Despite this brief history of gradual acceptance of sentence indication processes, the higher Victorian courts have been generally cautious about sentence indication. They have cited concerns about judicial independence, the risk of plea bargaining and the involvement of the judge in an accused's plea decisions. Guariglia v R [2010] VSCA 343 is the latest example of this caution.
The facts of Guariglia
Following an abortive trial for armed robbery, attempted armed robbery, conspiracy to commit armed robbery, theft, false imprisonment, the trial judge (Judge Douglas) made the following comments ostensibly to defence counsel, though it looks like they were really aimed squarely at the accused:
I don’t really talk to accused, but I always like to make clear what I’m saying to the barrister clear to you. In this trial, there were a number of witnesses. There was Mr Reid and Ms O’Brien – who we’ve only had a little bit of evidence from – and the two young fellows. I don’t decide if anyone is guilty or not guilty, my role is to be the umpire, if you like, and decide the law. From where I’m sitting, they were really good witnesses. From where I’m sitting – and I don’t decide it, but I’m just giving you my view, which you can use or not use.Following that decision, the prosecution and defence started plea negotiations. Three days later, the accused entered a plea of guilty and, according to his affidavit, a day later telephoned his solicitor and indicated that he was having second thoughts about pleading guilty.
I thought it was a very strong prosecution case.
Now I want the Crown and the defence to talk about this and other trials, because I’ll tell you what, Mr Williams. If Mr Guariglia decides to plead guilty to this last trial, this is the third – otherwise, it will be the third trial and there will be people – the expense of getting those three serving prisoners giving evidence – and it’s clear to me, the stress they’re undergoing, and whatever one thinks of Peter Reid, he’s undergoing an enormous amount of stress, and the young fellows.
Your client would get a substantial discount – a substantial discount, because it’s not just showing remorse – or it could be showing remorse. It’s the public policy for me – as the judge that sat through two – would be that you would get more than the usual discount for pleading guilty. Your client is not an old man but he’s not a young man, and I reckon that just looking at it from my perspective, as I said, it was a very strong Crown case, and the sentence you would get on trial – which is the correct sentence – would be a substantial one.
When you plead guilty, the law is you must get a reduction, and as I say, having seen what a third trial would do, I know the time and the effort and the expense, and I’m willing to say now, I would give a large discount. Now, your client has already got seven counts he’s going to plead guilty to in that last one – which are the burglaries and thefts – as well as the Torque Tyres. There’s also that Presentment – counsel will have to assist me here. I don’t know it particularly well, but it’s 16 counts, and it may well be one or two trials, and it’s Shauna O’Brien, the accused and Peter Reid and son. Is that right?
The decision
Ultimately, the accused filed an appeal seeking to overturn the convictions entered in reliance on the guilty plea on the ground that the plea was not entered freely and that the judge's remarks constituted improper inducement. On this, the Court of Appeal split 2-1.
The difference in the reasons provided by the two judgments is striking. The majority (Nettle and Hansen JJA) primarily consider four cases on the effect of judicial statements about the strength of the Crown case - R v Turner [1970] 2 QB 321, R v KCH [2001] NSWCCA 273, R v Pinhassovitch (Unreported, Victorian Full Court) and R v Holden [2009] VSCA 254. Based on that analysis, the majority distinguish the two Victorian decisions and uphold the principle in Turner and KCH that an intimation of the strength of the case or likely sentence by a judge is such that it will very likely deprive an accused of a free choice of whether to plead guilty or not guilty. The majority hold that it is not the role of a judge to opine to the accused on the strength of the case or promise a discount for a plea of guilty (still less a substantial discount). As part of this analysis, the majority cite three further cases (R v Gray [1977] VR 225, R v Lawrence (1980) 32 ALR 72 and R v Harman [1989] 1 Qd R 414) all of which suggest that a discount cannot be offered to induce a plea of guilty, without any discussion of whether the operation of the Sentencing Act s5(2)(e), the availability of sentence indication schemes or the requirement to state guilty plea discounts undermine that reasoning. Ultimately, the majority conclude that a plea may be set aside where one factor contributing to the plea was inappropriate judicial pressure and so allow the appeal.
In contrast, the minority judge, Justice Ross, engages in what appears to be a more thorough analysis of the relevant cases. He notes the English and Australian cases that have explicitly qualified or rejected Turner and KCH, such as R v Goodyear [2005] EWCA Crim 888 and R v Pugh [2005] SASC 427. Unlike the majority, he also notes that Pinhassovitch considered and rejected the Turner approach, which was heavily influenced the NSW Court of Criminal Appeal in KCH. In Justice Ross' view,
A plea of guilty must be an exercise of free choice by the accused. Whether or not the decision to plead guilty in a particular case is made as an exercise of free choice is simply a question of fact. The determination of such a question ought not proceed on the basis of some a priori assumption that certain judicial intimations will invariably vitiate a plea of guilty. It seems to me that both Turner and KCH proceed on such an erroneous assumption.Ross AJA also noted that the judicial culture that gave rise to the decision in Turner is very different from contemporary Victorian conditions, where judges have a legislative power to give sentence indications and do take an active role in case management.
Comment
It seems clear to me that the accused was influence in his plea decision by Judge Douglas' views on the strength of the Crown case and on the intimation of a substantial discount for a guilty plea. However, unless one imports the common law principles relating to inducements and voluntariness of confessions, this seems a far cry from saying that he was deprived of the opportunity to freely decide whether to plead guilty. In my view, there are two very striking aspects to this decision. First, the majority view significantly undermines the utility of a sentence indication scheme and the specified sentence discounts provision in Sentencing Act 1991 s6AAA. Parliament has enacted a range of provisions designed to reward early guilty pleas, and in my view, judges should act to give effect to this policy, rather than strictly limit the range of permissible judicial comment to that allowed by the legislation. It seems strange that a party's counsel can advise the accused of the discount for an early plea of guilty, but the judge cannot (except to the extent of indicating whether it would lead to a non-custodial sentence).
Secondly, on the facts here, it is difficult to see that the accused was overwhelmed by the process. This is a person who is apparently so overwhelmed by Judge Douglas' statements that he cannot exercise a free decision of whether to plead guilty and what does he do? He takes three days to decide whether to change his plea, and instructs his counsel to insist that the Crown drop confiscation proceedings against his Holden Clubsport. This is a man about to go to jail for between 9 and 14 years, and he is concerned about his car! It seems to me that the far more likely explanation is that the accused was quite capable of protecting his interests and the plea was entered because, after the judge's comments, he could see the writing on the wall and wanted to take advantage of the good deal offered by the 'large discount'.
Regrettably, the end result of this case is that trial judges will likely be far more cautious about encouraging plea negotiations and will likely avoid statements that telegraph their view on the quantum of an early guilty plea discount.
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