The limited value of specified sentence discounts

In Sharkey v R [2010] VSCA 273, one of the recent flurry of non-precedential appeals, Ashely JA remarked that

... this is yet another instance in which, despite an early plea of guilty and accepted remorse, a sentencing judge made a s 6AAA declaration which reveals, on its face, a minimal discount in the sentence passed in recognition of the plea. The revealed discount is indicative sentencing error. But it is unnecessary to decide whether, on that account alone, the sentencing discretion should be re-opened; because the respondent accepts that the sentence passed on the count of armed robbery was outside the range.

In contrast, the Court of Appeal in Scerri v R [2010] VSCA 287, the Court rejected a ground of appeal that the judge erred by imposing a discount of only 20% for a plea of guilty. The Court stated (footnotes omitted):

The second part of the ground contends that the allowing of (only) a 20 per cent discount for the plea of guilty constituted specific error. Such a contention cannot be maintained. There is nothing in the language of s 6AAA to suggest that Parliament intended, by enacting that provision, to introduce into the law of sentence appeals a new category of specific error based on the (in)adequacy of the sentence discount given for a plea of guilty.
The establishment of such a category of error would be a radical departure from established law. Sentencing judges are required to synthesise a large number of factors in order to arrive at an appropriate sentence. A plea of guilty is one of those factors. Judges are not permitted to take a starting-point and then add or subtract periods of time representing aggravating or mitigating circumstances (as the case may be). Accordingly, it is not to be supposed that in arriving at the sentence the subject of this appeal his Honour deducted a specific period for the plea of guilty. There is, as a result, an inherent artificiality in the requirement which s 6AAA imposes on sentencing judges, to revisit sentences which are the product of an instinctive synthesis and state the sentences that would have been imposed absent one factor, the plea of guilty.
24 What matters for present purposes is that the ‘discount’ – that is, the difference between the notional sentence and the actual sentence – is not examinable for specific error. As this Court said in Burke:

A complaint about the sentence discount ... identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.

In other words, a complaint about the discount for the plea of guilty can only ever be a particular of a ground contending that the sentence was manifestly excessive, that is, outside the range reasonably open to the sentencing judge in the circumstances of the case. What Buchanan JA said in R v Howard should not be taken to have suggested otherwise.

The reference to Buchanan JA's remarks in Howard is curious for what it leaves out. In Howard, the ground of appeal focused on an issue of parity - All the offenders pleaded guilty at a similar time, yet the appellant received a stated discount of 16.7% compared to his co-offenders, who received discounts of 33.3% and 37.5% of the head sentence. The court allowed the appeal, Buchanan JA noting that the disparity of discounts indicated that the judge gave insufficient weight to the value of the plea. Alas for the appellant, the end result wasn't much better, as the court only shaved 3 months off the non-parole period. It corrected the error by increasing the 'but for' statement under s6AAA. In contrast to the approach Buchanan JA took, Nettle JA in his brief concurring judgment stated:

For a judge to give too much or too little weight to a sentencing consideration is not necessarily sentencing error but where it is manifest, as it is here, that a sentencing judge has grossly undervalued the importance of the discount for pleading guilty, it may be viewed as sentencing error and the sentencing discretion re-opened.

The Victorian approach is in marked contrast to the New South Wales approach where, without any legislative backing, the Court of Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 laid down a general rule that the utilitarian value of an early guilty plea should usually be in the range of 10-25%, depending primarily on the timing of the plea and encouraged sentencing judges to quantify the value of the plea. Quantification of the appropriate discount is a recognised ground of appeal in New South Wales. For example, it took little effort to find a case such as Trujillo-Mesa v R [2010] NSWCCA 201, where the court considered also considered an argument that a 20% discount was inadequate:

I am of the view that a discount of 20% was within the range of an available discount in the discretionary sentencing exercise, even if it may have attracted a more generous discount by a measure of an additional 5% by another sentencing judge. It was not, in my view, so unreasonable an exercise of the sentencing discretion as to warrant intervention by this court

On one level, its easy to see why the Victorian Court of Appeal would set its face against allowing a specified discount to be a ground of appeal for specific error. Where the sentence itself is within range, why should the discretion be reopened because the judge erred by giving too large a discount off a manifestly excessive starting point? Similarly, if the discount was too low, but the starting point was also too low, the two effects would cancel out and the end result is within range.

The problem with this approach is that it seems to involve a mischaracteristaion of the difference between specific error and general error. The classic statement on review of discretionary decisions (which includes sentencing decisions), House v R (1936) 55 CLR 499 explains that:

But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred

While sentencing is recognised as an intuitive synthesis of all the relevant factors, the statutory requirement to quantify the discount given to a guilty plea would seem to change the nature of any error related to the value of the plea. While arguments about weight are usually merely a particular of an argument that a sentence is manifestly excessive or inadequate, the quantification of the discount allows the court to be more specific. In contrast to the final sentence in the extract from House (above), the nature of the error is discoverable, and so the court should be prepared to re-examine the sentence. Contrary to what the court said in Scerri, it makes more sense for the distinction between specific and non-specific error to lie in whether the error can be readily discovered and quantified, or whether it must be inferred from the end result. A clearly erroneous s6AAA statement falls into the former category and should be treated as a form of specific error.

The better solution, rather than relegating the specified discount to a matter that, even if wrong, does not give rise to a remedy, is found in s278 of the Criminal Procedure Act 2009. That section, while notionally meant to codify existing practice, imposes a two stage test the Court of Appeal must apply when assessing a sentence. It may only allow an appeal if satisfied that there is error in the original sentence AND that a different sentence should be imposed. In Yusuf v R  [2010] VSCA 266, the court explained that

Moreover, in the scheme of things, such errors as there may be are relatively insignificant. They do not appear to have had any bearing on the total effective sentence or non-parole period. They are simply something for the appellant to seize upon to have this court examine his sentence afresh. If this were an appeal under s 278 of the Criminal Procedure Act 2009 that would not be so. It is only because the appeal is brought under s 568 of the Crimes Act 1958 that we are saddled with that consequence. The few errors which have been identified imply that “a different order” should have been made in respect of at least some of the individual sentences. And in the way in which s 568(4) has been interpreted, the result is to “re-open the sentencing discretion”. Thus we are bound to approach the task afresh.

In appeals where section 278 applies (sentence appeals where the sentence was imposed after 1 January 2010), the court won't need to re-open the sentence discretion because of an inadequate or excessive guilty plea discount. Instead, the court will examine the ultimate sentence to decide whether a different sentence should be imposed. In a sense then, everything will become a particular of a ground of manifest excess or inadequacy and whether the discount was right or wrong won't matter if the the judge reached the correct result. However, this process seems to provide a more conceptually sound reason not to scrutinise the quantified discount to closely than to say that it is not something that can be examined for specific error.