Black v R [2022] NSWCCA 17
Black v R [2022] NSWCCA 17 · Read the judgment on AustLII
Catchwords: Sentencing – EAGP matters – discount for plea of guilty – alternative charges
What is the appropriate discount in a matter on indictment if a defendant offers in the Local Court to plead guilty to an alternative charge which is on the charge certificate, but that offer is not accepted by the prosecution until the matter has already been committed for trial? In this case, the CCA has held that the mere fact that the charge appears on the charge certificate as an alternative to a principal offence does not matter – the ‘subject of the proceedings’ is the principal offence, so the offer should be given its full effect (meaning, in this example, a 25% discount).
The applicant was charged with murder. Unsurprising, then, that in the Local Court murder appeared on the charge certificate. But the certificate also explicitly specified manslaughter, in the alternative (the common law automatically renders manslaughter an alternative to murder). The applicant offered to plead to manslaughter in full satisfaction of the indictment, but the Crown rejected that offer; the applicant was committed for trial. He offered it again at arraignment and again it was rejected (he actually went one step further and entered the guilty to manslaughter at arraignment, but he was eventually granted leave to withdraw that plea). He offered it yet again after a jury had been empanelled in the trial, and this time the Crown accepted it. The sentencing judge determined that because manslaughter had been on the charge certificate, he was not entitled to the full 25% discount.
The Early Appropriate Guilty Plea (‘EAGP’) regime which was introduced in 2018 has imposed a strict legislative regime setting out mandatory discounts for pleas of guilty in matters on indictment. Crimes (Sentencing Procedure) Act s 25D provides for the discounts where an offender pleads guilty to the an offence in a typical case (i.e. where it is accepted, at any one of a number of points in the process). Section 25E of the same Act provides for discounts where an offender makes an offer which is not accepted, but either the prosecution later changes their mind, or the offender is subsequently found guilty of the offence that they offered; basically, the offer locks in the discount at the time it was made, provided it meets the legislative criteria. Offers have to be recorded in a ‘negotiations document’, which, in the Local Court, is known as the ‘Case Conference Certificate’. The history and background to the legislation is set out in a little more detail at [7] to [14] of the judgment.
As succinctly observed by Simpson AJA (with whom Ierace and Dhanji JJ agreed) the only issue in this appeal was the applicable discount as a result of the applicant’s plea of guilty. But so to state the issue disguises both its complexity and its importance (at [1]).
Given that this question is purely a matter of statutory construction (see [6]), and descends into detail about the use of the ‘definite article’ in some sub-sections, but the ‘indefinite article’ in others, it is hard to do the detail justice in a summary.
The critical question was identified as being whether in this case manslaughter was a ‘different offence’ for the purposes of the section, and therefore ‘not the offence the subject of the proceeding when the offer was made’ (at [26]). The sentencing judge had held that because manslaughter was identified in the charge certificate and the case conference certificate as an alternative to the count of murder, it was therefore ‘the subject of the proceedings when the offer was made’, so the offer was not to plead to a ‘different offence’.
Finding that the sentencing judge erred, the CCA adopted the reasoning from another Supreme Court decision, to the effect that an offence specified in a charge certificate only as an alternative to a more serious offence certified in that charge certificate is not the subject of the proceedings when the offer was made. That reasoning derived from careful parsing of the language of the statute itself, without resort to other principles of statutory interpretation (at [32]-[33]).
The CCA rejected an argument by the Crown that manslaughter was not a ‘different offence’ because it was expressly nominated in the charge certificate and the case conference certificate, and included as a proposed alternative to the principal charge of murder. In other words, the Crown argued that if a charge is nominated in the charge certificate, then it is the ‘subject of the proceedings’, even if it is an alternative charge. The Court considered this an ‘unattractive argument’ (at [40]). The discounts prescribed in s 25E are intended to operate as an incentive to offenders to offer realistic pleas of guilty. To deny a reduction to an offender who has offered a realistic plea merely because the charge is specified as an alternative in the charge certificate would be to undermine the purpose for which the reduction is prescribed, and may produce unfairness (at [41]).
Two other issues arose for consideration, more or less obiter. The first was the question of whether, if an offer is made, it is possible (or necessary) for a magistrate to accept a plea to the alternative offence and commit the defendant for sentence on that charge, but also commit them for trial on the principal charge. The Court here considered that the idea of being committed for both trial and sentence on the one set of facts was novel in criminal procedure, and there was no indication in the legislation that this was intended. Accordingly, it would be quite inappropriate for a magistrate to accept a guilty plea to an alternative count where the prosecution proposed to proceed to trial on the principal count (at [48]-[49]).
The second question was whether the Crown ought to list alternative offences (however arising, whether by common law or statute) on a charge certificate. The court considered that whether potential alternative charges should be listed on a charge certificate and / or noted on a case conference certificate will depend on the circumstances of each case. But what is clear is that the entitlement of an offender to a specific discount does not and should not depend on the exigencies of the identification of potential alternative counts on either of those documents (at [51]).
It followed that in this case the discount had been wrongly set at 10% when it should have been 25%. This was a a mathematical change which the CCA corrected after allowing the appeal, resulting in a reduction of the total sentence by 13 months and 2 weeks, and a reduction of the non-parole period by 9 months.