it is a fair guide to one's attitude and conduct to always remember that for the client a day with a guilty plea in prospect is probably one of the most traumatic days in his or her life. The purpose of any post sentence conference should be to inform, not to either justify your own position or to seek expressions of gratitude. A little tact and patience in response to these hard realities does not go astray.
15 Nov 2024