Guilty Plea
Penalties and Sentences Act (Qld) 1992 s13(1)(a) the court must take the guilty plea into account and s13(1)(b) the court may reduce sentence, taking into account time offender pleaded guilty (s13(2)(a)); or informed the relevant law enforcement agency of their intention to plead (s13(2)(b)).
Process requirements
▫S13(3) Court must state in open Court that they took into account the guilty plea (important for transparency)
▫S13(4) If the Court does not reduce it must state why in open court
▫S13(5) But if the Court failes to follow these processes, the sentence is not automatically invalid
See R v D [2003] QCA 547 for an example of when a plea did not result in a reduction.
How can a reduction for a guilty plea be made? See R v BAY [2005] QCA 427 at para [54]:
* By recommendation for early parole where possible
▪Eg. after 1/3 of head sentence – eg. R v Hey [2006] QCA 23
* Reduction in head sentence
▪Important if Serious Violent Offence declaration made
▪Range 10-30% discount (per Fryberg J in Houghton [2002] QCA 159 at [31])
* Not making Serious Violent Offence declaration – eg. Lewis [2006] QCA 121
* Not ordering sentences to be served cumulatively
* Suspending all/part of a sentence
* Ordering a sentence be served by way of Intensive Correction Order
* Making a shorter order of imprisonment, combined with Probation
* Making Community-Based Orders
Why is a plea of guilty taken into account in mitigation:
1.Because it is evidence of the offender’s remorse; and 2.“[o]n the pragmatic ground that the community is spared the expense of a contested trial.” Gleeson, Gummow, Hayne & Callinan JJ in Siganto v The Queen (1998) 194 CLR 656 at 663-664.
Justice Atkinson in R V BAY [2005] QCA 427 at para [53] noted: “The value of [these criteria] varies depending on the nature of the crime, the time at which a guilty plea is indicated or entered and the extent of any cooperation with the prosecuting authorities.”
'Moral view'Plea of guilty can denote:
▫Remorse ▫Acceptance of Responsibility ▫Willingness to facilitate the course of justice It reflects a moral distinction btwn persons making different pleas. The discount here is reliant on the subjective state of mind of the accused. |
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Cases on Guilty Pleas
Cameron v The Queen [2002] HCA 6:
HCA ruled that it was wrong to deny discount because of utilitarian considerations (ie. That there was little actual saving in this instance). Instead the Court considered whether the discount was deserved and whether the offer to plead was made at the ‘first reasonable opportunity’
What then is the “first reasonable opportunity”? “The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly." Kirby J in Cameron [2002] HCA 6 at para 75
R v Nielson [2006] QCA 2:
The plea in this case was not found to be early.
President McMurdo noted: “There was nothing to stop the applicant, through his counsel, from suggesting to the prosecution that the applicant may be prepared to plead guilty to the offences to which he ultimately pleaded guilty conditional upon the prosecution withdrawing [certain counts]. Had he done so, he would have been entitled to further credit for his co-operation with the administration of justice.”
R v Lyon [2006] QCA 146:
Found to be an early plea.