Thionnet v Stephenson [2001] ACTSC 132 (21 December 2001)

Last Updated: 19 March 2002

SHANE THIONNET v GREGORY ROSS STEPHENSON [2001] ACTSC 132 (21 December 2001)

CATCHWORDS

CRIMINAL LAW - sentence - whether manifestly excessive - sentence indication -

guilty plea after indication but before completion of committal hearing - great disparity between indication and sentence imposed - authorities considered - appeal upheld - sentence imposed set aside.

CRIMINAL LAW - sentence - whether sentencing magistrate, contrary to principle in De Simoni, considered aggravating circumstances which would have warranted conviction on a more serious charge - she did - appeal upheld.

CRIMINAL LAW - sentence - sentence indication - indication for plea of not guilty significantly more severe than that for guilty plea - improper inducement to plead guilty rather than discount for early plea - process of sentence indication inappropriate - appeal upheld.

CRIMINAL LAW - sentence - sentence indication scheme - criticisms.

Crimes Act 1900, ss 102(2), 347

Criminal Procedure Act 1986 (NSW)

Workplace Health and Safety Act 1995 (Tas)

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v Marshall [1981] VR 725

Keily v R (1989) 11 Cr App R (S) 273

Johnson and Lorraine v R (1990) 12 Cr App R (S) 219

R v Warfield (1994) 34 NSWLR 200

Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95 (13 September 1999)

R v Hollis (unreported, NSWCCA, No. 60564 of 1994, 3 March 1995, BC 9504274)

No. SCA 82 of 2000

Judge: Higgins J

Supreme Court of the ACT

Date: 21 December 2001

IN THE SUPREME COURT OF THE )

) No. SCA 82 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHANE THIONNET

Appellant

AND: GREGORY ROSS STEPHENSON

Respondent

ORDER

Judge: Higgins J

Date: 21 December 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The sentence imposed be set aside. In lieu thereof, a conviction be recorded and the appellant be released upon entering a recognizance, self in the sum of $500, to be of good behaviour for a period of 6 months from today. It is to be a further condition that he accept the supervision of the Director of ACT Corrective Services or such nominee as the Director may from time to time appoint and to obey any reasonable directions.

1. This is an appeal from a decision of Magistrate Doogan imposing a sentence of three months imprisonment upon the appellant who pleaded guilty to a charge that he:

" . . . on 21 December 1999 did assault Lefran Ruby Jard and thereby then occasioned to her actual bodily harm."

2. The facts relied upon by the prosecution, without objection, were that, at about 9:50am on Tuesday 21 December 1999, Ms Jard was at home. She received a phone call from a Ms Rebecca Baxter. They had a heated argument.

3. Shortly thereafter, she saw Ms Baxter and a male person, later identified as the appellant, approaching her house.

4. There was a loud knocking on the front door. Ms Jard armed herself with a baseball bat and opened the door. She had a conversation with Ms Baxter and the appellant.

5. Ms Jard told them to "fuck off". She went to close the door but the appellant prevented that. She then raised the bat "to a defensive position" and attempted to push the appellant away. At this point she had, it seems, exited the house. She then felt a blow to her forehead. This was apparently struck by Ms Baxter. She then heard something fall onto the step sounding like a piece of metal.

6. At that point the appellant took the bat off her. Ms Jard states that:

"I was angry at being hit and I was going to get up and go after the [appellant] as I wanted to hit him myself."

7. The appellant swung the bat striking Ms Jard on the left hip. It was a hard blow. It caused severe pain and a small abrasion as well as a large bruise.

8. Ms Jard suffered a more serious injury from the blow to the head but it was conceded by the prosecution that the appellant was not responsible for or complicit in that injury.

9. Initially, the appellant denied that he had struck Ms Jard but when the case management hearing took place on 31 August 2000 he admitted his guilt and asked for a "sentence indication."

10. The prosecutor, I am informed, handed to Mr Burns, the presiding Magistrate, a police "Statement of Facts." This is exhibit 3. It was, though brief, an accurate summary of the allegations against the appellant.

11. His Worship was also given two photographs, each depicting the hip injury to Ms Jard (exhibit 1) and a record of prior convictions of the appellant (AB-9). There are four entries on that record but three are traffic matters and one relates to possessing stolen property. The appellant has no history of offences of violence.

12. Mr Perkins, for the appellant, offered the following explanation for the appellant's actions:

" . . . he was not aware that [Ms Baxter] had a weapon with her. He tells me, your Worship, that there was a knock on the door. The door was answered by [Ms Jard] who was holding a baseball stick. To his surprise [Ms Baxter] produced a weapon and hit [Ms Jard] on the head. After that, your Worship, the victim attempted to use the baseball bat to defend herself. My client felt himself in danger of being heard (sic-"hurt") and grabbed the bat and . . . he used that bat and . . . it was a mistake that he did use that bat in that manner."

13. His Worship then commented as follows:

" . . . I think it is appropriate not only before I give the indication as to what I would sentence the defendant to today that I give some reasons for doing so, but also I indicate what sentence to my mind would be appropriate if the matter went to hearing thereby indicating that there was a lack of contrition on the part of the defendant with respect to this matter. The statement of facts would suggest that - and indeed the photograph, which has been put before me, would suggest that the blow which was struck was a fairly solid blow being sufficient to break the skin of the victim.

And it occurred in circumstances in which the victim had already been struck to the head with another object. It also occurred in circumstances where the only weapon which the victim, a female, had had been taken from her by this defendant, such that it is very difficult to accept any proposition that the defendant had any real concerns about his safety when striking the blow.

The use of a baseball bat in this way to my mind is an aggravating circumstance in a charge of assault occasioning actual bodily harm. Ordinarily even with a person who has no previous convictions for matters of violence I would consider that something in the range of a period of six months would be an appropriate sentence.

If the matter were to be dealt with by way of a plea of guilty today, bearing in mind the remorse shown by the defendant on that regard, I would be prepared to sentence him to a period of four months to be served by way of periodic detention.

14. The prosecutor commented that such a disposition would be "quite appropriate." It is unclear whether that was an endorsement of only the latter indication or of the whole of it including the upper range of the indication.

15. After a short adjournment, the appellant sought a date for a contested hearing. The twenty-fifth of October 2000 was set.

16. On that date, however, a plea of guilty was entered and accepted before Magistrate Doogan. A pre-sentence report was ordered and the matter adjourned part-heard to 13 December 2000.

17. There was a pre-sentence report prepared. It had been read by her Worship prior to the hearing, though it is unclear how it got before her. Fortunately, there did not seem to be any material in it to which either party was minded to object. In part it reported the appellant's version of the incident in the following terms.

"The offender claims his girlfriend decided to attend the home of the victim [following their argument on the telephone] in an attempt to resolve the differences between the two. Mr Thionnet reports [that] he decided to support his girlfriend and therefore accompanied her. He states [that] on arrival at the victim's residence he and his girlfriend were threatened with violence when the victim came out of her house with a raised baseball bat. Mr Thionnet claims he was struck with the baseball bat as he attempted to disarm the woman, but eventually wrested the object from her. He claims he subsequently struck her once when she ran at him. The offender states that he did not attend the victim's residence with any weapons, and did not cause any injury to her forehead. He states that on leaving his girlfriend's residence it was not his intention to become involved in an altercation, or to assault the victim."

18. Even on this account, though closer to self-defence than the statement of the victim, the appellant could not justify striking an unarmed woman with a baseball bat, even if she was then endeavouring to strike him with her fists.

19. He expressed remorse for his actions and the Probation and Parole Officer, Mr Rob Russell, accepted that he was genuine in that expression of remorse. He noted that the appellant was an under achiever and had made a poor choice of associates. These factors and his then cannabis use (the argument between the two women was about cannabis), in Mr Russell's opinion, "contributed to his offending behaviour." The appellant had since terminated both his relationship with his girlfriend and his cannabis use, the latter however, "relatively recently."

20. Mr Sharman, who appeared for the appellant before her Worship, noted the differences between his account of the incident and that of Ms Jard but described that difference as "not material."

21. It was clear however, that the version given by the appellant as reported in the pre-sentence report was not in any way qualified by the appellant. As neither version was supported by direct evidence, it was not open to accept any version of the facts more adverse to the appellant than those he had admitted.

22. In response, Mr Hempenstall, for the informant, told her Worship:

". . . the matter did come before a case management hearing where a sentence indication was sought from Mr Burns, and I think Mr Burns said, if the matter went to hearing he would have imposed imprisonment for six months, and if there was a plea [of guilty] he would have, I think, given a periodic detention. I'm not suggesting for one moment that your Worship is bound by what Mr Burns says, and - but I just do point out that that was raised at the case management conference."

23. There was a mild protest from Mr Sharman as to this. He said:

". . . the matter obviously has come before some other Magistrates in this court as to the appropriateness of whether or not sentencing indication should become a matter which is erased from subsequent sentence [proceedings]. Mr Dingwall is certainly of the opinion it's not appropriate for that to be taken into account on sentence."

24. Her Worship recited the facts as alleged by both sides. She stated that she did not regard the differences between them as significant. She then commented:

"But the fact of the matter is that the defendant had no legitimate right at all, or no legitimate reason to go to the complainant's home on that particular day, and certainly when he was told to leave . . . he should have done so. "

25. Of course, that gives no indication as to whether her Worship accepted that, in effect, Ms Jard had attempted to enforce her demand that the appellant and Ms Baxter leave the premises by attempting to attack them with her basesball bat, being disarmed by the appellant in the course of doing so. Her Worship continued:

"His actions following that were reprehensible. They represent a violent attack with a weapon, and his actions must be condemned."

26. That is a proper assessment, subject to the qualification that the appellant did not take the weapon with him but used it on the spur of the moment when the person who had threatened him with it rushed at him [and Ms Baxter] in order to hit him. He certainly over-reacted.

27. Her Worship continued:

" I find that there is no mitigation present in the action of the defendant. The woman is inside her home, the defendant goes to the door and asks for Ray, that's hardly consistent with him being there to support his girlfriend to sort things out with the complainant."

28. I have to say that I have difficulty perceiving the inconsistency. Further, if the comment is intended to suggest that the credit of the appellant was being put in doubt, there was no evidence to support it. The appellant had not expressly agreed that the conversation was as asserted by Ms Jard but, even so, it may have been the case that the appellant felt that hostilities between the two women might be less if "Ray" (apparently Ms Jard's partner) was present.

29. Her Worship continued:

"I mean, members of the community have a right to feel safe in their own homes from violent attacks by strangers, and to all intents and purposes the defendant was a stranger. And persons have a right to tell unwelcome strangers who come visiting with suspect or hostile intentions - as certainly I find the defendant had on this particular day - persons have a right to tell such strangers such visitors to leave. They have a right to do so and that right is fundamental to a person's safety and that right must be safeguarded and sanctions must be imposed upon these persons, such as the defendant, who don't respect the right's of others to the privacy and relative safety of their own homes and who go to a person's home and commit violence against them".

30. Although there is much force in her Worship's observations and, certainly, some application of it to this matter, it does seem to be contrary to some of the agreed facts. It was not disputed by the prosecution that the appellant had not gone to Ms Jard's premises with a view to threatening her. He had no "suspect or hostile intentions." Nor had he been aware of Ms Baxter's intentions, whether they were hostile, violent or otherwise. He did not initiate the violence. His fault was in responding to Ms Jard's attack after that attack ceased to be a threat. The finding her Worship purported to make was, therefore, both unfair and contrary to the facts put to her by both sides.

31. Her Worship did accept that the appellant was genuinely contrite but nevertheless imposed a sentence of three months imprisonment.

The Submissions on Appeal

32. The appellant's counsel, Mr Everson, challenged the sentence imposed on a number of grounds.

33. The first was that her Worship's sentencing remarks indicated that she had impermissibly taken the view that the offender had attended Ms Jard's premises as a trespasser with intent to commit assault. Effectively, he was sentenced on the basis that he was guilty of a different and more serious offence than that to which he had pleaded guilty.

34. That, Mr Everson contended, was contrary to the decision in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Gibb CJ expressed the principle relied on in the following (at 389):

". . . a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

35. Ms Jones, for the respondent, pointed out, correctly, that the serious offence, trespassing in a building with intent to commit an assault occasioning actual bodily harm (or worse), would not have been open. The assault took place outside the building. Of course, Ms Jard had alleged that, as she attempted to close her front door, the appellant pushed it open. She then exited. That enabled Ms Baxter, it seems, to strike Ms Jard with an object which she had apparently concealed on her person.

36. The account offered by the appellant in the pre-sentence report had not conceded that he had prevented the door being closed. His account implied that Ms Jard had exited apparently to enforce her demand that the appellant and Ms Baxter leave the premises. She did not, on this account, appear prepared to allow a reasonable interval for voluntary compliance.

37. The facts as alleged by Ms Jard could have supported a charge of attempting to commit an offence against s 102(2), contrary to s 347 of the Crimes Act 1900, assuming a serious battery was intended by the trespassers.

38. In any event, as I have already indicated, in characterising the offence as she did, her Worship went beyond the facts accepted by both prosecution and defence at the sentencing hearing.

39. There was a general submission that the sentence was manifestly excessive. That led to a discussion of the role of the sentence indication given at the case management hearing. I gave both parties the opportunity for an adjournment to give that issue further consideration.

40. Following that adjournment, Mr Everson submitted that the disparity between the sentences indicated by Magistrate Burns indicated error and the disclosure of that indication to Magistrate Doogan was likely to have improperly influenced her Worship to use the upper indication as a starting point and was, therefore, a further error.

41. Ms Jones, for the informant, submitted only that the sentence indication had not been binding on her Worship and that the plea of guilty later tendered could not have reactivated an expectation that the lower indicative sentence was to be imposed.

Sentence indication at Case Management Hearings

42. The adoption of a practice of giving sentence indications in the Magistrates Court arises out of Practice Direction No 2 of 1999 relating to Case Management Hearings (CMH). In general, the directed procedures are aimed at ensuring early disclosure by the prosecution and the early identification of a plea from defendants with a minimum of adjournments and delay. The CMH stage is stated to be an opportunity for negotiation between the DPP and the defence to identify:

* the charges which will proceed at hearing.

* whether pleas will be entered to some or all of the charges.

* whether all the witnesses named in the brief will be required to give oral evidence.

and

* the issues actually in contest.

43. The issue of sentence indication is introduced as follows: (par 5.2)

"Where it is appropriate that a sentence indication be made the presiding Magistrate will:

require the DPP to briefly state a position on sentence should the matter proceed by way of a plea of guilty at the Case Management Hearing;

require the DPP to tender a copy of the criminal record;

invite the defence to put forward any particular subjective matters that would be relevant to penalty if ultimately the matters were found proved;

indicate in general terms a sentencing outcome if the matter was a plea of guilty at the Case Management Hearing.

If following upon the above process the matter is to be dealt with on a plea of guilty the Magistrate may deal with the matter immediately or adjourn the matter to another time or date. The same Magistrate will deal with the matter on that adjourned date.

Pleas of guilty entered at the Case Management will usually attract only a limited discount on sentence."

44. It is apparent that the sentence indication given by Magistrate Burns was not in accordance with this Direction. First, the prosecutor was neither asked for, nor did he state, the DPP's position on sentence before the defence indicated the subjective factors relied upon. Indeed, that position was not stated until after the sentence indication had been given.

45. Mr Hempenstall was, at that point, asked by Magistrate Burns:

"Would the prosecution suggest that that would be an inappropriate sentence in the circumstances?

MR HEMPENSTALL: No I would submit that is quite appropriate given the facts of this case, your Worship."

46. Further the invitation to the defence to state the "subjective matters" was not put on the basis merely of a hypothetical finding of guilt. It really amounted to an admission that the appellant had, though acting to avoid being hit, gone too far and used the bat, wrested from Ms Jard, to strike her, thus going beyond reasonable self-defence.

47. The most egregious departure from the Practice Direction was the sentence indication itself. The only matter which ought to have been stated was the sentence which would have been attracted had a plea of guilty then been tendered. The Practice Direction does not invite an indication as to the sentence that might be imposed if the plea of not guilty was unsuccessfully persisted in.

48. To characterise persistence in a plea of not guilty as showing a lack of contrition and to suggest that such persistence would warrant a sentence vastly more severe than the indicated sentence was not only an error, it was also inappropriate.

49. The Practice Direction itself notes that the discount for a guilty plea should be "limited". That was certainly not the case with the sentence indicated by Magistrate Burns. Indeed, the disparity was so great as to amount to an improper inducement to plead guilty, whatever the defendant's personal perception of his or her guilt might be. That is the very reason, no doubt, why the Practice Direction was concerned to state that the discount for the early plea should be "limited."

The discount for a guilty plea

50. It is accepted sentencing practice that a plea of guilty will attract a discount to the sentence which would have been imposed in the absence of that plea. The extent of the discount will vary according to the utilitarian value of the plea. That is, timeliness to the extent to which it saves court time, expense to parties and witnesses, stress to witnesses and others and the extent to which it represents genuine remorse and desire to atone.

51. Although it should be stressed that guideline judgments are not to be regarded as prescriptive, the recent guideline judgment of the Court of Criminal Appeal (NSW) in R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383 is worthy of attention. The starting point, the Court affirmed, is that sentences should not be inflated, nor large discounts offered, in exchange for a plea of guilty. As Spigelman CJ noted, at 388:

"Some parts of the community, like Aboriginal accused, may be particularly vulnerable to inappropriate pressures to plead guilty. A sizable discount for a plea may increase such pressures."

52. In R v Thompson (supra) three issues were addressed. First, whether a sentencing judge should indicate that a discount had been given for a plea of guilty. Second, whether judges should be required to quantify the discount given. Third, what quantitative guidance should be given as to the amount, or range, of the appropriate discount, graduated according to the timing of the plea.

53. The first two issues are not significant to a plea indication, particularly when both the upper limit and the discounted sentence are indicated. The third is of significance. The judgment in Thompson address both the utilitarian aspect of the plea and the contrition it represents or supports. After all, as Spigelman CJ noted, even a plea of "not guilty" is not necessarily inconsistent with remorse for the conduct comprising the alleged offence.

54. The "utilitarian value" of a plea, Spigelman CJ considered, should be assessed as 10-25%. That does not include the elements of contrition or witness vulnerability. The 10-25% range would be expected to vary according to the timing of the plea. The later the plea, of course, the less value is the utilitarian benefit of the plea. However, it should be noted that, at the time this appellant formally offered to plead guilty, the proceedings had yet to reach the stage at which committal proceedings would have been completed. In this Territory, a contested matter involving, as here, an indictable offence, could proceed either as a final hearing before a Magistrate or, whether or not a plea of guilty is offered, as a committal to the Supreme Court.

55. The guideline adopted was as follows: (at 419)

"(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 - 25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."

56. A plea indication certainly avoids contravention of the first of those guidelines. Albeit as "a single combined quantification," Magistrate Burns expressly pronounced the discount to be applied. However, the facts of the case indicated that the appellant had, apparently sincerely, expressed remorse independently of the plea. The strength of that remorse might have been enhanced by an earlier plea, but there was disagreement as to certain aggravating factors so that the timing of the plea did not really alter the appellant's attitude to the offence itself or to the harm done by him to Ms Jard.

57. Further, there was no factor of vulnerability of witnesses to be considered. Nor was there any issue concerning co-operation with authorities. Given those considerations it is difficult to justify a discount from six months full-time custody, with or without earlier release on parole, if that was ever an appropriate sentence, to four months periodic detention.

58. The disparity between the two could not be justified, even if the early plea enhanced the then existing expressions of remorse offered by the appellant.

59. The result is that the higher sentence could only have had the effect, no doubt unintended, of placing inappropriate pressure on the appellant to plead guilty.

The subsequent hearing

60. Of course, the appellant did not accept the indication given. Arguably therefore, the adverse effect of the defective sentence indication was by then spent.

61. That, however, creates a further dilemma. Clearly Magistrate Burns, having indicated a sentence considered by the appellant to be unacceptable, could not, without reasonable apprehension of pre-judgment, proceed to hear the matter further. The guidelines for the CMH clearly acknowledge that. The further hearing then had to be continued before another Magistrate.

62. The dilemma then is this. If a Magistrate accepting a later plea of guilty is not to be told of the prior sentence indication, then a defendant would have no opportunity to explain his or her failure to offer an earlier plea on grounds that the indicated sentence had reasonably been considered to be too harsh, or otherwise not appropriate.

63. On the other hand, to reveal the indicated sentence, as was done here, is to influence the presiding Magistrate, even if only implicitly, to consider that the starting point is the upper limit expressed with a discount then for the later plea of guilty. It also tends to suggest that no sentence less than four months periodic detention would be appropiate.

64. It follows that the giving of sentencing indications is fraught with difficulty if the indication is not accepted.

65. The authorities from jurisdictions where, formally or informally, sentence indications have been given before a plea of guilty has been formally offered, illustrate the problem.

66. In R v Marshall [1981] VR 725, a Full Court (Young CJ, McInerney and McGarvie JJ) considered a situation where a trial judge had, in open court, given a sentence indication. It was accepted. The Crown appealed. The Full Court condemned the practice of "plea bargaining" whereby: (732)

"Counsel for an accused and counsel for the Crown attend the judge in his private chambers and discuss an arrangement whereby, upon the judge indicating the probable sentence and the Crown indicating that it will accept a plea of guilt to a particular charge, the accused through his counsel indicates that he will plead guilty."

67. The vice in the practice was found to be:

". . . it does not take place in public, it excludes the person most vitally concerned, namely the accused, it is embarrassing to the Crown and it puts the judge in a false position which can only serve to weaken public confidence in the administration of justice."

68. The proceedings in R v Marshall (supra) of course, had taken place in public and been recorded on the transcript. However, in their Honours' view that did not render the "sentence indication" so given unobjectionable. (see 733-736). A summary of their Honours' observations is as follows:

* The trial judge will be inhibited from passing a more severe sentence than indicated, even if, after all the evidence is given, that seems appropriate.

* If a more severe sentence was imposed, the accused would have a justified sense of grievance.

* If the Crown appealed from a sentence imposed according to the indication, and the appeal court increased the sentence, the accused would have a justified sense of grievance.

* The process would foster a belief that there will be a lesser sentence, able to be publicly negotiated, for a plea of guilty.

* There is the danger that the indication will be imprecise and, hence, misunderstood (eg. in the case of this appellant, if 6 months imprisonment was to be imposed, what would the non-parole have been, if any?)

* Even if the disparity does not place "undue" pressure on an accused to plead guilty, it does run contrary to the principle that the judgment of a court is delivered only after the court has heard, publicly, all that each party wishes to put before it.

* The accused's legal advisers have the responsibility to advise the accused on the likely sentence. That responsibility ought not to be transferred to the court.

69. That does not mean, their Honours pointed out, that there is never any situation in which, in the course of a plea, " . . . a trial judge, with a view to shortening the proceedings, [might] stop counsel pursuing a particular line upon the grounds that it is unnecessary to do so."

70. In Keily v R (1989) 11 Cr App R (S) 273, the accused had been given an indication of a non-custodial sentence by one judge but was then sentenced by a different judge. The latter was informed of the indication but declined to follow it, imposing an immediate custodial sentence.

71. The Court of Appeal (Watkins LJ, Simon Brown and Brooke JJ) upheld the accused's appeal. Notwithstanding that a different judge had proceeded to sentence the appellant that judge was bound, in their Lordships' view to impose no harsher penalty than had been previously indicated. Their Lordships said, at 277:

"It seems to us logically that no difference should result merely from the chance introduction of a second judge to conduct the eventual trial. Were it otherwise, an accused given the original assurance of a non-custodial sentence upon a plea of guilty could well be tempted, perhaps even if innocent, to plead guilty lest the matter were thereafter to be tried by a different judge who would not then be bound by that assurance; an assurance which upon the authorities would plainly avail the accused equally upon conviction." (emphasis added)

(see also Johnson and Lorraine v R (1990) 12 Cr App R (S) 219).

72. In 1992, notwithstanding the above mentioned observations, the New South Wales Parliament amended the Criminal Procedure Act 1986 (NSW), permitting a District Court judge, on arraignment of an accused, to indicate the sentence he or she would impose if there was to be a plea of guilty. A practice note (No 22 - December 1992) made it clear that, if the accused pleaded guilty, the sentence would be imposed by the indicating judge. The sentence would be in accordance with the indication unless the additional relevant material ultimately tendered warranted a difference. If the difference was such as to lead the sentencing judge to contemplate a harsher sentence, the accused could change his plea and, in any event, go before another judge.

73. In R v Warfield (1994) 34 NSWLR 200, Hunt CJ at CL considered a Crown Appeal against a sentence imposed after a sentence indication hearing. His Honour considered such a person, faced with a Crown appeal, was doubly disadvantaged.

"(210) The respondent to a Crown appeal from a sentence imposed following a sentence indication hearing, and who pleaded guilty only when the sentence to be imposed had been indicated, faces the prospect of far greater detriment - both a trial and the possibility of a substantially longer sentence because he did not plead guilty."

74. In that case, the perceived inadequacy of the sentence led to the success of the appeal, but not without leave being granted to the respondent to change his plea. Hunt CJ at CL noted that in most cases such Crown appeals had been unsuccessful. The usual caution against "double jeopardy" created by a Crown appeal was greatly enhanced, in respect of a sentence given in accordance with a sentence indication.

75. Failure of a sentencing court substantively to honour an indication will lead to a successful appeal by the offender.

76. In Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95 (13 September 1999), the appellant had been charged with a breach of the Workplace Health and Safety Act 1995 (Tas). The Magistrate, at a "contest mention hearing" gave a sentence indication as contemplated by a practice note, similar in effect to that noted in the present case. His Worship said:

"It would seem to me that if any penalty at all is to be imposed, it would fall at the lower end of the scale."

77. A plea was entered. One other charge was dropped. A fine of $8000 was imposed.

78. On appeal by the offender company, Underwood J commented, at par 14:

"No doubt sentence indications have the desirable effect of reducing the length of lists of cases awaiting disposition in courts of petty sessions, but they also carry with them the risk that defendants may abandon good defences that are available to them upon receiving an indication of a light sentence in order to save the cost and trouble of defending complaints."

79. Despite the fact that the maximum fine which could be imposed was $150,000, Underwood J held that, even absent the sentence indication, a fine of no more than a few hundred dollars could be justified. But, given the indication, a sentence merely recording a conviction should be imposed.

80. The New South Wales scheme was reviewed in 1995. The report is published by the NSW Bureau of Crime Statistics and Research. (D Weatherburn, E Matka, and B Lind, Sentence Indication Scheme Evaluation, October 1995, available at www.lawlink.nsw.gov.au/boscar1.nsf/pages/legislativeseries).

81. The report noted that early indications had suggested that the sentence indication scheme would deliver a considerable saving of court time by reason of earlier guilty pleas.

82. However, an interim report had found that overall, the proportion of defendants proceeding to trial had not altered. The report, therefore, asked whether delay had, in fact, been reduced.

83. A further question was whether those who pleaded guilty after a sentence indication obtained a lesser discount than those who pleaded guilty from the outset (see R v Warfield (supra); R v Hollis (unreported, NSWCCA; No 60564 of 1994, 3 March 1995, BC 9504274), as would be expected, or whether it was, inappropriately, greater. That is, was there an inappropriate incentive to plead guilty at the sentence indication hearing rather than earlier.

84. The detailed report of Weatherburn, Matka and Lind found the following (selected quotes):

". . . the scheme has had no effect on the proportion of defendants proceeding to trial.

. . . the reduction in delay between committal and case finalisation . . . did not accelerate.

. . . .the scheme would appear to have created a situation in which those who plead guilty under section 5(A) of the Justices Act (ie at committal) enjoy no greater discount on sentence than those who reserve their plea of not guilty in order to obtain access to a sentence indication hearing . . . where full - time sentences of imprisonment are concerned . . . those who plead guilty at committal are at a distinct disadvantage compared with those who do not plead guilty until a sentence indication hearing."

85. There was however, some anecdotal evidence of fewer pleas of guilty "on the door of the court."

86. The authors explain this perception as:

" . . . indicating that the scheme produced at least a temporary reduction in the percentage of matters proceeding to trial in the Sydney District Court even if this was not evident in the statistical analysis . . . it is possible, then, that the sentence indication scheme did bring in "more pleas of guilty" at the Sydney District Court but that this effect only lasted while a lenient judge [as perceived by the profession] was assigned the task of carrying out sentence indications."

87. That the scheme should have to rely, for even a perception of success, on such a premise, the authors, rightly in my view, characterised as "hardly likely to inspire confidence in the NSW criminal justice system."

88. It was recommended that the scheme be abandoned. The present appeal, in my view, supports many of the misgivings expressed by the authors:

* Magistrate Burns gave a sentence indication, not on the facts ultimately relied on, but on a version somewhat less favourable to the appellant than those facts.

* The sentence indication itself demonstrated such disparity as to constitute an inducement to plead guilty rather than a reflection of the appropriate discount for an earlier plea, on the mistaken premise that a plea of guilty, if then offered, represented a greater degree of remorse than had been demonstrated to date. Even without that error, the disparity remains unjustifiable.

* The rejection of the sentence indication, led to the sentencing Magistrate being placed in an unacceptable dilemma. That dilemma was exacerbated by the failure of counsel to more precisely agree on the version of the facts to be accepted for the purpose of the plea, leading her Worship to assume facts not proved or accepted.

* The revelation of the sentence indication, without detail as to the facts on which it was based, supports a perception, justifiable on the part of the appellant, that her Worship was accepting the upper limit of the proper sentence as realistic even though, if imposed, it would have been manifestly excessive in any event.

89. Thus, it seems to me, the proceedings before Magistrate Doogan were irrevocably tainted by the inappropriate sentence indication of which she was informed.

90. Not to have informed her Worship of the indication, of course, might well have led to a valid ground of appeal if the subsequent sentence was to be perceived, with due allowance for the later plea, as more severe than the indicated sentence.

91. Indeed, that was the case here. Even though, on the version of the facts accepted by Magistrate Burns rather than the less adverse version before Magistrate Doogan, the timing of the plea could not justify the difference between four months of periodic detention and three months full time custody. The apparent disparity is further exacerbated after account is taken of the fuller explanation of the personal circumstances of the appellant placed before Magistrate Doogan

92. I also expressly reject the respondent's submission that her Worship was entitled to doubt the appellant's contrition by reason of certain remarks in the pre-sentence report.

93. First, her Worship accepted the contrary. She expressed herself as satisfied that the appellant was truly contrite Second, the pre-sentence report cannot be construed as suggested by the respondent. To quote p4 thereof:

"Mr Thionnet presented as a co-operative young man, of average intelligence, who was clearly contrite."

94. It follows from the above that the sentence imposed cannot be sustained and must be set aside.

The just and appropriate sentence

95. The author of the pre-sentence report, it seems to me, accurately reflected the situation when he noted:

"It appears that the offender has, on this occasion, allowed himself to become involved in an altercation which by all accounts had little to do with him. He acknowledged that he should have encouraged his girlfriend not to attend the home of the victim, and in any event, should not have accompanied her."

96. The appellant has, the report notes, since ceased his association with her and (though recently) all drug use.

97. An aggravating factor was that the offender was, at the time of the offence, under supervision on probation. However, that was for a property offence. He had no record of violence.

98. Those factors, and the fact that he placed himself at the victim's premises, would prevent a conditional discharge without the recording of a conviction. A course which counsel for the appellant, somewhat optimistically, urged upon me.

99. There must be a conviction recorded. In my view, the appropriate sentence is that, without proceeding to pass sentence, the appellant be released forthwith upon giving security, self in the sum of $500, to be of good behaviour for 6 months from today. It is a further condition that he accept the supervision on probation of the Director, ACT Corrective Services, or such nominee as the Director may from time to time appoint, and to obey any reasonable directions.

100. The appeal is allowed. The sentence imposed set aside. In lieu thereof, the sentence pronounced above is substituted.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date:21 December 2001

Counsel for the Appellant: Mr C Everson

Solicitor for the Appellant: Saunders & Co

Counsel for the Respondent: Ms M Jones

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 4 April, 1 November 2001

Date of judgment: 21 December 2001