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A pragmatic justice

A pragmatic justice

By Andrew Field

Courts Criminal Procedure Justice Sentencing 


A recent Court of Appeal decision confirms that an offender pleading guilty is entitled to a discount to their sentence for the utilitarian benefit of their plea to the community.


  • In a recent series of cases, the Commonwealth DPP argued that an offender is not entitled to a sentencing discount attributable to the utilitarian benefit of a guilty plea.
  • Recently, in DPP (Cth) v Thomas it was argued this was the position under the common law and therefore under s16A(2)(g) Crimes Act 1914 (Cth).
  • The Victorian Court of Appeal rejected this argument and confirmed that such a discount was a necessary part of state and Commonwealth sentencing law.

Commonwealth criminal law is frequently derided as being overly complex and needlessly technical.1 And yet, the case law which it produces often has great value because it brings into focus issues beyond Commonwealth legislation and comments on the criminal law as it applies to state law and common law. A notable example is the High Court decision in Barbaro v The Queen2 which determined that in both Commonwealth and state prosecutions it is impermissible for prosecutors to submit a sentencing range on a plea hearing. A more recent example of the wide-ranging value of Commonwealth cases is the series of cases involving the utilitarian benefit discount on sentence which culminated in the Court of Appeal's decision in DPP (Cth) v Thomas ("Thomas").3

Through 2015 and 2016 Commonwealth prosecutors in Victoria made submissions relating to the sentencing discount allowed for the “utilitarian benefit” of a plea of guilty. The utilitarian benefit discount is an objective discount given on sentence for a plea of guilty reflecting the saving of the cost of the trial (in terms of both time and expense) and for sparing victims and witnesses the experience of a trial. Commonwealth prosecutors submitted that no such discount was available in relation to sentences for Commonwealth offences. And yet, when this was finally argued before the Court of Appeal in Thomas, the Court, in rejecting the argument, not only provided an analysis of a part of Commonwealth criminal law, but also a substantial examination of one of the more pragmatic approaches to the sentencing of offenders.

The utilitarian discount on sentence

The sentencing process under both common law and statutory schemes in Australia is approached by way of "instinctive synthesis". This expression which first appeared in R v Williscroft4 describes the process whereby (in the words of McHugh J in Markarian v R)5 "the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case". These factors are all the matters taken into account during a plea hearing ranging from the seriousness of the offending through to the subjective attributes of the plea of guilty and the offender.

Until recently it appeared to be accepted in Victoria that an offender's plea of guilty was also a factor to be taken into account and that by reason of the plea a “discount” to the sentence would be given on account of the utilitarian benefit provided to the community. As explained by the Victorian Court of Appeal in Phillips v R ("Phillips")6 at [38]:

"The orderly and effective administration of criminal justice depends upon a large proportion of accused persons pleading guilty . . . A plea of guilty not only resolves the crime and releases investigators to other duties; resources are preserved for cases in which the guilt of the offender is really in issue. The plea vindicates public confidence in the legal processes established to protect the community, relieves the victims and witnesses of having to give evidence and provides some closure and vindication for victims of the crime."

Accordingly, as the Court summarised in Phillips at [48], ". . . there has been a very broad and long-standing acceptance that a sufficient and necessary rationale for the public interest in providing a discount for a plea of guilty is its utilitarian benefit . . ."

The Commonwealth statutory prescription

Statutory schemes now apply to sentencing in all Australian states. In many cases those schemes reflect or codify the common law in addition to prescribing new procedures.

In relation to the Commonwealth, a statutory scheme also applies in Part 1B of the Crimes Act 1914 which came into operation in 1990. In relation to how a sentencing court is to approach the sentencing task, s16A states that the sentence to be imposed must be one that is "of a severity appropriate in all the circumstances of the offence”. The section then sets out a non-exhaustive list of matters to be taken into account.

Of relevance, under s16A(2)(g) one of the matters to be taken into account is "if the person has pleaded guilty to the charge in respect of the offence – that fact".

Rejection of utilitarian benefit discount

Although governed by statute, for many years it also appeared well accepted that the utilitarian benefit discount arose in Commonwealth sentencing.

This appeared to be evident on account of:

  • s16A(2)(g) – which appeared to reflect the Australian Law Reform Commission's 1988 recommendation that "A plea of guilty, whether there is evidence of remorse or not, should be listed as a fact that can be taken into account in sentencing"
  • sentencing practice in Commonwealth pleas since 1990 that indicated such a discount was appropriate.

However, in 2015 and 2016 Commonwealth prosecutors submitted to the Victorian courts that s16A(2)(g) did not allow for a sentencing discount based on the utilitarian benefit to the community.7 The fact that the plea had saved the community the expense of a contested hearing was not a matter which could be the basis of a sentencing discount. The argument was put that s16A(2)(g) was to be construed in conformity with the common law, and the common law did not allow such a discount – that the discount for a plea of guilty was limited to subjective factors such as remorse, prior good character, other circumstances of the offender and the like.

In each instance, the various sentencing judges rejected the submission. In many cases, the judges referred to the decision of Chief Judge Kidd in DPP (Cth) v Okoka.8 In an addendum to his judgment, the Chief Judge, in rejecting the submission, referred to three “difficulties” he saw with the argument:

  • in cases such as Phillips the Court of Appeal had confirmed that the common law allows a discount to be given for the “purely objective utilitarian benefit" of the plea
  • the Court of Appeal had also found in relation to the state sentencing scheme s5(2)(e) of the Sentencing Act 1991 (Vic) it was compelled to take into account “whether the offender pleaded guilty” and a consistent reading of s16A(2)(g) (which refers to the “fact” of the plea of guilty) compelled the same result
  • the Court of Appeal had up until recently endorsed “without demur” taking into account purely the objective utilitarian benefit of the plea when sentencing in Commonwealth offences.9

DPP (Cth) v Thomas

The opportunity for the Court of Appeal to examine the Commonwealth’s utilitarian benefit argument arose in Thomas. This appeal concerned Commonwealth appeals in relation to two matters. Thomas had been sentenced to five years imprisonment with a non-parole period of three years for attempted possession of a commercial quantity of an unlawfully imported border controlled drug (methamphetamine). Wu had been sentenced to six years and six months imprisonment with a non-parole period of three years and six months for importation of a commercial quantity of a border controlled drug (methamphetamine). In addition to arguing that the sentencing judges had impermissibly allowed sentencing discounts on account of the pleas of guilty of the two accused, the Commonwealth also argued that the sentences were manifestly inadequate.

The Court of Appeal ultimately determined that the two sentences were inadequate and increased both sentences. However, for the purposes of the present discussion it is what the Court had to say about the discount for the utilitarian benefit which is of interest.

The Court summarised the argument of the Commonwealth as follows: s16A(2)(g) was a reflection of the common law, but the common law had changed since the introduction of s16A(2)(g) resulting in a similarly changed interpretation of the section. This change was attributed to the High Court’s 2002 decision in Cameron v The Queen ("Cameron")10 and specifically to the following passage of the judgment of Gaudron, Gummow and Callinan JJ at [77]:

“Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken to account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing”.

But, as the Court of Appeal observed at [102]-[112], generally Cameron (which was an appeal in relation to Western Australian law and not Commonwealth sentencing) had not been understood to have affected other state sentencing regimes or the allowance of a discount for a pragmatic benefit.

The Court noted at [113]-[121] that the Commonwealth also placed reliance on the 2007 New South Wales Court of Criminal Appeal’s decision in Tyler.11 In that case, Simpson J at [110] appeared to apply Cameron to Commonwealth sentencing and summarised the High Court’s approach as being one which “permitted recognition of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing”.

In summary, the Commonwealth’s argument in Thomas was that:

  • Cameron restated the common law (at [75])
  • the reading of Cameron in Tyler was correct in that it took the High Court to be excluding the utilitarian benefit discount from sentencing under the common law (at [123])
  • principles of comity required that the Court of Appeal follow the reasoning of another intermediate appellate court and therefore apply the reasoning in Tyler (at [130]).

In rejecting this argument, the Court of Appeal determined that it was not bound by comity to follow the reasoning in Tyler. This was because the Court identified at [83]-[99] a significant body of appellate decisions in the 14 years since Cameron which allowed a utilitarian benefit and there was no reason why Tyler should be preferred to them.12 In addition, the Court also stated at [136] that the observations made in Tyler were “plainly wrong” and that the other appellate court decisions to which it had referred were correct in requiring the utilitarian benefit discount.

Expanding on this conclusion, the Court of Appeal said that although ordinarily there will be no great difference in outcome either way because the discount under s16A(2)(g) will usually involve overlap between the “willingness to facilitate the course of justice” discount and the objective “utilitarian benefit to the community” discount, there will be cases where there is little evidence of such willingness. In those cases, to fail to consider the utilitarian benefit and any related discount would be to fail to comply with s16A(2)(g).


At the time of the Thomas decision, it was still an open question whether the Commonwealth DPP would pursue the argument in relation to the utilitarian discount. However, since then the Commonwealth DPP has approached the Commonwealth Attorney-General to recommend amendment to s16A to reflect the Victorian position given that there is still conflict between the states.13

Whether or not this recommendation is accepted, Thomas appears to have confirmed the place of the utilitarian discount as a part of sentencing in Victorian courts. Further, regardless of how it may sit with philosophical notions of “justice”, the decision in Thomas is confirmation that the guilty plea even if unaccompanied by either remorse or acceptance of responsibility but which saves the community the expense of a trial will entitle an offender to a reduction in their sentence. It is a pragmatic but necessary approach to the administration of justice.


Andrew Field is a Managing Principal Solicitor at the Victorian Government Solicitor’s Office. Any opinions expressed in this article are his own.


1. See “When a sentence is a question”, Law Institute Journal, August 2014, 88.08, pp36-39.

2. [2014] HCA 2.

3. [2016] VSCA 237.

4. [1975] VR 292, at 300.

5. (2006) 228 CLR 357, at [51].

6. (2012) 37 VR 594.

7. See for example: The Queen v Cho [2015] VCC 1697 at [19]-[27]; DPP v Kim [2015] VCC 1849 at [63]-[84]; CDPP v Wu [2016] VCC 141 at [52]; DPP(Cth) v Winter [2016] VCC 863 at [72]; DPP v Dewhurst [2016] VCC 1187 at [67]-[69].

8. [2016] VCC 172.

9. For example, in Barbaro, the Court of Appeal stated: "the utilitarian value of a plea of guilty will . . . entitle the offender to a reduction in what would otherwise be an appropriate sentence”, [2012] VSCA 288 at [32], a matter not in issue when the matter was appealed to the High Court.

10. (2002) 209 CLR 339.

11. (2007) 173 ACrim R 458.

12. Although not crucial to the decision of the Court, it probably also did not help the argument of the Commonwealth that the Court could also observe at [75] that Thomas was the first time it had attempted to make this argument before the Court in those years.

13. See CDPP, "Federal Sentencing in Victoria" (31 January 2017), i, [102]-[106], available at

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