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Sentencing in the District Court : Practical Considerations

John Stratton SC
Deputy Senior Public Defender

Introduction

A vast majority (perhaps 85%) of criminal cases in the District Court end up being pleas of guilty to something. Of the matters that go to trial, generally the acquittal rate is about 50%. It follows that sentencing is an extremely important of the work of any criminal lawyer.

The focus of this paper is the practicalities of sentencing, rather than an academic approach.

Obviously many of our clients are women, and many District Court judges are women. In this paper I will not attempt to use gender neutral terminology, because the cost in clarity is too great.


Proof in Sentence Proceedings

At the outset it may be useful to make some observations about proof in sentencing proceedings. Section 4 of the Evidence Act states that unless the court makes an order otherwise, the Evidence Act does not apply to sentence proceedings.

This leaves sentencing procedure in a curious position. If the Evidence Act does not apply, do the common law rules apply, or are there no rules? It has been held that if no direction is made, the common law rules of evidence apply if there is a dispute: Regina v Bourchas (2002) 133 A Crim R 413 esp. at para [55].

It is clear that for the prosecution to establish an aggravating factor, the onus is on the prosecution to establish that aggravating factor beyond reasonable doubt, but for the offender to establish a mitigating factor, proof only has to be on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270.


Reading the brief

The most important part of preparing a sentence matter is to have a good understanding of the prosecution case. You cannot advise your client on whether to plead guilty unless you have read the Crown brief.


The conference with the client

I am firmly of the view that there is no point in attempting to have a conference with the client if you have not read the brief. Nothing is more likely to sap a client's confidence than a lawyer who does not seem to know the details of the case against him. I always try to prepare for a conference in the same way that I might prepare for a hearing. The only exception is when you simply need to introduce yourself to the client and to assure him that you will be out to see him again soon.

At the start of a conference with a client it is important to let the client know that anything he says is 'on the record'; that is, he can't tell you one thing and then say another in the witness box.

Before getting an account from the client, it is important to make sure that the client understands the nature of the charges, and the evidence against him.

If the client wants to plead guilty, my practice is to get a brief life history from him, including of course his account of the offence, and what has happened to him since his arrest. I write this out in prose, rather than as notes, to make sure I can use it as a proof of evidence later.


Should I plead guilty or not guilty?

This is probably one of the questions most frequently asked of criminal lawyers by their clients and is one of the most difficult to answer.

The short answer, of course, is that it is the client's decision. However, it should be a decision informed by your expert advice.

I normally try to present to the client the strengths and weaknesses of the case against him. I try to set out the advantages and disadvantages of pleading guilty. This involves telling the client that a plea of guilty should mean that there is a discount on the sentence which the client would otherwise receive. Failing to so advise a client is a breach of your ethical duties (Bar Rules rule 17B, Solicitors Rules, rule 17B).

However, I usually tell the client that having said all this, if he is not guilty that should be his plea.

There is a degree of doublespeak in all this, but that is unavoidable.

If there has been a change of plea I always get the client's instructions in writing. Those instructions do not have to be in great detail and certainly would not need to be longer than a page. I try to set out the essential elements of the offence in lay terms; for example:

I instruct you that I wish to plead guilty to the charge of sexual intercourse without consent.

I understand that by pleading guilty, I am admitting that I had sexual intercourse with Ann Smith on 1 April 1996, knowing that she was not consenting.



Negotiating with the DPP

It is usually worthwhile to attempt to negotiate with your DPP counterpart to see if the Crown will accept lesser, or a smaller number, of charges. If the Crown accepts pleas to lesser charges, you may be able to argue that you have pleaded guilty at the earliest opportunity: see Cameron v The Queen (2002) 76 ALJR 382.

At one stage it appeared that there was little benefit for an offender to put matters on a Form One, because there was authority to the effect that putting a matter on the Form One only effected the maximum penalty: see for example Regina v Vougdis (1989) 41 A Crim R 125. However the NSW Court of Criminal Appeal has held in Attorney General's Reference No. 1 of 2002 (2002) 56 NSWLR 146 that the effect of putting matters on a Form One is to give them 'significantly lower salience', so it is now in your client's interests to get matters put on a Form One.

If possible, attempt to negotiate agreed facts. If there are agreed facts the Crown should not tender material in the brief inconsistent with the agreed facts: see Regina v Palu (2002) 134 A Crim R 174 at para [21] and Regina v Falls [2004] NSWCCA 335 at para [39]. In relation to the agreed facts, and any other material to be tendered by the Crown, your rule of thumb should be that less is more.

An agreement with the prosecution about the nature of the sentence which should be imposed does not bind the sentencing judge: Ahmad v Regina [2006] NSWCCA 177 esp. at para [23].

There may be situations where the Crown is not prepared to remove from the facts an assertion which your client insists is untrue. Ultimately, if there is an irreconcilable difference over the facts, the solution may be to have a contested hearing on the facts in which prosecution witnesses and your client will have to give evidence. However, normally taking this step is a last resort, because having an unsuccessful factual dispute will erode the benefit which your client would otherwise get from his plea.


The client's record

Always have your client check what the Crown intends to tender as your client's criminal history. From time to time errors are made in criminal records, although it has to be conceded that if there is a difference between your client's recollection and the official record, it is more likely that your client's recollection is deficient.

When you are reading your client's record look for offences of the same type committed by your client in the past, and also check to see if your client was on parole or on bail when he committed the offence for which he is being sentenced.


Pre sentence reports

In the District Court I normally hesitate to ask for a pre-sentence report. The difficulty from the defence perspective with pre-sentence reports is that once the report is ordered you have no control over whether the report is going to be before the court or not. At least with a psychological or psychiatric report, if the contents are of no use, you can decide not to use it. I concede that the other side of the argument is that pre-sentence reports have the added weight that the theoretically unbiased position of the author (a probation and parole officer) lends to the report.

The only time I would normally ask for a pre-sentence report is when a non-custodial outcome is a real possibility, and even then I would consider suggesting that the report should be limited to sentencing options other than a full-time custodial sentence. Given the nature of the charges dealt with in the District Court, for the most part a sentence other than a full-time custodial sentence is not a realistic possibility, so for the most part I would not recommend seeking a pre-sentence report.

Of course a background report must be obtained before a child is dealt with by way of a control order (s. 25 Children (Criminal Proceedings) Act).



Psychiatric/Psychological reports

For most sentencing matters in the District Court, I would recommend obtaining a psychological or psychiatric report. Frankly, a strong argument for obtaining such a report is that at the end of the day, for whatever reason, you are unable to call your client, at least you will have some means of putting a subjective case before the sentencing judge.

The next question is whether it is better to obtain a report from a psychiatrist or a psychologist.

If there are issues about violence or dangerousness to the community (particularly in sexual matters), I think it is preferable to obtain a report from a psychiatrist. Similarly if there is anything about the client's history, or about the facts of the offence itself, which appears to raise psychiatric issues, I would suggest obtaining a report from a psychiatrist.

If there is anything about the client which suggests that he is suffering from an intellectual disability, I would suggest obtaining a report from a psychologist. Sometimes it is not easy to detect that a particular client has an intellectual disability: obvious clues to look for are an inability to read, or a history of attending special classes at school.

Make sure that your expert is briefed with the essential materials which will go before the sentencing judge. In particular, the expert should be briefed with the facts and if possible your client's record. Do not brief your expert with psychiatric or psychological reports which you do not intend to use in court. If your expert refers to old reports (which you do not intend to use) in his report, the Crown may well be entitled to seek access to these reports as a condition of admitting the new report.

Before you serve or tender a report, you should read the report carefully and consider whether the report actually assists your case, prior to the report being served on the Crown, let alone tendered. I have over the years seen many examples of reports tendered on behalf of offenders which should have never have seen the light of day. Warning bells should ring with any report which describes the offender as having 'an anti-social personality', let alone a report which describes the offender as dangerous, or a psychopath.

It is also important to check what the report has to say about your client's account of the offence. The first and most important thing to check is that your client's version of the offence in the report is consistent with a plea of guilty. The second thing to check is that the version of the facts given in the report is consistent with your instructions, that is, what you expect your client will say in the witness box if called.

If you have decided to use a report, wherever possible serve a copy on the Crown prior to the sentence hearing. The observance of this small courtesy, often neglected, is of benefit to both sides. If the Crown is going to object to a report, it is far better for you to know in advance, so at least you can attempt to have the expert available for cross-examination.

If possible, have your client read over the report before it is tendered to make sure that it is factually accurate. I acknowledge that sometimes this is difficult, particularly when a semi-literate client is attempting to read a report full of complex jargon. However it is useful to have the client check the report because it is very easy for a misunderstanding between the expert and your client to lead to errors being made in the report.

Wherever possible, have a working copy of the report available to hand up to the judge. The reason for this is that the judge may wish to highlight or otherwise mark important passages in the report, but may not wish to mark the original exhibit. This is another small courtesy which will cost you virtually nothing but which will earn you judicial appreciation.

Once the report is on evidence, the history given to the expert is evidence of the fact: Regina v Welsh (1996) 90 A Crim R 463. There have been some statements of the NSW Court of Criminal Appeal to the effect that if the offender is not called, statements in these reports have limited weight: see for example Regina v Quatami NSWCCA 353. However if you have decided not to call your client, tendering a report may be the only way to get subjective material before the judge.


Character witnesses

It is preferable to be able to call a character in District Court sentence proceedings rather than to simply rely on written character references. As to written character references, see below.

In calling character witnesses, as in most decisions in defence advocacy, less is generally more. It is better to have one or two good character witnesses rather than a gaggle of less persuasive witnesses. It would be a rare case in which you would consider calling more than two character witnesses.

Naturally it is very important to properly interview any character witness before you call the witness. In particular, it is important to establish the degree of knowledge that the witness has of your client, and what (if anything) your client has told the witness about the offence.


Written character references

Normally it is preferable to call character witnesses rather than simply tendering written character references, but this is not always possible.

As with calling character witnesses, less is more. One or two good character references are better than a large number of mediocre references.

A written character reference must at least cover the following material:

(1) how the witness knows the client;

(2) what the witness has been told about the offence

(3) that commission of these offences was out of character for the offender

The first requirement is that the reference should make clear the extent to which the witness knows the client. A reference by a witness who has not had contact with the accused for many years, for example, should be discarded.

The second requirement is that the reference should indicate that the author of the reference is aware of the nature of the offences to which the client has pleaded. This requirement is very important. It follows that job references and the like, making no reference to the offences, will rarely be helpful.

Thirdly, the reference should hopefully say something along the lines of 'I was very surprised to learn that [the client] has been charged with [the offences] because in my dealings with him I have found him to be a person of a gentle nature....' etc.

If at all possible, have copies of the references available to serve on the prosecution. It is probably unnecessary to serve character references before the day of the hearing (unless they are very lengthy) but give a copy to the prosecution as early as you can on the day of the sentence hearing to give the prosecution a chance to read them. Don't wait until you utter the words 'I tender a number of character references.' to show the prosecutor the references, because this simply wastes everyone's time.

Beware of character references with identical typefaces and/or similar signatures. Some of your clients will not be able to help themselves.


Other written material

It is often helpful to be able to take the sentencing judge to some comparable sentencing cases. Do not go overboard; two or three similar cases will probably suffice. The Public Defenders' web site has tables of cases for many of the offences which frequently come up in the District Court.

Some of you may have access to the graphs for sentences prepared by the Judicial Commission. These can be useful, but the courts have stressed the limitations of this material: see for example Regina v Bloomfield (1998) 101 A Crim R 404. In particular avoid taking into account so many factors that you end up with a very small sample.

Again, if you intend to hand up cases or statistical material, have a copy available for the prosecution.


Should I call the client?

Probably the second most difficult question in appearing in a District Court sentence matter (after the question of whether the client should plead at all) is in deciding whether or not to call your client.

In the District Court in the normal course of things I think it is preferable to call the offender. That is quite different to the Local Court where in general the client is not called. One reason for calling the client is that it is harder for a judge to impose a long sentence on someone he has got to know, even slightly.

One of the most important considerations in deciding whether or not to call the client is your assessment of how the particular judge who is sentencing your client will react to your client. If your assessment is that the sentencing judge will disbelieve your client and use the client's evidence as ammunition to impose a harsh sentence, the client should not be called.

If your client is unable to express any contrition for his offence or offences in a genuine way then, generally speaking, it is unwise to call the client.

If the sentencing judge is one who you believe will react sympathetically to your client, then I believe that in almost every case you should call your client. One of the main considerations is that if you end up with a relatively lenient sentence, it will be easier to hold the sentence in the Court of Criminal Appeal if the client has given evidence.


Calling the client

It is very useful to have a written proof of evidence from your client before calling him.

I normally take a more or less chronological account of the client's life, in particular the time leading up to the commission of the offence. With very young offenders, childhood traumas are very significant. However with older offenders, it becomes more and more difficult to put too much reliance on a difficult childhood. Then deal with the offence itself, and any expression of remorse the client can make. Then deal with anything relevant that has happened since that time: for example, progress in custody, hopes and plans for the future, and so on.

When your client is giving an account of what led him into a life of crime, or to commit a particular offence, he may explain it in terms of particular traumatic events in his life (for example, the death of a parent or a child, or the termination of a relationship).

Be conscious of the fact that the sentencing judge probably has very limited material about the subjective circumstances of your client's life in front of him, but one thing he will definitely have will be the client's record. Nothing will give some judges greater pleasure than cross-examining an offender about a conflict between the accused's account of his life and his criminal history. If the client claims that he only started committing armed robberies in the aftermath of his grief for the death of his mother, you had better be very clear that the date of the offence for his first conviction for an armed robbery occurred after the date his mother died.

One of the advantages of pleading guilty is that if the offender is genuinely remorseful, that remorse may be a very important mitigating factor. Evidence of remorse led by leading questions (for example 'Are you sorry for what you have done?') is in my opinion very unconvincing. I prefer to tell the client in advance that at some stage in his evidence in chief I will ask him to tell the judge how he feels about the fact that he has pleaded guilty to this offence or offences, and that that question will be his cue to turn to the judge and speak from his heart about how he feels. In an appropriate case (not a case with an extremely hostile victim's family) it may be appropriate to ask him to address the victim or his/her victim directly and apologise. I certainly don't believe in writing or drafting an answer for the client to the contrition question.

If your client has been doing well in custody since the date of the offence, make sure he gives evidence about that. If your client is drug addicted, and you have a record showing that he has not been charged with having drugs in his urine tests, lead evidence from him about that fact, and the number of random urine tests he has been required to give.

If your client is in some form of protection, get him to give evidence about the conditions of his custody. The Court of Criminal Appeal has stressed the importance of having actual evidence of the conditions of custody of an offender serving a sentence in protection in cases such as Regina v Totten [2003] NSWCCA 207 and Regina v Durocher -Yvon [2003] NSWCCA 299. Ask your client in his evidence to describe the size of his cell, about how many hours a day he is in his cell (23 out of 24 hours is common), about what access he has to the oval, to education, and to the library.


When you can't call the client

I have suggested above that there will be some cases where you will come to the conclusion that it is not in your client's interests for him to give evidence in his sentence proceedings.

Where your client is not going to give evidence, it is important to be able to get a subjective case before the court. Probably the easiest way of doing this is through having a psychiatric or psychological report which you can tender. You should of course bear in mind the limited weight which a court may give this material.

Some (but not all) prosecutors will not object to the tender of a letter written by your client to the judge expressing his remorse about the offence. If you ask your client to write such a letter, you should make it clear to him that it should be his own thoughts, not those of the MRRC prisoners legal collective!

If your client is in protective custody, for reasons discussed above, it is important to have evidence of the conditions of protective custody before the sentencing judge. You may be able to get that material out of a psychological/psychiatric report. Failing that, I suggest faxing a letter to the prison seeking confirmation that your client is in protective custody, and the number of hours he is spending in his cell each day.


Submissions

It is very helpful to prepare a written outline of submissions. This assists your oral submissions by giving them a structure. It also assists the sentencing judge to recall the points you are seeking to make, particularly if the judge intends to reserve the sentencing proceedings. The outline need only be 2 or 3 pages long.

Deal with the aggravating features in your submissions; don't give the prosecution the opportunity to get up and say 'But the offender was on bail for other offences at the time'. If your client was on bail, or on parole, at the time he committed the offences, deal with that in your submissions. Your aim is to leave the prosecutor with nothing to say (or at least nothing to say which is not repetitive of what you have already said or irrelevant).

Be careful what you wish for. It is unwise to urge a judge to impose a sentence which you know could not stand in the Court of Criminal Appeal. When Judge Zahra was a Public Defender, he used to tell clients that it was important to bring the plane down on the airstrip; that is, you did not want to come in either too short or too long. Aim for the airstrip, not short of it.

I usually attempt to structure the sentence submissions in the same order that I would expect the sentencing judge work through the remarks on sentence. In that way your outline of submissions can assist the sentencing judge to structure the remarks on sentence.

I try to order the submissions in the same order as the judge might approach sentencing, something like this:

1. Objective Gravity
2. Plea of guilty
3. Record
4. Subjective Features
5. Assistance to the authorities and nature of imprisonment
6. Range of sentences for this Offence
7. Special Circumstances
8. Backdate

Depending on the case, other matters may be relevant, such as assistance to the authorities, nature of the client's imprisonment, and whether the sentences should be cumulative, concurrent, or partly cumulative and partly concurrent.

A simple example of such an outline of submissions is attached to this paper.


Objective Gravity

I think it is important to start with the objective gravity of the offence. If the offence is high in objective gravity, acknowledge this at an early stage, to avoid the sort of unhelpful judicial interruption along the lines of 'But this is a very serious offence, Mr Stratton.'

It may assist the sentencing judge to indicate what you believe to be the relevant aggravating and mitigating factors under s. 21A Crimes (Sentencing Procedure) Act. It is very important to remember that a factor cannot be an aggravating factor if it is an element of the offence: for example, a sentencing judge should not treat the simple fact threatened use of violence as an aggravating factor for an offence where the threatened use of violence is an element of the offence, such as in robbery offences: Regina v Ibrahimi [2005] NSWCCA 153 at paras [16] to [18].


Plea of Guilty

You should refer to the fact that the plea of guilty is both evidence of contrition, and entitles the offender to the utilitarian benefit for the plea, as set out in Thomson and Houlton (2000) 49 NSWLR 383. If there was an early plea, this should be referred to.


Record

If the offender has no or a limited record, this should be referred to. If the offender has a bad record, you might simply concede that his record does not assist him.

If your client was on a bond or on bail at the time of the offence, acknowledge that fact in your submissions, rather than waiting for the prosecution to do so.


Subjective Features

At the very least you should refer to the offender's age, and any matters in his personal history which might have contributed to the commission of the offence.

Other relevant matters may be your client's drug and alcohol history, psychiatric history, and so on.


Assistance to authorities and Nature of Imprisonment

If your client has provided information to the authorities, or given evidence for the prosecution, that should of course be drawn to the attention of the sentencing judge.

If you are not in a position to call your client, try to at least get confirmation from the prison that you client is in protection and the nature of his custody.


Range of Sentences

At this point in your submissions, you might want to refer to any Judicial Commission Statistics or schedules of cases, which you have obtained.

A certain amount of subtlety is required here. Judges usually do not like being told that the range of sentence for this offence is between 6 and 7 years. However it is permissible to state that a study of (for example) cases for this type of offence indicates that normally the head sentence is in the order of 6 or 7 years.


Special circumstances

'Special circumstances' of course refers to the requirement that the proportion of the total sentence to be served on parole must not exceed one third of the non-parole period unless there are special circumstances: s. 44 Crimes (Sentencing Procedure) Act. Usually factors which might call for a variation in the statutory proportion are the need for the offender to have a longer period of supervision in the community, or because the conditions of the offender's imprisonment will be particularly harsh: Regina v Lewis (1998) 100 A Crim R 361. Such factors might include youth, good prospects of rehabilitation, being on protection, and so on.

Different considerations arise in Commonwealth sentencing matters. Under Commonwealth law there is no statutory norm for the relationship between the non-parole period and the parole period. You may, however, wish to draw the judge's attention to the fact that in Commonwealth matters, the normal range for the proportion of the non-parole period to the head sentence is 60 to 66 and two-thirds %: see Regina v Bernier (1998) 102 A Crim R 44 esp. at 49.


Backdate

I think it is helpful to state the date on which you believe that the sentence should commence. Generally that will be the date when your client went into custody for these matters, but will not include any period during which for example your client was serving a sentence for another matter.


After the sentencing

After your client has been sentenced, I think it is always worthwhile to go down and see your client. One important reason for this is that very often clients who have just been sentenced are very unclear about what sentence they have received. In addition, and depending on the result, you may want to either advise the client of his right of appeal, in one situation, or on the other hand you might want to tell your client to thank his lucky stars.



John Stratton SC
Deputy Senior Public Defender

10 September 2007


REGINA v SMITH

OUTLINE OF SUBMISSIONS ON BEHALF OF THE OFFENDER



1. Objective gravity

It is conceded that the offences, being two armed robbery offences, are objectively serious.

There is no evidence that the gun used in the robbery was loaded and the gun was not discharged. There was no actual violence in the course of the robbery although there was of course the threat of violence and no doubt the victims of the robbery would have been very frightened.

Robberies can be regarded in escalating seriousness with the carrying of a firearm, the firearm being loaded, the weapon being fired, and the weapon being aimed at someone while fired: Regina v Readman (1990) 47 A Crim R 185. This offence can be regarded as being towards the lower end of that hierarchy of seriousness.

2. Plea of guilty

The offender pleaded guilty at the earliest opportunity, that is, at the Local Court. It is submitted that the discount which the offender should receive for the utilitarian value of his plea should be towards the upper end of the range of 10 to 25% identified in Regina v Thomson & Houlton (2000) 49 NSWLR 383.

The offender expressed his contrition to the psychologist Mr Tinker and it is anticipated he will express his contrition in evidence today. It is submitted that the Court would accept this contrition as genuine.

3. Record

The offender has a limited record and there are some matters of violence which are of concern. However, it is significant that these matters are the first offences of this type.

4. Subjective matters

The offender was 20 years old at the time of the offences, having been born on 1 April 1987.

The psychological report indicates that the offender had a difficult upbringing and had learning difficulties at school.

5. Range of sentences

In the guideline judgment of Regina v Henry (1999) 46 NSWLR 346 the Court of Criminal Appeal referred to a starting point of 4 to 5 years for the head sentence for the offence of armed robbery.

It is conceded that the facts of these offences are more serious than in the paradigm case referred to in Regina v Henry because a firearm was used. On the other hand, the offender entered his plea at the earliest opportunity, while the guideline in Regina v Henry assumed a late plea: see Regina v Hemsley [2004] NSWCCA 228 at para [30].

6. Concurrency and accumulation

The two robberies occurred within 2 weeks of each other. Although it is conceded that there should be some degree of accumulation in the sentences, it is submitted that the sentence could be largely concurrent to take into account the principles of totality.

7. Special circumstances

The offender is a young man. The prison sentence which your Honour will impose will be the first prison sentence which he will serve. The offender appears to have reasonable prospects for rehabilitation.

It is submitted that your Honour will have no difficulty in finding that there are special circumstances justifying a variation in the statutory ratio between the non-parole period and the parole period.

8. Backdate

The offender was arrested on 1 April 2007 and has been in custody continuously since that date for these matters only. It is submitted that the sentence to be imposed should be backdated to that date.


John Stratton SC
Deputy Senior Public Defender

10 September 2007