Discount for an early plea of guilty

This post concerns people sentenced for Western Australian offences, not offences under federal law.

Appropriate discount for pleading guilty

A person who pleads guilty can expect to receive a discount on sentence they would otherwise have received, had they gone to trial and been found guilty.

Useful guidance on the appropriate discount on sentence for an early plea of guilty can be found in the matter of Ugle v Western Australia [2018] WASCA 97. It involved an appeal against sentence by an offender who had pleaded guilty at the first reasonable opportunity. ((At [15]))

The appellant’s counsel had invited the sentencing judge in the District Court to consider the maximum discount under s 9AA of the Sentencing Act 1995 (WA), that is 25%. ((At [14]))

Instead the sentencing judge allowed a discount of only 10%. The Court of Appeal held ((At [24])) “…the conclusion that a discount of only 10% was appropriate in this case could not have been reached if the principles governing the exercise of the discretion under s 9AA had been properly applied.”

In terms of general principle the Court observed as follows:

The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:
(a) Securing the conviction of a person who has committed a criminal offence;
(b) The Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c) If the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d) Avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e) The more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case. ((At [18]))
…
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. ((At [20]))
…
Neither counsel was able to point to any case concerning s 9AA decided by this court in which a discount of less than 20% was given for a plea of guilty at the first reasonable opportunity. ((At [32]))

Although the Court did not go so far as to say that at least a 20% discount should always be given for a plea at the first reasonable opportunity, it would appear to require an exceptional case to depart from that range of 20-25%.

Procedural fairness

The appellant also argued that the sentencing judge denied her procedural fairness by not indicating (prior to imposing sentence) that he did not accept the submission that the maximum discount was appropriate. ((Ground 2; at [2] and [34]ff))

Although this ground was conceded by the State the Court held it was unnecessary to decide the ground. ((At [34])) From their remarks it appears that their Honours had some difficulties with it. They said:

… it is for counsel making the submission to make the case for the discretion under s 9AA to be exercised in a particular manner, and counsel is not entitled to take silence from the bench as an indication that the submission is accepted so that it is unnecessary to say anything more.
…
there was no concession by the prosecutor or indication by the judge that the maximum discount would be applied
…
The appellant’s sentencing counsel had the opportunity to make submissions on … issue[s] which should have been anticipated as relevant. ((At [40]))

The takeaway message is that defence counsel should never assume that the maximum discount will be applied. They should ask the prosecution whether the State accepts that the maximum discount is appropriate; and where agreement is absent should fully address the factors that are relevant to the exercise of the discretion in s 9AA including those listed above, and also the strength of the prosecution case.

Case examples

The following cases are examples where the Court of Appeal increased the discount for an early plea of guilty. In some cases pleas at the first opportunity.  Each offender received only a 10% discount which in each case was described by the Court of Appeal as unreasonable or plainly unjust. 

Ugle v WA [2018] WASCA 97

2 years 7 months for burglary and stealing – fingerprint in stolen car, CCTV, some admissions. 10% discount for first opportunity plea increased to 25%, sentence down to 2 years.

Jones v WA [2018] WASCA 105

5 grams meth (high purity). Pleaded guilty early but not at first opportunity, strong case: 10% discount increased to 17.5% – sentence reduced from 20 months to 18.

Winmar v WA [2018] WASCA 155

Aggravated burglary – $60,000-odd worth of property stolen. Case strong but not overwhelming, pleaded guilty at first reasonable opportunity. 10% discount increased to 20% (Mitchell JA said 25%): sentence from 3 years 3 months down to 3 years.

If you would like advice on your or your clients’ specific circumstances, you are welcome to contact me directly.