Commonwealth specified discounts

The obligation to quantify the discount for an early guilty plea in Sentencing Act 1991 s6AAA has clearly troubled Victorian judges. From the early comments about trying to unscramble an omelette to complaints about it being an artificial exercise, it is clear that judges are uncomfortable with the deviation from the intuitive synthesis required by the legislation. However, its worth remembering that s6AAA isn't unique. Section 21E of the Commonwealth Crimes Act (not to be confused with the Commonwealth Criminal Code), requires judges to quantify the discount for promised future cooperation. This quantification then becomes relevant as a kind of 'ceiling' on an appellate court if the offender fails to provide the promised cooperation.
Last week, the Court of Appeal in Nguyen & Phommalysack v R [2011] VSCA 32, rejected an argument that the quantum of discount under s21E was examinable for specific error. The court considered the recent cases on its refusal to examine s6AAA for specific error and concluded:

51 On this analysis, the contention advanced by PBN’s ground 1 – that the discount for future cooperation was inadequate – can only be considered under ground 2, which contends that the sentence imposed was manifestly excessive. In other words, the question for the appeal court is whether it was reasonably open to the sentencing judge in the exercise of her discretion to impose the sentence and non-parole period which she did, proper weight being given to all relevant considerations including PBN’s past and future cooperation. 52 This is an unsurprising conclusion. As with the discount for a plea of guilty, it would be a radical departure from the established principles governing sentence appeals for the appeal court to review, on the merits, the decision of the sentencing judge on one component of the sentencing synthesis. Axiomatically, an appeal against sentence is an appeal from an exercise of discretion and is subject to the familiar limits on appellate intervention which apply to such a case. A sentence appeal is never a review on the merits. It is not for the appeal judges to decide what they would have done had they been imposing sentence. Rather, assuming no error as to the facts or the law, the question is whether the sentencing judge’s decision was reasonably open in the circumstances.

The court then included an alternate basis for rejecting the appeal:

53 The matter may be tested another way. Were it for this Court to decide for itself what the cooperation discount for PBN should have been, we might have decided that she was entitled to a greater discount than 14 per cent. It is equally possible, however, that we might have viewed the judge’s ‘starting-point’ of 14 years as too low, and that a starting-point of (say) 16 years was appropriate, having regard to the objective criminality and the appellant’s role. If we then decided that a discount of 25 per cent was appropriate given the nature of PBN’s promised future cooperation, the Court would have arrived – by a different method – at exactly the same sentencing conclusion as the judge, namely, a head sentence of 12 years. In those circumstances, the appeal should properly be dismissed, because the conclusion arrived at by the judge was plainly open to her, even though (ex hypothesi) the members of the appeal court disagreed with her on particular components.

I've argued previously that this second approach is the correct way to deal with arguments of inadequate discount, at least where s278 of the Criminal Procedure Act applies. Curiously, as part of its reasoning leading to the first basis for rejecting the argument, the court cited a NSW decision, Chan & Ors v R [2010] NSWCCA 153, which was concerned only with past cooperation. That decision held that a discount of only 5% for past cooperation which was of minimal value was open. The Victorian court did not, however, consider the even more recent decision of Ma v R [2010] NSWCCA 320, where the NSW Court of Criminal Appeal held:

28 His Honour fixed the total discount of 35%, at the bottom of the range suggested by the Crown. On any view his Honour would have erred if he had fixed more than 40%. It is difficult to see that his Honour erred in concluding that the total discount should be 35%, or that only a 6% discount should be allowed for future assistance, in the circumstances. The effectiveness of the applicant’s assistance and its benefit to authorities were matters for his Honour to assess (see R v El Hani [2004] NSWCCA 162 at [73]). He was not bound by the submissions advanced by either party.
29 His Honour’s conclusion in relation to the value of the applicant’s future assistance was that it would be relatively minor, assessing it at 6%. That was a conclusion reached in part by way of comparison to the value of the future assistance of Ms Wang, for whose evidence the applicant could provide only some corroborative support, as was argued for the applicant.
30 The comparisons drawn with the discount given to Ms Wang, do not establish error in the discount given the applicant. Ms Wang also received a total 35% discount, 15% for future assistance, leaving 20% for the combined value of her plea and her past assistance. A view that Ms Wang’s future assistance should be valued at 9% more than the applicant’s, was clearly open on the evidence of their respective roles and involvement in the operation and the evidence which they could each give in Mr Hu’s prosecution and potentially that of Mr Yu.
31 The conclusion reached was obviously open on the evidence, having in mind the electronic and other surveillance evidence available to the Crown and the fact that the applicant had herself never met or spoken to Mr Hu and was only involved in assisting Ms Wang in some of her work, once the drug was delivered to Auburn.

This is hardly the language of a court that is opposed to reviewing whether the specific discount was open. On the contrary, the court engages with the argument about the quantum of the discount on its merits and concludes that, in this case, the judge's decision reveals the sound exercise of discretion.

Furthermore, lest I be accused of being NSW-centric (always a terrible accusation to make against a Victorian), the Victorian practice also appears to be out of whack with the South Australian practice. See, e.g., DPP v AB [2006] SASC 84:

[90] In my opinion, when one stands back and takes into account all of the relevant circumstances, I am driven to the conclusion that the total deduction of 65% was far in excess of what might properly be justified. Furthermore, the resulting sentence of 3 years and 7 months is so low, given the seriousness of the offending, as to be out of proportion to it.

In fairness, I must admit that both NSW and SA have judicially created specified sentence discount schemes, whereas one was imposed on the Victorian judiciary by legislation. I also must admit that I haven't closely examined practices in the other States. However, the differences between NSW, SA and Victoria reflects the very different judicial cultures between the States which are thrown into stark relief when it comes to the role of Commonwealth provisions like s21E. It also suggests that the court's claim in Nguyen at [47] that review of the discount only as a particular of manifest excess accords with orthodox principles must be viewed as a reflecting local practice, rather than nation-wide judicial practice.