Plea bargaining – what’s the big deal?

I wonder how many readers saw last night’s ABC Four Corners program and, like me, were depressed if not horrified by the apparent degradation of the US criminal justice system by an extreme version of “plea bargaining”, where not only do prosecutors and defence lawyers bargain over a reduced sentence if an accused person pleads guilty (sometimes to a lesser offence), but the judge also becomes actively involved in the process. Sometimes the judge places extreme coercive pressure on defendants (usually in the judge’s private chambers) to plead guilty, by threatening to “throw the book” at the accused if he persists in a not guilty plea and is subsequently found guilty by a jury.

The discrepancy between the sentence an accused person may expect if they plead guilty, and what they’ll get if they exercise their right to defend themselves, is sometimes very great: two or three years imprisonment versus 20 or 30. In those circumstances the pressure on an innocent person nevertheless to plead guilty is extreme, as Four Corners (actually an American PBS network documentary) graphically illustrated.

Fortunately, although plea bargaining does take place in Australia, the extremes of judicial conduct and blatant unfairness shown on Four Corners seldom if ever occur here. The sort of pressure the fat bald judge exerted in the PBS doco would be judicial misconduct in Australia, and there is a general prohibition on any form of plea bargaining taking place in a judge’s private chambers (absent specific statutory authority).

A judge will not give advance consent to a bargain entered into between prosecution and defence, and cannot be bound by such a bargain (unlike in the US, where it has been said that there is a constitutional right to enforcement of a plea bargain!). Hence, although a prosecutor may promise not to press for a heavy sentence, may allow a guilty plea to lesser charges and withdraw more serious ones that might have succeeded, and may (arguably) agree to present to the court a version of the facts less unfavourable to the accused than might otherwise have been the case; a prosecutor cannot promise an accused any particular discount on sentence in return for a guilty plea. It’s up to the judge on the day.

Moreover, as far as I’m aware, typically sentencing “discounts” in Australia for a guilty plea are around 30-40% of what would otherwise be the head sentence and non-parole period. Clearly that creates some degree of incentive to plead guilty, but not to an extent that an innocent person would generally be tempted to plead guilty to reduce risk. And the non-involvement of the judge in the bargaining/coercion process also helps ensure that the practice in Australia remains within bounds I think most people would regard as reasonable.

For those interested in more detail on how plea baragaining works in Australia, here is a link to an article by Paul Gerber from QUT Law & Justice Journal (2003). On the off-chance that there are any readers even more interested, the best (although slightly dated) detailed survey of the cases and principles I can find is in the judgment of Chief Justice Asche of the NT Supreme Court in a 1989 decision R v Jabaltjari. Asche CJ surveys both academic opinion and judicial dicta in Australia and overseas. I’ve taken the liberty of extracting the relevant (rather long) passage of His Honour’s judgment:

The Significance of the Plea of Guilty

19. In the course of his submissions the learned Solicitor-General invited this court to give guidance on what, if any, discount should be given from any otherwise proper sentence for a plea of guilty. If he is asking that the Court establish quantitative guidelines to be applied as some sort of formula in every case I would not be disposed to do so. As was said by McInerney and Crockett JJ. in R v Gray (1977) VR 225 at 232:

“The sentencing judge possesses a discretion of great width. It would be improper to seek to define or prescribe the area in which that discretion is to operate.

It is for the judge to interpret the quality and implications of the plea.”

20. But the question that the learned Solicitor-General was posing was more aligned to the significance which should be given to a plea of guilty per se i.e., in the absence of anything which the Court may take as a sign of remorse or contrition.

21. It is beyond question that contrition or remorse are factors which will usually operate in the accused’s favour; but not always. The present of remorse may be no guarantee that the prisoner will not repeat his conduct; alternatively the factor of remorse may, in some case, be outweighed by other factors such as the enormity of the crime or the need for retribution in the sense adopted by Thomas – “The English Sentencing System” – 3rd Edition – p 202 of “giving wrongdoers their deserts”.

22. But there are many cases in which the plea is made not necessarily out of contrition or remorse. There has been much discussion in Australia about this question and the various decided cases are somewhat in the balance. The matter has been discussed at length in Courts of Criminal Appeal in New South Wales, Victoria, South Australia and Queensland. The best starting point is R v Shannon (1979) 21 SASR 442 because there a Full Bench of five Judges was assembled for the express purposes of giving a definitive ruling. (See pp 242-3). The leading judgment was delivered by King C.J. His conclusions were supported by Mohr J. Wells J., with whom Zelling J. agreed, also announced his support for the conclusions of the learned Chief Justice (see p 445), but nevertheless set forward his own conclusions which, on a careful analysis, may not be precisely on all fours with what was said by the learned Chief Justice. Cox J. was in dissent on certain basic issues.

23. At p 453 King C.J. said:-

“In my opinion this court should now lay down the following propositions –
(1) A plea of guilty may be taken into account in mitigation of sentence where –
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency, and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve
(2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
(3) In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.
(4) In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.
(5) The above propositions are not to be taken as weakening in any way the principle that there may be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.”

24. The basis for proposition (4) and 1(b) (insofar as it correlates with (4)), is set out more fully in His Honour’s reasons at pp 447 to 450. His Honour refers to R v Gray and draws from it the interpretation that the case “condemns the proposition that a judge must make a reduction in the sentence otherwise appropriate by reason of a plea of guilty but affirms that he may do so. It condemns the proposition that a plea of guilty is a mitigating factor only insofar as it is evidence of genuine remorse and affirms that a reduction is justified by facts other than remorse “that operate in the public interest”, such as saving a prosecutrix the ordeal of giving evidence and saving the State a lengthy and expensive trial”.

25. One would have no quarrel in taking into account the factor of saving the prosecutrix the ordeal of giving evidence. But I would not be prepared to take into account, in the accused’s favour, the mere fact that his plea saved the expense of a public trial. Their Honours McInerney and Crockett JJ. in R v Gray did not, in my view, say this so baldly; although they seem, with respect, to have been a little ambiguous. At p 232 they say:

“There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But, having been detected, he has had to do the best he can for himself. Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves a measure of public utility in the belief that his own ultimate interest is best served by doing so. The judge may (not shall) take such circumstance into account in the accused’s favour. If such action be tainted over much by self-interest it probably will not avail the accused. Professor Sir Rupert Cross in his book The English Sentencing System (1971), p 153 suggests that it is in the interest of the present judicial system that provided they are in fact guilty, accused persons should plead guilty. No doubt great cost to the community in time, convenience and money is thereby saved. However expedient this may be from the point of view of the executive, it is not a matter which requires the sentencing judge to reduce the sentence below that which he otherwise believes to be proper in the circumstances.”

26. Just how the Court can determine whether a plea is or is not “tainted over much by self interest” would, in my respectful view, be difficult to establish, where the plea is not to be regarded as evidencing remorse. There would seem to be a heavy element of self interest in any such situation.

27. King C.J. also referred to a passage in “Cross – The English Sentencing System”, 2nd Edition (1975) at p 105 and I note that what is said there includes this passage:

“From time to time suggestions are made that our system of criminal trials would break down if everyone charged with an offence in the Crown court would plead not guilty, and, in any event, the beneficial effect of saving the expense and inconvenience of a protracted and unnecessary trial is something which cannot be ignored. Provided it is clearly understood to refer only to those who are guilty, moderate encouragement to plead is, as the Court of Appeal put it in de Haan, “clearly in the public interest.”

King C.J. comments on this passage at p 448 in Shannon:

“The public interest in saving the expense of trial has been increased by the pressures on the legal aid system. The resources available for legal aid are severely strained by the number and length of criminal trials. In many cases these trials and the consequent depletion of legal aid funds are brought about by guilty persons contesting their guilt by means of false stories. The volume of criminal business has placed the court system under stress and has resulted in unfortunate delays in bringing accused persons to trial. Congestion is greatly contributed to by offenders who put forward false stories and make use of legal aid in an effort to escape conviction. The growth in the importance of these factors points, in my opinion, to the desirability of providing some encouragement to guilty persons to admit their guilt.”

With respect I would agree with the comments made by Cox J. in Shannon. He was of the view that “the notion that a defendant should, or may, gain credit from a plea of guilty merely because he will thereby be saving the authorities the trouble and expense of a trial and relieving some pressure on the Court’s time”, ran contrary to directions previously propounded by the South Australian Courts in Harris (1967) SASR 316; Tiddy (1969) SASR 328; and Rowland (1971) SASR 392. Cox J. then observed (at p 457 in Shannon),

“Two principles relevant to this subject are well established. First, a convicted person is not to be given a longer sentence merely because he pleaded not guilty. There are sound policy reasons for that rule, and no one suggests that it should be disturbed. Secondly, the court may take into account contrition or remorse shown by a defendant and manifested, perhaps, by his plea of guilty. To take that principle further, on grounds of sheer expediency, is, in my opinion, undesirable. No doubt it would be convenient, and save money, if all those who are guilty were to say so. However, the considerations relevant to the question of the proper punishment of an offender do not include matters which have nothing to do with the nature or effect of his offence, or the character or antecedents or disposition of the offender, but relate solely to the machinery by which his offence is tried.”

28. Wells J. (with whom Zelling J. agreed) announced his support for the conclusions of the Chief Justice. Nevertheless (if I may say so with respect) it seems to be a somewhat guarded support, in the light of his own summary of his own views which appears at pp 454-5. Furthermore, His Honour Wells J. goes on to make this comment with respect to proposition 1(b) of King C.J.’s summary:-

“It may, however, be useful to emphasise with respect of sub-par. (b) of par. 1 of those conclusions, that the willingness referred to that sub-paragraph may be permitted to have a mitigating effect, not where it stands in isolation, but only where, in all the circumstances in which it is found, to give it that effect would advance the public purpose or purposes that the sentencing judge is seeking to achieve.” (Emphasis added).

His Honour’s reference to “public purposes” seem equated (p 455) to the “public purposes” which His Honour had previously discussed in an earlier case of Kear (1978) 2 Crim LJ 40. In that case, however, His Honour was discussing no more than the classical philosophies of punishment, namely deterrence, prevention, rehabilitation and retribution. If His Honour is rejecting any mitigatory effect of the plea in isolation it would be difficult, in my respectful opinion, to fit it into one or more of those categories in the absence of contrition. Furthermore, when His Honour says, at p 455, that, “A plea of guilty traditionally is taken into account and prima facie should incline a judge to look for grounds for leniency”, I take him as referring to grounds for leniency vis-a-vis the prisoner rather than some more generalised administrative advantages. I do not therefore (and again with great respect) understand him to be fully adopting paragraph 4 of King C.J.’s propositions.

29. Not only in South Australia but in Queensland statements have been made to the effect that a guilty plea may justify mitigation on the basis that public cost has been saved. For instance, in R v Pickett (1986) 2 QdR 441 at p 444 de Jersey J. says:-

“For my part, I consider it important, with the increasing length, complexity and cost to the public of criminal trials, that guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time.”

30. The matter was discussed by the Queensland Court of Criminal Appeal in R v Harmon (1989) 1 Qd R 414, when their Honours commented on certain remarks of the trial Judge in that case. Those remarks (which are set out in p 417) were as follows:-

“My concern arises from the following factors. Once it is realised that a person who pleads guilty will be more leniently treated than one who unsuccessfully pleads not guilty, an accused person will know that he faces more severe punishment upon conviction on a not guilty plea than on a guilty plea. It is no answer to say that no-one gets any more but some get less. It is the contrast between the two, and the existence of a relativity, designed to provide an incentive to plead guilty, that creates a danger. If the difference becomes sufficiently marked some people who do not know whether they are guilty or not will end up pleading guilty.”

31. In that case the trial Judge said that he did not propose to make any discount for what had been described as a “timely plea of guilty”. He observed that he did not think that the accused was remorseful in the true sense.

32. The appellant appealed against severity of sentence. The Court of Criminal Appeal held that the learned trial Judge could not be shown to have wrongly applied his discretion and dismissed the appeal. However de Jersey J., with whom McPherson J. agreed, took issue particularly with the trial Judge’s comment that “there is certainly a growing view that an identifiable discount ought to be allowed for an early plea of guilty”. To that His Honour de Jersey J. commented:

” To my knowledge there is no trend in this State to allow or specify an ‘identifiable discount’ in respect of such matters. That is not to say that such features as early pleas of guilty are not generally recognised as being relevant to the sentencing process, and in an appropriate case, as justifying moderation for reasons such as those discussed in Pickett. I consider however that the concept of identifiable discounts is wholly inappropriate.”

33. While, de Jersey J., therefore, rejects the view that there should be some identifiable discount he otherwise adheres to the view he had stated in Pickett, and he had the support of McPherson J. in that respect. Andrews C.J. was somewhat more circumspect. At p 419 he says:-

“I would add that I can see no reason why sentencing authorities should not emphasize that there is relevance in timely co-operation by persons guilty of offences provided that care in expression is taken to ensure the understanding that there is no system of discounting whether precise or otherwise in force, and that there are numerous circumstances to be taken into account in the exercise of what is, after all, a necessarily wide discretion.”

34. In Victoria (until the enactment of the Penalties and Sentences Act (1985) and in New South Wales there seems to have been a rejection of any view that mitigation can be based on some pragmatic approach that a plea of guilty saves public expense. In New South Wales it seems open to the Court to give a wide and generous interpretation to the concept of contrition, often by accepting the plea of guilty itself as evidence of contrition. Without being overly cynical, it is probably fair to say that there is far less real contrition than Judges would persuade themselves of; and I have no doubt that Judges know this, but err on the side of generosity. The difference between being sorry for what one has done and sorry for being caught is a difference which Judges may not always wish to investigate too thoroughly. In R v Holder (1983) 3 NSWLR 245 at 258 Street C.J. says:

“It has been said repeatedly in judgments of this court that guilty persons are to be encouraged to plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty. All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and for that matter in the non-parole period also) when proffering a plea of guilty. In order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in sentence is subsumed under the general category of contrition.”

However, His Honour does go on to say that:-

“In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court.”

35. In R v Lawrence (1980) 32 ALR 72 at 107-8 Moffitt P, while emphasizing that “a less sentence cannot be brought by a plea of guilty”, went on to say that:-

“In some cases contrition may be seen from confessing as a desire to mitigate the crime and not subject the State to the expense of a trial and from making a full revelation of what has happened and doing what can be done to right the crime.”

36. I do not take His Honour as suggesting there that a plea of guilty can mitigate merely because it saves expense and time, but only if accompanied by some circumstances of contrition or, as His Honour says, earlier:

“A plea of guilty may result in a less sentence but this is only by reason of what may be inferred in all the circumstances concerning the prisoner’s subjective intention and reaction to the crime he has committed.”

37. In R v Page (an unreported decision of the Victorian Court of Criminal Appeal quoted by Willis in ANZ Journal of Criminology, September 1985, p 131) Young C.J. delivering the judgment of the Court said:

“The only real relevance in my view of a plea of guilty is if it is indicative of remorse, although I am aware that the court has from time to time said that there may also be taken into account that it may save the community substantial time and money by avoiding a lengthy trial”.

38. As Willis points out the judgment in Page was decided after the judgment in Gray.

39. However, in Victoria, the position has now been changed by the Penalties and Sentences Act 1985. S.4(1) of that Act provides that:

“A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.”

40. In Morton (1986) 23 ACR 433 at 437 the Victorian Court of Criminal Appeal interpreted s.4 as meaning that: “A court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self interest … .” and observed at p 438 that Parliament had by this legislation indicated that “encouragement is to be given to pleas of guilty”.

41. Some Judges would limit the enquiry to determining whether genuine remorse was shown. See, for instance, the remarks of Hanger C.J. (with whom Skerman and Hart JJ. agreed), in R v Cox (1972) Qd R 125-6 where His Honour says:-

“I think that it is the indication of genuine remorse which is the substance of the matter. This is not always necessarily shown by a plea of guilty.”

42. For those who would wish to go somewhat further than accepting only “genuine” remorse, the schools divide between those who would still concentrate on the question of remorse but are prepared to treat the plea of guilty as at least prima facie evidence of that; and those taking the more pragmatic view that, normally some encouragement should be given to saving the community time and expense. Neither approach is satisfactory in strict logic. One is procrustean semantics; the other is administrative opportunism.

43. Of course, it is not suggested (at least in Australia) that a Judge is bound to mitigate for a plea of guilty. See Schumacher (1981) 3 ACR 441, where Blackburn J., while adopting the views of King C.J. in Shannon, comments that all the judgments there included “a rejection of the view that a plea of guilty entails, or invariably requires, a reduction in the severity of the sentence”.

The Sentencing Dilemma

44. Several judges, notably King C.J. in Shannon, have grappled with the problem that if a person whom the law presumes innocent, exercises his undoubted right to test the prosecution’s case by pleading not guilty, should he be in any worse position, at the conclusion of the trial, if he is found guilty, than if he had pleaded guilty at a much earlier stage? Or, to put it in a cruder form, can the court differentiate between an “honest” plea of “Not Guilty”, and a “dishonest” one; and, if so, how?

45. This difficulty has been commented upon by writers on the subject. For instance Willis in “The Sentencing Discount for Guilty Pleas” ANZ Journal of Criminology (September 1985) pp 131-146 says at p 137:

“This reluctance to make clear pronouncements on such an important issue, no doubt stems in large measure from the difficulties appellate courts have felt in reconciling the essentially pragmatic convenience of allowing discounts for guilty pleas with such basic and traditional principles as the presumption of innocence, the right to trial and requirement that the defendant’s plea be voluntary.”

46. Sallmann in “The Guilty Plea as an Element in Sentencing” 1980 54 LIJ 105-112, 185-189, illustrates the differing view points by reference to two letters in The Times newspaper written in February 1976. In the first Professor Glanville Williams writes:

“Although the courts say that they give the discount for the plea, and do not increase the sentence because the defendant fights the case, this is only a verbal point: the substance is that an offender gets a steeper sentence merely because he defends himself – yet the discount is a necessity, because offenders who have no defence must be persuaded not to waste the time of the court and public money.”

In reply Professor Gordon Trasler pointed to the:-

“central principle of our system of criminal trials that an accused person is entitled to challenge the coherence of the case laid against him … in entering this plea the accused is not claiming innocence; he is calling in question the adequacy of the evidence, and it is clearly in the general interest that he should do so … to the people at large … may be content to pay a price for the assurance that others will not be convicted upon inadequate evidence.”

Sallman comments that:

“The courts are, perhaps understandably, very reticent to make a clear statement on the issue. They are prepared to say that a not guilty plea should not involve a harsher sentence than would otherwise be justified, but they are not prepared to be explicit by taking the further logical step of saying that there is a difference for sentencing purposes between the two types of plea. It may well be that they are not prepared to take this further step because to do so involves running headlong into the cherished principle of a free and open choice of plea.”

47. A Canadian writer, Clayton C. Ruby in “Sentencing”, 3rd Edition (1987) at p 176 finds the same difficulties prevailing in Canada, and takes the rather gloomy view that “the problem, perhaps, remains insoluble”.

48. Nevertheless, I would reject the pragmatic view that a plea of guilty can justify mitigation on the sole basis that there is a saving of court time and public expense. If adopted at all, this would seem to become no more than a disguised form of plea bargaining, with undue pressure put upon the accused to plead guilty. Furthermore it seems to be a counsel of despair brought about by circumstances not relevant to the individual. In an article “Court Involvement in Pre-Trial Procedures” (1987) 61 ALJ 471 at 477, Pincus J., commenting on the growth of legal aid, takes the view that the congestion in the court system does not stem from a bad cause but rather from a good one. That is, that the availability of legal aid allows more persons to exercise that right which the law gives them to insist upon their right to trial and to insist upon the prosecution proving its case against them. The evil is not, therefore, in the growth of legal aid, but rather in the inadequacy of court resources to meet that growth. His Honour was concerned about what he saw as “the evolving rule as to rewards for pleading guilty in criminal cases.” His Honour went on to say:

“What has happened in consequence has been a rather disturbing development. In my respectful opinion, people are being punished for insisting on a trial, at least in the sense that they may receive a longer sentence if they plead not guilty than they would if they pleaded guilty. It is true that the cases which justify this practice put it the other way around: they say the convicted person may serve less time if he pleads guilty, but of course it comes to the same thing. That ‘fundamental … bulwark of liberty’, the privilege against self incrimination, looks a little less solid if the law is that one may be encouraged to admit guilt by the possibility of spending more time in gaol as a punishment for failing to do so.”

49. Willis, in the article already referred to, mentions the “ironic but telling comment” of Cox J. in Shannon at pp 458-9 that

“He (the defendant pleading not guilty but found guilty) will need a very subtle mind, unusually sympathetic to the way of the law, if he is to understand that he is going to prison for a longer term, not because he pleaded not guilty, but because he failed to plead guilty.”

50. It is interesting to note the robust approach of the English courts which seem to have happily solved the philosophical problem by ignoring it. This seems to stem from De Haan (1967) 52 CAR 25 at 27 where Edmund Davies L.J., delivering the judgment of the Court of Appeal (Criminal Division) says simply:-

“If, as is undoubtedly right, a confession of guilty should tell in favour of an accused person, that is clearly in the public interest.”

51. That statement is somewhat qualified by Lawton L.J. delivering the judgment of the Court in Davis (1980) 2 CAR(S) 168 at 170:-

“It is a principle of sentencing that whenever possible the court should take into account as a mitigating factor the fact that the accused have pleaded guilty. The extent to which it is a mitigating factor must depend on the facts of each case.”

52. Those remarks were adopted and given significant effect in Ross (1983) 5 CAR(S) 318 where the Court, consisting of May L.J. and Park and Peter Pain JJ., in circumstances where one accused had pleaded guilty and the other not guilty but had been convicted, and where both had received a 15 months sentence, reduced the sentence of the accused who had pleaded guilty to 9 months.

53. The position in England, indeed, seems to have been now accepted to the extent that Thomas – Principles of Sentencing (2nd Edition) p 52 can say:-

“These cases suggest that a mere plea of guilty without any further mitigation may justify a reduction of sentence of between one quarter and one third of the nett figures established by reference to the facts of the offence.”

54. See also the commentary on Ross in (1984) Crim LR 53 that “the discount was more generous than usual at 40 per cent”.

55. This approach has not found favour with the more logical Scots. C.G.B. Nicholson – “The Law and Practice of Sentencing in Scotland” (quoted in 1983 Crim LR 298) comments disapprovingly:-

“… in England there appears to be a well established practice approved by the Court of Appeal, of allowing, where there is a plea of guilty, a discount from what would otherwise be an appropriate sentence … (in Scotland) if any mitigation is to be found in cases where a plea of guilty is tendered, it must be found in factors which are mitigating in themselves and not in the mere fact of a plea of guilty … it would be quite unacceptable that, in a legal system which presumes innocence and which permits every person to go to trial, a person who was found guilty after trial should be punished more severely simply because he had not pled guilty.”

56. Despite the temptation to adopt the deceptively simple English approach, I consider that this Court cannot avoid the problem in this way, now that it is being increasingly recognised in Australia. While there is probably no perfect solution I am convinced that no argument based on administrative convenience should be acceptable and the emphasis should remain on factors “mitigating in themselves”, or to use the expression employed by their Honours in R v Lawrence (1980) 32 ALR 72 at 108 and 147, factors “subjective to the prisoner”.

57. In this context it may be that a substantial factor persuading a court to mitigate a sentence on a plea of guilty has not been fully explored, though it has obviously had a considerable influence in many cases. This is a factor which Cross J. of the Supreme Court of New South Wales in an unreported decision of Nicholls v Bushby (1978) (referred to by Moffitt P. in R v Lawrence (1980) 32 ALR 72 at 108) has called “rescipiscence”, which the Oxford English Dictionary translates as “recognition of errors committed”. The remarks of Cross J. are these:-

“Though of course an increase in an otherwise appropriate penalty can never be justified on the basis that the prisoner has pleaded not guilty (see R v Regan (1959) Crim LR 529; R v Harper (1968) Cr App R 21), it is trite law that an otherwise appropriate sentence may justifiably be reduced by a plea of guilty insofar as that plea demonstrates rescipiscence, saves the State the cost of a lengthy trial or avoids subjecting the victim -particularly children and women who have been the subject of sexual assaults – from the embarrassment and humiliation of giving evidence in open court (see R v de Haan (1968) Cr App R 25).”

58. Cross J., of course, puts rescipiscence as only one of the factors, but it is worth looking at in isolation. Should not some favourable consideration be given to a person who, while not showing remorse, at least shows sufficient maturity to acknowledge that he has done wrong and acknowledge that he should be punished. From a rehabilitation point of view it could be argued that a person showing that degree of realism may be some steps along the road, if not to repentance, at least to a degree of self control which may argue a more disciplined attitude in the future. Conversely, it could be suggested that considerable harm would be done if it were known that this sort of realistic self appraisal would gain no consideration from the court.

59. Of course, one could not push this concept too far. Obviously there will be cases where the prior history and attitude of the offender, and the circumstances of the offence will indicate no real prospect of rehabilitation. One is reminded of Saki’s story “Canossa” where the accused, a popular anarchist,

“not only pleaded guilty (to burning down the Albert Hall) but expressed his intention of repeating his escapade as soon as circumstances permitted; throughout the trial he was busy examining a small model of the Free Trade Hall in Manchester.”

But a candid recognition of wrongdoing and a preparedness to face the consequences, absent mere bravado or hypocrisy, seems to be well within the meaning of the phrase used by de Jersey J., “an honest plea of guilty”.

60. The rationale for taking into account a plea of guilty should therefore concentrate upon the individual and, unless outweighed by other factors, should operate favourably to the individual if true remorse is shown, or circumstances from which, from a realistic point of view, remorse may be inferred; or because the plea represents a realistic appraisal by the accused that he knows that he has done wrong and must be punished, and therefore exhibits prospects of rehabilitation through self knowledge, i.e., “an honest plea of guilty”. In my view most pleas of guilty could be placed in one or other of these categories (and often in both) and it is neither necessary nor desirable to accept that a plea of guilty will lead to mitigation if that mitigation is only on the basis that the courts will be spared expense and will function more efficiently. The fact that witnesses, particularly witnesses in sexual cases, may be spared the humiliation of giving evidence can, I think, be placed under the broad category of contrition, as a recognition that suffering has already been caused and should not be continued.

61. It is this concentration on the individual which can then rationally explain why a person who pleads “not guilty”, but is found guilty, may very well face a sentence greater than that imposed upon a person who pleads guilty to the same offence but who can demonstrate, by his plea, remorse or self realisation or both. I see no reason why this should not be said quite plainly. When it is said that there should be no increase in the penalty when a person who pleads “not guilty” is convicted, it should be made quite clear that what will not be increased is the “objective” sentence (as to which see R v Ireland (1978) 49 NTR 10 at p 22-23 per Nader J.). I can see no reason why a person who chooses to plead “not guilty” should not clearly understand that he runs a risk, if found guilty, that he may be deprived of certain mitigating factors upon which he could have relied if he pleaded guilty. Nor do I see any injustice or unfairness in the position. If his defence involves a complete denial of the offence for which he is charged, and if nevertheless it is established beyond reasonable doubt that he committed it, the obvious comment would normally be that he has shown no remorse or self-realisation and he should get no consideration for those factors; though the objective sentence will not be increased. Of course his defence may not be of that nature. It may be based on a question of interpretation or a submission of lack of evidence. If that fails there may still be room for the Court to find mitigating circumstances. Even in a case fully contested on its merits, some circumstances of mitigation may appear; but they will not normally be based on contrition or rescipiscence. The point is that, however he pleads, the Court’s attention ultimately must focus on the factors personal to him in determining whether to mitigate the objective sentence. It should not focus on whether he has or has not saved the community trouble or expense.

62. No doubt it may be said that this is mere casuistry and does not meet the objection that a person who has or believes he has a good defence may still feel under pressure to plead guilty. All that one can answer is that no system yet devised can prevent that, and it is unrealistic and hypocritical to deny that this sort of pressure occurs. But at least the pressure is not increased by suggesting possible rewards for contributing to administrative efficiency.

63. The question asked by the learned Solicitor-General as to what, if any, discount should be given from an otherwise proper sentence for a plea of guilty cannot therefore, and in my view should not, be answered other than in general terms. However, insofar as guidelines rather than formulae are sought, (as to which see the remarks of Mason and Deane JJ. in Norbis v Norbis (1986) 161 CLR 513 at 519), I see no difficulty in stating that, provided the sort of factors already mentioned exist which may legitimately be taken into account on a plea of guilty, there will usually be some and often a substantial reduction from the objective sentence. But because the circumstances vary widely it would be wrong and unduly restrictive of a sentencing judge’s discretion to fix on any specific percentage reduction even as an average; nor has any other State or Federal Court attempted such an exercise.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2024 years ago

Does the serving of concurrent sentences in Australia (does this still happen??) help in this?

Ken Parish
Ken Parish
2024 years ago


Yes offenders may be sentenced to serve terms concurrently for offences of which they’ve been convicted, and obviously that will shorten the total amount of time they spend in prison. I’m not a criminal law specialist, but I don’t think that has much to do with plea bargaining as such (although a prosecutor might invite a judge to impose sentences concurrently as part of a plea bargain with the defence – it’s just one of numerous sentencing options).

Martin Pike
Martin Pike
2024 years ago

It has always seemed to me that what is occurring, in substance, is that the defendent is punished for exercising their right to run a defence. Although it is construed through the positive, that is as a reward to the person who pleads guilty, it can equally be seen to be a penalty.

Ken Parish
Ken Parish
2024 years ago


Austin Asche canvasses your point at great length, and then reaches the following commonsense conclusion, with which I agree:
No doubt it may be said that this is mere casuistry and does not meet the objection that a person who has or believes he has a good defence may still feel under pressure to plead guilty. All that one can answer is that no system yet devised can prevent that, and it is unrealistic and hypocritical to deny that this sort of pressure occurs. But at least the pressure is not increased by suggesting possible rewards for contributing to administrative efficiency.

Martin Pike
Martin Pike
2024 years ago

A nice example of legalese if ever I saw one! He’s right, it can’t be perfected, it is I suppose a question of how far into the grey area between two ostensibly legitimate purposes the Courts should go.

Ken Parish
Ken Parish
2024 years ago


Exactly. And Australia doesn’t go nearly as far towards encouraging/coercing gulity pleas as the US. I think we’ve got the balance mostly right.

John Quiggin
John Quiggin
2024 years ago

It might be helpful to expand more on the implications of different kinds of defences. Some failed defences (for example, attacking the character of the victim) seem to me to exacerbate the original offence, or at least to be even more adverse to claims of remorse than, for example, a false alibi.

Ken Parish
Ken Parish
2024 years ago


Your point is well made. Even though pleading not guilty and defending charges at trial should not per se result in being effectively punished for doing so if later found guilty, there are certainly some types of defences (and defence tactics) that are fundamentally inconsistent with the existence of contrition/remorse (and which therefor mean that no discount whatever should be available). Attempting to blame or attack the character of the victim (e.g. she asked for it by dressing or acting provocatively in a rape case) is a good example. False alibi, though slightly less clearcut, is another. That sort of conduct does (and should) deprive an offender of any credit whatsoever in sentencing.

However, it doesn’t totally resolve the conceptual dilemma involved in discounting sentence for a guilty plea by comparison with someone who pleads not guilty but simply puts the prosecution to proof. In that sort of case, it’s fairly difficult to avoid the inference that some degree of pressure is being brought to bear on an accused to plead guilty, and that this doesn’t square totally with the presumption of innocence and the right to a fair trial. However I think, like Austin Asche, that plea bargaining/discounts for guilty pleas are defendable and acceptable as long as the discount isn’t excessive and the judge is in no way involved in negotiating it.

Philippe Gregoire
Philippe Gregoire
2024 years ago

when was the last time you had a look at the sentencing remarks of the supreeeeme court ?
I still think all judges have to be hung and all the lawyers castrated…cheers…

Martin Pike
2024 years ago

Ah, I wondered where Australia’s legendary intellectual elites were hiding out…
PS Why do you want Judges to have large appendages? Kirby wouldn’t disagree, I’m sure!
PPS You’ll be left with a whole bunch of female lawyers, which I suppose would at least make Jocelyn Scutt happy…

John Quiggin
John Quiggin
2024 years ago

OTOH, some defences, for example to do with the defendant’s state of mind could enhance a case for leniency, even if they were not sufficient to procure an acquittal.

An important point about presenting such defences at trial is that they are subject to cross-examination in a way that is less true for pleas in mitigation where (as far as I can see) the defendant can claim just about anything they like.