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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-09-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 1 passed.

Clauses 2 to 6 passed.

Clause 7.

Ms CHAPMAN: This is the provision for the reduction of sentences for guilty pleas in the Magistrates Court, which is covered substantially in the new section 10B, and then the reduction of sentences for guilty pleas in other cases in the new section 10C. This is the provision which sets up the regime for graduation of discounts and, although I did not cover it in detail in the second reading, in essence there is the maximum discount of 40 per cent if the plea is entered within four weeks of the defendant's first scheduled appearance.

We then move to a 30 per cent maximum after four weeks of the first scheduled appearance but before four weeks of the next date. There is 20 per cent, which is available in higher courts, after committal of up to 12 weeks from the arraignment date set at the committal. Thirty per cent is the 'beyond control' circumstance. It is 30 per cent also for court-related delay. It is 15 per cent when there is a legal argument in a higher court, in particular, in the period of seven days following an unsuccessful legal argument by the defendant. It is 10 per cent for the 'good reason' provision. My question is: what is the basis for the formula of discounts in the bill ranging from that 10 per cent to 40 per cent?

The Hon. J.R. RAU: There are a couple of things operating simultaneously here. The first one is that each of the courts—that is, the Magistrates Court on the one hand and the superior courts on the other—have their own internal dynamics, which concern the way they list and their responsibilities under various acts. For example, committals are dealt with by the Magistrates Court. So, the first fork in the road, if I can put it that way, is between the Magistrates Court and the superior courts.

Ms Chapman: I do not have a problem with that.

The Hon. J.R. RAU: You are fine about that?

Ms Chapman: It is just the range.

The Hon. J.R. RAU: The numbers are broadly based on what practice should be here now. It is broadly based on what goes on. That is not to say that in some instances it is not greater than 40 per cent, because I happen to have seen today a case where the magistrate actually did give a greater than 40 per cent discount for an early plea, and for no other reason, and there are cases where—

Ms Chapman: Getting in early, it's called.

The Hon. J.R. RAU: Yes, but this was not a very early plea. This was like—

Ms Chapman: Get in early before the legislation.

The Hon. J.R. RAU: Yes, indeed; fair enough. The example I am giving, it was not within the first four weeks and the magistrate gave something like a 70 per cent discount for a plea of guilty. I will provide a copy of the case to the honourable member in due course. There are cases now where people are getting more than 40 per cent, and they are getting it for pleas which are much later than four weeks after their first appearance. We are trying to bring some degree of uniformity into the process.

If you are in within the first four weeks, having regard to the fact that that will mean that victims are not put through a lengthy waiting process, witnesses are not put through the difficulty of having to be questioned and interrogated by police, the courts and the police are not put through the labour-intensive exercise of having to prepare cases, and the courts do not have to set aside time for those things, I do not think 40 is a bad outcome, particularly given the fact that, as I said, there are cases now where people are getting more than 40 for late pleas. This is a very, very early plea.

I know there was a discussion today when the honourable member talked about some places are 30 and some places are 45. That all needs to be seen in context. How early are they getting the 33, the 35 or the 30 for that? We are saying really, really early you get 40. Once you are outside that period it is down to 30, which is below the 35 the member was talking about for Sydney, or wherever it was, and it is in line with the 30 that was talked about I think in the context of the UK and other places. So, all but four, pretty well, you are charged: 'Okay, I did it, don't bother preparing the case, you've got me, Guv'nor.' Pretty well anything other than that is 30, not 40, and then it is a maximum. It is not a minimum or a mandatory number, it is a maximum number.

We are actually pretty tough on it except for the people who actually know they have done it and decide, 'Well, look, we're just going to get this over for everyone's point of view.' Those few people who do so really quickly have got a maximum of 40. The rest of them are looking at 30. Then we thought, okay, we have got to grade this down so that the later the person offers the plea the less benefit they get from offering the plea.

However, we acknowledge in the legislation that sometimes the reason they are late in making a plea is not all their fault, they are not just trying to spin the system out. They might find, for example, as the honourable member mentioned in her remarks earlier, that out of nowhere comes a witness nobody has heard of before, halfway through. Things have been percolating along for six months and all of a sudden the witness comes out from nowhere. At that point the accused person says, 'Righty oh, I'm going to have a plea.' Well, if that is what they do, they should not be penalised by the fact that they were relying on the evidence as they understood it to be before they made their call.

We have attempted to incorporate into the system late intrusions into the case which are not the fault of the accused person, and that includes if the prosecution has not got their act together for whatever reason, it includes if the court makes some stuff up, for example, there is a listing and the listing is lost and then the person's time gets bumped out for many, many months. If it has nothing to do with the accused person but all to do with the courts, then again the provisions we have got here say the person will not be disadvantaged by reason of not having made a plea leading up to that. We have attempted in every way to do that.

Contrary to my preference, after listening to all of the feedback that we have had, we are still saying at the very end that if somebody turns up on the day of trial and makes a plea of guilty they can still get up to 10 per cent. My view is they should not get a cracker, but the fact is I have listened to the feedback that I have received from the opposition, the Law Society and various other people, and I am content to leave that with the trial judge. The short answer again to your question is that these numbers broadly correspond with what we think should be happening now.

It is just that we want to get some degree of uniformity into the system and, at the same time, we do not want to unfairly penalise an accused person who, for good reason, has not made an early plea. That is why we have put in these exceptions about it not being their fault, that it is the prosecutor's fault or it is the court's fault, or something else. We have attempted to address that concern. That is why those two provisions, 10B and 10C, are quite lengthy, because they attempt to canvass those issues.

I point out to the member for Bragg that there are people out there who are quite content to see the wheels spin until the very last minute in case the witnesses die or somebody cannot turn up, or the court is struck by a meteor, just to see what will happen, hoping that somehow it is all going to fall over and they will get off. Then, when they realise all of those sort of fantasy options have gone away, they say, 'Okay, you got me,' and plead guilty.

Those people are not helping the system; those people are playing the odds. They are saying, 'Okay, I'm going to treat this particular exercise like a night at the casino, and I'll play them right down to see how far I can go before I have no options left.' Those people, in my opinion, do not deserve the system to say to them, 'Well, thanks very much, you pleaded guilty,' because they are not getting with the spirit; they are not with the program at all. They are just trying to play the game for all it is worth and to chisel any advantage they can out of the system. That is fine—they are entitled to do that—but, if they do it, they should not, at the end, be rewarded for it as well by a big discount for having attempted to play the system to its nth degree and the attempt does not come off.

Why should another person, such as the person who is hit with a summons who turns up in court on the first day and puts up his hand and says, 'Okay, I did it,' not get a decent discount for that? Why should it not be a substantial matter on the mind of the magistrate or the judge hearing that matter so that they consider that that person, first, has been contrite and honest with the court and, secondly, has saved all the witnesses, the victims—everybody—the whole trauma of being involved in this stuff. They are actually doing the sort of thing one would hope that citizens who have committed an offence do, which is to acknowledge their offending and say to the court, 'We acknowledge our offending. We are contrite; we plead guilty.'

I think it is miserable to say that a person who goes through that process within four weeks should not at least be able to be considered for up to a 40 per cent discount, and that call is, of course, in the hands of the judicial officer, not in my hands. This is not a mandatory discount; it is a maximum discount.

What we have attempted to do is to set a graded scale. Forty per cent would be possible in very limited circumstances. The others are well within the numbers the member for Bragg quoted before. It is always in the discretion of the court. We have let-outs for the accused person who is caught by surprise by a point of law coming up or a delay in the court structure, or a late witness turning up courtesy of the prosecutors.

In all those circumstances, this will add some uniformity, some clear guidelines, so that the courts, the defence bar and the prosecutors around town know how the system works and some of the anomalies. As I have pointed out, I have seen one where the discount for a plea—it was not even an early plea—was I think about 60 or 70 per cent. They will not be happening either; that is the whole point of this.

As I emphasised before, this is about a person who is cooperating with the authorities to the extent where they plead guilty. We have the business there about the Bevan von Einem person who pleads guilty, shocking the public conscience. I know the member Bragg referred to that in her remarks; that is there for a reason, too. We are not going to have Mr von Einem or somebody else putting up their hand on day one and getting a massive discount on their sentence because that has to be considered as well.

But for ordinary offenders who do not step right outside the bounds of what is, by any civil standard, conduct that is capable of being accepted, this gives them some idea of what is going on. It gives their defence lawyers some idea of how they can advise these people. It gives prosecutors some idea of how they engage with the defence bar, and the whole thing is set in the context of the listing procedures of the Magistrates Court and the current listings procedures of the superior courts.

Ms CHAPMAN: I take your point on how you have picked out the 40 per cent. We may disagree on whether or not that is appropriate, but nevertheless, you have looked around and seen what is there, and have some measure of what you think should be the statute bar on the discount available. Stage 2, which is the 30 per cent rule, is a bit of a hybrid of what is around, but it does not seem to explain where you got the 10 per cent and 15 per cent from.

If this is from current practice—which was what I thought you were saying, but then I got the impression that this was something you have guessed would be reasonable—I am just trying to identify where this has come from. Have you done some assessment of the cases? There is no data being presented in your second reading speech to say why, if there has been something at the last minute, a very late plea, that there is still some good reason why it should be barred at 10 per cent, other than you think it might be reasonable. I am trying to understand the basis for which the graduation amounts have been set.

The Hon. J.R. RAU: I have discussed these matters with officers in the Attorney-General's Department who are far more knowledgeable than I about the way the case law has developed in terms of the provision of discounts for early pleas. I have also conversed with the courts, which obviously have their own practices in relation the discounts and pleas. Broadly speaking, what I have presented to the parliament is in line with what, I guess, is the synthesis of that.

The member for Bragg would be more aware about this point than probably anyone else in the parliament; that is, this thing is more an expression of art than an expression of science, in terms of the way the courts go about doing this. What I have attempted to do is to try to draw those trends within the different courts into some sort of cohesive, single, uniform code, so that there is more uniformity between the courts. The uniformity I am asking them to comply with is broadly where they say they are presently putting themselves anyway.

As I said before, I have examples of where they have put themselves nowhere near this, but this is what they are saying, in the broad, is a reasonable solution. I had an argument with the courts and the Law Society about the 10 per cent, and I have made no secret of this from day one. The courts have said that they did not like the plea on the doorstep not being able to get anything at all.

I have always had the view—and I continue to have the view—that if you cannot get your act together by the first day of the trial and you have no other extenuating circumstance (such as, on the first day of trial, a mystery witness pops out of somewhere or, on the first day of trial, DNA evidence pops out of somewhere or, on the first day of trial, something else completely unforseen happens—I am fine with that) and you are just sitting there playing the odds until the first day of trial in the hope that the key witness is going to have a heart attack or something and you might luck out, I cannot see, for the life of me, why you should get any credit at all for pleading guilty.

I have decided to compromise on that, and the compromise that has been urged on me by the Law Society and the courts is a maximum of 10 per cent, and I have said, 'Okay, fine; I don't like it, I think you are being soft, but if that is what you want—if that is what you reckon is a fair thing—okay, I'll live with it.' And that is why you have the 10 per cent there. I promise you, that is not my idea; mine is zero—take the '1' out and make it zero. If you want to amend it in that respect, I can foreshadow that I would support the amendment in the other place, but that is just a hint. But that is what they want.

I have talked to the courts about this so much. There would be some people in the courts who would say, 'Don't do this, you are codifying our discretion,' but I do not want there to be too much mystery about how this works. I would like an offender to know what they can expect because it is written in black and white in this legislation. I would like the judges and magistrates to know what the expectation of their conduct in relation to acceptance of guilty pleas is because it is written in the legislation and, if they are stepping out of line, because it is in the legislation and not just an exercise of discretion, it would be reviewable.

I think it makes the whole show much more transparent. It means that everybody knows where they are going and the more certainty, clarity and transparency we can put into this process, the greater the chance is that people will just nut out where they are sitting in the spectrum and they will just do what they need to do.

Ms CHAPMAN: Is there any other jurisdiction that has a graduated system, if I can describe it as that, like you have created after that consultation?

The Hon. J.R. RAU: I am advised that New South Wales had a version of this but it was extremely prescriptive and complex, and what we have attempted to do is simplify it. This is more complex than it started out being, as the member for Bragg might recall, because I have taken on board all of the nuances that everybody has asked me to take on board. The original version of this was a far more streamlined, elegant little thing, which I would have much preferred. But I am the kind of chap who listens to conversations. I listen attentively to whatever the member for Bragg has to say, I listen to the Law Society and I listen to the judges, so this has become more complex. But I am advised that the New South Wales iteration of this is a far more complex beast. It is more complex than I would have liked but it has got this complex because of people raising issues.

Ms CHAPMAN: Of course, one may take the view that it has become more complex because of the edict that has been issued by the Attorney-General in the first place and then, it having been rolled in the Legislative Council, it had to go back for some amendments but, insisting that they have this graduated system, we have now ended up with what we have got.

However, my next question is: does the good reasons in clause 7, that is, section 10C(2)(f), include the avoidance of further victimisation of victims and witnesses by avoiding a trial, or is this limited to the defendant's conduct during the proceedings?

The Hon. J.R. RAU: This is one example of where I was very keen, and sought advice about this, to leave it entirely to the discretion of the court without being prescriptive. As far as I am concerned, the court will hear whatever submission anybody wishes to put to the court about that matter and it will be a matter for the court to determine whether that has any weight.

Ms CHAPMAN: Finally, on the matter of the case that you have mentioned today, Attorney, of apparently a judgement in which a sentence has been handed down providing for a 70 per cent discount—

The Hon. J.R. Rau: Don't hold me exactly to 70 per cent but it is in that order.

Ms CHAPMAN: Very high.

The Hon. J.R. Rau: Yes, very high.

Ms CHAPMAN: —and your proposed limit—I have not read the judgment and I am not familiar with it and I note the Attorney's kind invitation to provide me with a copy of it—I assume from what you have said in commentary, firstly, it would not have been allowed, of course, if this legislation had passed.

The Hon. J.R. RAU: Correct.

Ms CHAPMAN: And you clearly would have some problem in that case—whatever the details were, I don't know—in there being a substantially greater discount offered, apparently, way outside of the four week time that we are talking about.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Having not read the judgement, I am not privy to whether there had been some factor that had weighed on the magistrate's mind to offer such a significant discount. Do you agree that there are cases where it is more than the usual 30 to 35 per cent that has been quoted as the average, that there are circumstances where this ought to be able to apply, and here is (today) an example of where that has occurred? You have read the judgement, I have not. You are in a stronger position.

The Hon. J.R. RAU: A couple of things. First, there are some cases where none of this should ever apply and those are the cases we have already talked about where the public conscience would be shocked if this sort of thing were to be applied.

Ms Chapman: What, any discount?

The Hon. J.R. RAU: Any discount.

Ms Chapman: I am talking about big discounts now.

The Hon. J.R. RAU: Yes. You are asking me about the 40 per cent discount. With respect to the 40 per cent discount can I say this: the case to which I am referring has been corrected on appeal and one of the reasons for the correction referred to by the appeal court is the fact that the concession offered for an early plea (and it was not that early) was way too high. So, it adds some clear objective evidence to my case that there are cases out there now where the wrong thing is being done because people are getting much bigger discounts than they should for no good reason. Not only is their plea not really early, but it is not as if they have provided the whereabouts of Dr No's headquarters, or something, to the police. That is the bit we are going to deal with.

Members interjecting:

The Hon. J.R. RAU: Member for Norwood, who is not in his seat, Dr No was a very famous person when you were very young, as you would probably know, or perhaps even before you were very young. Goldfinger is another one you can look up on your iPad. They were both very bad people.

Mr Marshall interjecting:

The Hon. J.R. RAU: A very good year: the Tet Offensive. The situation where we should be looking at very big discounts, outside the framework we are looking at now, is the next bill. This bill is not trying to deal with the case where somebody has come forward and offered exceptional cooperation to the police which has resulted in the police being able to crack a big crime gang, or something. That is not what this bill is about. This bill is about somebody who says, 'I am going to plead guilty,' and we are asking, 'Okay, in what context are you pleading guilty in terms of the information you had available to you and at what point in the time line between when you were charged and the first day of trial?' That is all this is dealing with.

I will provide the honourable member with the case because it illustrates the point I am making. At the moment, there appears to be some lack of understanding, if that is a neutral way of putting it, in the minds of at least some judicial officers about what they should be doing, given the current apparent knowledge of what the tariff should be for early pleas. This will take all of the guesswork out of it because all they are going to have to do is open this up and it will tell them.

Ms CHAPMAN: Except that the case in question of today's deliberation having been identified as being corrected on appeal in fact has exactly corrected an apparent error. The common law says, as to the taking into account of that consideration and if there has been an appeal that the sentence was manifestly inadequate as a result of giving too much weight to the early plea, or late plea as you would say in this instance, that in fact it does work under the current system and it has been corrected. In fact, if a magistrate, even with this act, were to grant a provision for that it would be appealable, and quite rightly so because it would have failed to comply with the legislation. Frankly, I do not—

The Hon. J.R. RAU: You really need to read the case because—

Ms CHAPMAN: I am happy to read the case.

The Hon. J.R. RAU: —it did not get up on this basis. I have introduced this. I will give you the case to read and we can have a chat about it, but bear in mind that for the prosecution to appeal in a criminal case is a pretty high bar. You have to get to the point where you are establishing that the sentence is manifestly inadequate. Not only that, you have this Everett business about double jeopardy and God knows what else that has to be drawn in.

It is only in rare circumstances where the DPP even believes that they have the opportunity of being able to pursue a crown appeal, and then they do not get up on all of them anyway. In the particular case I am referring to, which I will share with you tomorrow, the DPP did get up on a crown appeal. Incidentally, it was because the appeal was against the head sentence, not against the discount for guilty plea, that was a peripheral matter that was raised as they went along and, as a matter of obiter the court said—and, by the way this was a big over-concession to this character for pleading guilty, a big over-concession—but that is not what the whole case was about, that was just a by the bye.

Ms CHAPMAN: The Attorney indicated that, whilst they did not have the 2011-12 data, the information that you did have was in draft form. Can the Attorney provide us with what that data was?

The Hon. J.R. RAU: My office is chasing up with the DPP and the courts as to whether they have draft material which would be contained within their report this year for the year that the member for Bragg is more interested in, but their report is not due out until later this year. I do not know exactly when. We are making inquiries of them. If they have that particular material digested now, and if they have it and I can have it, I am happy to share it, but it is not something I am holding.

Clause passed.

Remaining clauses (8 and 9), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:42): I move:

That this bill be read a third time.

Bill read a third time and passed.

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