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2 October, 2007  
Guilty first ... trial later

Thankfully the “sentence indication” proposals from Victoria will generate lots of extra legal work. Yet, there are pitfalls aplenty and more than a touch of the Alice in Wonderlands in the sentencing council report

imageIn Alice in Wonderland, the Queen says: “Sentence first – verdict afterwards.” Alice replies: “Stuff and nonsense! ... The idea of having the sentence first!”

“Sentence indication” refers to the practice of judges, prosecutors, defendants and their lawyers getting together to decide what the sentence will be, before they decide whether the defendant is guilty.

The Sentencing Advisory Council in Victoria has just released its final report on Sentence Indication and Specified Sentence Discounts.

Sentence indication occurs when defendants asks the judges what the sentence would be if they pleaded guilty now, and the judge chooses to give an answer. The “indication” can be vague or specific. A commonly sought indication is whether the sentence would involve jail.

“Specified sentence discount” refers to a linked concept. In the context of the report, it means a scheme of preordained “discounts” which are available in exchange for guilty pleas.

Robberies eight years, with “guilty” coupon six years; offer valid for a limited time; offer only available at participating outlets. Enough said about them. Now over to sentence indication.

In criminal cases there exist two possible sentences. One is what defendants will get if they roll over and plead guilty, and the other is what will be imposed if they plead not guilty, go to trial, but nonetheless are found guilty.

In 1995 the Australian Institute of Judicial Administration published Pleading Guilty: Issues and Practices. It quoted the experience of one practitioner who said this is how sentence indication worked about 30 years ago:

“The Crown and the defence counsel would approach the judge in chambers and outline the situation. The judge would give a quote – the main issue was whether the sentence would be custodial or non-custodial. As the process was informal, one couldn’t tell the client that I had seen the judge. Could only say ‘I have a strong confidence that you will receive X type of sentence’ ... This practice fell into disrepute and the practice died in the early 1980s.”

Between you and me, there were a few defence lawyers who did tell their clients they had seen the judge, and had a cosy little private chat about the sentence with the judge and prosecutor, and had come to a deal. I would have thought such a practice would have started off in disrepute – but no, it took time for lawyers and judges to see that there was a problem.

In the 1990s a more respectable version of sentence indication came back, in Victoria, in Magistrates’ Court proceedings. Now the Sentencing Advisory Council wants to extend a version of it to the County Court. The SAC report says:

“Sentence indication has been available in contest mention hearings in the Magistrates’ Court of Victoria since 1993, when it commenced as a pilot scheme in the Broadmeadows Magistrates’ Court … The council found strong support for formalising this successful scheme, to optimise and extend its use. In line with this, the council has recommend[ed] that the Magistrates’ Court Act 1989 (Vic) be amended to provide magistrates with explicit statutory authority to give an indicative sentence.”

Sentence indication doesn’t work so well in the higher courts. The report says:

“Sentence indication has been used only rarely, and then with limited success, in indictable proceedings in the higher courts. A pilot scheme operating in the New South Wales District Court in 1993 was abandoned in 1995 due to concerns about sentencing disparities, and a failure to deliver the promised gains in efficiency.”

The report proposes …

“legislation to authorise [County Court] judicial officers to indicate to defendants, within stringent guidelines, the likelihood of an immediately servable term of imprisonment being imposed if the defendant pleaded guilty at that stage of the proceedings. This recommendation provides statutory authority for the informal process already in operation in summary proceedings and establishes the statutory support for a pilot sentence indication project in the County Court.”

This proposal, if implemented, will create a lot of work for lawyers. The SAC report itself admits that:

“The New South Wales sentence indication process, which operated for just under … three years, resulted in over 30 appeals relating to the procedures governing the conduct of the scheme, and many more concerning the leniency of the sentences imposed. A review of the case law from this period provides a salutary lesson in the many pitfalls to which such a process can give rise.”

My favourite pitfall is the one where the judge indicates a lenient sentence for a guilty plea, the defendant jumps at it, and then the Crown appeals.

(One might ask why the prosecution should not object when the judge indicates the sentence, and not when the judge actually imposes it, but judges like to keep their options open and “indications” are not promises.)

On appeal, if the court increases the sentence then the defendant says: “I never agreed to that.” So then the court has to ask: “Do you want to take back your guilty plea?”

Of course, the defendant says: “Yes please.”

That is what is done, or used to be done in NSW, invariably leading to a defended hearing. This creates yet another level in the Alice in Wonderland scheme of things: Guilty plea first, then trial.


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