Queensland Courts in Australia - Case Study Example

Queensland Courts in Australia routinely provide sentencing discounts to defendants who plead guilty to offences. The current practice in Queensland is that a guilty plea will attract a discount of approximately a third of the sentence, particularly when an offender enters or indicates the plea at an early stage of the proceedings. This paper examines the reasons for and against such discounts. It argues that suitable rationalization is minimal in these discounts. It further argues that the subsistence of such a discount can grant an unsuitable incentive to enter a guilty plea for offenders who may otherwise have had a legitimate reason for exercising their right to trial. It also determines whether such discounts in any way create a penalty for offenders who plead not guilty thus exercising their right to trial. Introduction A sentencing discount refers to a particular reduction that is normally quantifiable and relating to a discrete factor and which the court apply after taking all other considerations of sentencing into account. They relate to post-offence conduct on offender’s part. An individual who has committed a criminal offense has some options in responding to accusations made against him or her. The rules of criminal procedure in a court of law allow an offender to enter a plea of guilty or not guilty and if the offender fails to enter any plea, the court enters a plea of not guilty on for the offender and then begins the trial (Howie, 2008). There has been heavy contest on the levels, aspects and the extent of discounting sentences for defendants who plead guilty. In the recent years, the Australia high court has also weighed in on the debate. It is a statutory requirement in Queensland that the court should take into account a guilty plea and if the court fails to reduce a sentence; it must state its reasons. However, if it reduces the sentence, it is not obliged to state what the definite reduction in sentence was. Actually, even without remorse, the court holds that there should be reduction in sentence. It has also been a requirement for a court to point out the way in which it is reducing a sentence, if it is reducing it as a following the plea. It may achieve a reduction by recommending an early parole. In determining sentence for the offence, a fact of unaccepted offer to plead guilty is relevant (Freiberg, 2006). Following the concern of the discrimination that two elemental notions in sentencing engendered, justices Callinan, Gaudron and Gummow had a joint judgment. They observed the well-established notion that if an offender makes a guilty plea, the court should consider it in extenuating his or her sentence. However, they later noted that the notion that a court cannot penalize a convicted individual for having maintained on his or her right to contest the accusations qualified the aforementioned principle (Rozenes, 1996). The distinction between failing to penalize a convict for not pleading guilty and allowing a discount in sentencing following a guilty plea is not without its intricacies. If the difference is to appear as non-discriminatory, the rationale may need some modification in its appearance. In Siganto versus The Queen, the high court repeated the rationale that courts normally relied upon in justifying mitigation. Here, justice Gleeson and his colleagues stated that the court would ordinarily consider a guilty plea in mitigation, primarily due to its representation of penitence on the offender’s part and then on the pragmatic ground that the plea spared the community the contested trial expense (Shaw, 2002). In 2002, the high court re-examined the subject of sentencing discounts in Cameron versus The Queen. In this, the court put into consideration the system of fast track plea in use in Western Australia. The main ruling of Justice Gummow and his colleagues acknowledged that the court could afford discounts based on remorse and the value of usefulness or utilitarian of the plea. However, they had a concern that sentence discounts must not penalize individuals convicted at trial because of contesting their charges unintentionally. They therefore stated that the discount provision for a guilty plea must not either be or seem to be a judicial dissuasion to an accused individual against applying rights to silence that the law confers, or the right to set the trial to the criminal accusations proof (Payne, 2006). In the Wong versus The Queen in 2001, Justices Gummow, Hayne and Gaudron censured of this structured-two stage approach to discounting. They put forward that arithmetical method is probable to yield errors and that it departs from the principles of basic sentencing. They therefore recommended that sentencing should be a consequence of intrinsic synthesis where the jury ought to consider all factors that are relevant to achieve a single result, which comprises of them all. Normally, the court views the guilty plea as evidence of remorse in itself, though contrition alone is not necessarily a justifying factor. For instance, a drug addict may have remorse for a particular drug-related offense but he or she lack the required self-control to act on the causation of his or her criminal conduct. In such a scenario, the argument is that even though the defendant regrets his or her criminal act, the court should not reduce the sentence for the offender due to lack of finding of the possibility of rehabilitation. Miller explains that the contending public policies of supporting guilty pleas on one hand and yet defending the public from a particular offender on the other as evident in some cases demands that public protection be paramount(Payne, 2006). In R versus Thomson and Houlton, a court of criminal appeal’s five-judge bench evaluated the circumstances under which the court should apply a sentencing discount following a guilty plea. The court set up a guideline and determined that it should be giving a discrete discount to reflect the useful value of the plea. It did not base the discount upon contrition and hence was either unlinked with the prosecution case strength or else the court did not require the relief of witnesses to give evidence. The discount was to be about twenty to twenty five per cent, the quantity of discount being determined depending on the timing of the plea and the intricacy of the prosecution case. Nevertheless, the court affirmed that the determination of the amount of discount rests in the jury’s exercise of discretion. It also affirmed that an offender had no right whatsoever to any given discount. To date, courts have applied this guideline despite later high court decisions and it applies the offender’s intentions of facilitating the administration justice or otherwise (Howie, 2008). In Cameron, the judgment of justice Kirby noted two contentious issues. The first issue related to the intelligibility of the discount that the sentencing judge awarded. While acknowledging the possible drawbacks involved in the approach of structured sentencing, he asserted that where a discount for a given deliberation relevant to sentencing is fitting, express identification of the fact and the measure of discount is preferable. Otherwise, there would be a risk of the impossibility of knowing whether the court applied proper principles of sentencing due to lack of effectively concealed transparency by judicial instinct (Payne, 2006). The other issue that Kirby drew attention to is graded sentencing discounts in the earliest reasonable opportunity context. Following a defendant’s early guilty plea at the earliest reasonable opportunity, the court maximizes discounts afforded upon the utilitarian value basis of the early plea. In principle, the earliest reasonable opportunity is the point in time when the defendant managed to concur to the evidence that the prosecution presented and pleaded guilty to the accusations. The magnitude of the utilitarian benefit that the court and the entire community receive is dependent on the time of the guilty plea. The earlier the defendant makes the guilty plea, the greater is this benefit. Difficulty comes in when the opportunity to make the guilty plea is not at the earliest reasonable time any longer (Irwin, 2006). The court cannot offer an offender a full utilitarian discount value if the he or she fails to make a guilty plea until late in the case proceedings, regardless of whatever reason. This is because of the defendant’s failure to save the time and cost the court utilized preparing for a trial, considering that the court offers discount as a reward for saving the aforementioned time and cost. If the defendant delays in making a guilty plea, it follows that the plea’s utilitarian value is less. Consequently, it is obligatory for the reward to be less. It is also important to note that the question of whether a guilty plea came at the first reasonable opportunity, which the magistrates should answer realistically and rationally, determines the amount of discount that a particular offender receives (Howie, 2008). A good example is Cameron versus The Queen. Its stipulation for providing discounts in a sentence where the defendant pleads guilty fits well in the interpretation of s 13 of the PSA. In congruence with this section where it states that a court that is reducing a sentence may consider the time of the guilty plea or its indication, the court should refer to the time when it might have realistically expected a guilty plea indication (Colvin, 2003). They further had suggestions that the court could achieve this by observing the early plea pragmatic value as an indication of the willingness of the offender to facilitate justice course. When a defendant pleads guilty, he or she recognizes and admits that what will follow is a conviction without trial. By making the guilty plea, he or she therefore demonstrates willingness to facilitate the course of justice in the above-described sense, irrespective of diverse competing emotions that might be accompanying the plea (Colvin, 2003). Alleviation necessitates that the underlying principle for the rule, as long as it depends on aspects other that acceptance of responsibility and contrition, be articulated in terms of readiness to facilitate the course of justice as well as on the basis that the plea has spared the society the contested hearing expense. Colvin asserts that interpretation of willingness or readiness to facilitate the course of justice is vital for guilty pleas’ future. He says that one cannot pragmatically contend that contrition or acceptance of responsibility on the part of an offender drives many guilty pleas. Commenting on the Queensland case, Cameron versus The Queen, he doubts the possibility of a guilty plea being evidence of remorse. He further argues that as it is common in most cases, the guilty plea is evidence of the offender’s expectation, mostly due to legal advice, that pleading guilty would yield a reduced sentence. As it appeared to Colvin, Cameron itself is a good example where the lower courts failed to give a full discount based on the low objective savings level whereas the high court approved it based on the expression of willingness to assist fully in the course of justice by the plea at the earliest reasonable opportunity. Diverse views on moral justification for offering discounts to offenders who plead guilty do not necessarily result into diverse suppositions concerning to whom discounts are entitled (Colvin, 2003). According to Colvin, hardly would it have sufficed that the defendant in Cameron made the guilty plea at the first reasonable opportunity if there was a condition of affirmative assistance to the prosecution for the defendant to receive a discount. If this were the case, the court would have needed evidence of better cooperation from the defendant. Colvin concludes that the fact that the court did not require proof of greater cooperation is an implication that willingness to assist the course of justice is the same as willingness to help by having no intentions to hamper the prosecution. A guilty plea reflects additional considerations on top of saving the public the expense and time of a trial which include relieving the defendant from giving evidence in an environment that is stressful and demonstrating that the offender admit criminal responsibility for his or her conduct. This acts as some evidence of contrition therefore suggesting good rehabilitation prospects. Although it might reflect merely on the offender’s part in seeking to alleviate the sentences he or she would serve, his or her post-offending conduct is the best evidence for contrition, reform and rehabilitation prospectus. Hence, irrespective of any other consideration founded upon distinctive public policy, it is generally extenuating (Howie, 2008). Traditionally, the explanation for truth was in terms of its association with reality or in terms or coherence. Pragmatism now holds that the way to truth is the process of verification. Pragmatism lays emphasis on the realistic function of knowledge as an instrument for acclimatizing to reality and for taking control over it. Pragmatism also entails interpretation of ideas, not as images of reality but as instruments and plans of action. Particularly, it interprets ideas as proposals and expectancy of possible conduct, assumptions or predictions of the results of a given action or ways of behaviour organization (Mackenzie, 2007). Certainly, the court highly regards the pragmatic value that a guilty plea offers. This is evident in the action of two of the state superior courts, which have sought to discriminate Cameron if, from the discretion of sentencing, it seeks to eliminate the pragmatic considerations. Justice Kirby took into account whether it was dissimilar to the legal equality constitutional principal implied to treat defendants who make a guilty plea to an offense in a different way from those who make a plea of not guilty. According to Kirby, it would be sensible for an offender who acknowledged his or her guilty to receive a sentencing discount (Shaw, 2002). The high court explicated the situation in Cameron v R15 by verifying that a court offers the reward of discount to the defendant in recognition of the willingness of the defendant to assist in the course of justice but not because of saving the community from undergoing the cost of contested hearing. In respect of the mitigation rationale, the justices observed that the factual institution for the guilty plea discount is acceptance that it is in the interest of the public to provide the discount, but not the reward for contrition or the consequences of plea that the defendant anticipate. According to these justices, contrition was not the origin for, nor is it a prerequisite to discounting a sentence for a guilty plea. Instead, it is a representative of icing on the cake, that is, something added to make a thing that was good to become even better. Their Honour’s preference for considerations of public interest was an endorsement of the pragmatic grounds that the judgement of majority had previously denounced (Bagaric &Brebner, 2002) In conclusion and as stated by the Justice, the major characteristics of interest of the public, which are relevant to a guilty plea discount, are purely utilitarian. They comprise the fact that a guilty plea spares the community the inconveniences and cost of the offender’s trial, which otherwise, it would have undertaken. By the virtue of the judgement of the majority, all must perceive a guilty plea discount from the offender’s point of view as opposed to the community’s viewpoint, regardless of any aspect of remorse and admittance of responsibility. More importantly, pragmatic benefits engendered by a guilty plea may fail to be exclusively reliable any longer as the basis by which a court may make mitigation, irrespective of its acceptance and well support and despite justice Kirby having insisted resolutely (Shaw, 2002). References Bagaric, M., Brebner, J. (2002) The solution to the dilemma presented by the guilty plea discount: the qualified guilty plea-I'm pleading guilty only because of the discount...", International Journal of the Sociology of Law, Vol 30, No 1, pp. 51-74, Elsevier Science Ltd, London, England, Available at: http://www.julieclarke.info/publications/2002guiltyplea.pdf, (Accessed on 23/04/09). Bagaric, M. and Brebner, J. (2002) The Guilty plea discount: Why and how much: An analysis of Cameron, Criminal Law News Victoria, Vol 2, No 3, pp. 17-20, Reed International Books Australia Pty Ltd, Victoria. Colvin, E. (2003) Sentencing Principles in the High Court and the PSA, QUT Law & Justice Journal Vol 3 No 1 2003, Available at: http://www.law.qut.edu.au/ljj/editions/v3n1/pdf/colvin.pdf , (Accessed: 23/04/09). Freiberg, A. (2006) Twenty years of changes in the sentencing environment and courts’, at the Conference on Sentencing: Principles, Perspectives & Possibilities held 10–12 February, Canberra Howie, R. (2008) Sentencing Discounts – Are they worth the effort?, NSW Supreme Court, A paper presented at the Sentencing Conference 2008 of the National Judicial College of Australia and the Australian Nation University on 10 February 2008 Irwin, M.P. (2006) 'Effective plea making from a Magistrate's perspective' (Speech delivered at the Queensland Law Society Pleas of Guilty Workshop, Law Society House, Brisbane, 15 May 2006), Available at: http://archive.sclqld.org.au/judgepub/irwin150506.pdf (Accessed: 23/04/09). Mackenzie, G. (2007), The guilty plea discount. Southern Cross University Law Review, 11 . pp. 205-223, Available at: http://eprints.usq.edu.au/3979/2/Mackenzie_2007_SCULR.pdf , (Accessed on 23/04/09). Miller, R.N, QC, Pleading Guilty: Why, How and When, Director of Public Prosecutions, Queensland. Payne, J. (2007) Criminal trial delays in Australia: trial-listing outcomes, Australian Institute of Criminology, Research and Public Policy Series, No. 74 Review of the Civil and criminal justice system in Queensland, Qld government: Department of Justice and Attorney-General, Available at: http://www.justice.qld.gov.au/files/AboutUs/Review_of_the_Civil_and_Criminal_Justice_System_-_Terms_of_Reference.pdf , (Accessed: 23/04/09). Rozenes, M (1996) Who needs a fair trial, Keynote address to the Sixth International Criminal Law Congress, Melbourne, 9-13 October. Shaw, J. (2002) Case Note: Cameron v The Queen, QUT Law & Justice Journal Vol 2 No 2 2002. Legislation: Penalties and Sentences Act 1992 (Qld) Read More