Utilitarian value of a plea of guilty under the Commonwealth Crimes Act 1914:
In undertaking the sentencing exercise under the Crimes Act 1914 (Cth) following a plea of guilty:
· the sentencing Judge is entitled to take into account the utilitarian value of a plea of guilty
· it is not necessary but desirable for the discount to be specified
· failure to refer to the utilitarian value of a plea in sentencing will constitute error
· failure to specify the discount would not of itself amount to error
Xiao v R [2018] NSWCCA 4:
SUMMARY:
The applicant was charged on indictment with committing an offence under s 1043A(1)(d) and s 1311(1) of the Corporations Act 2001 (Cth) for procuring another person to acquire financial products while possessing inside information (the procurement offence), and with entering into an agreement to commit an offence under s 1043A(1)(d) and s 1311(1) of the Corporations Act 2001 (Cth) (the joint commission offence). The applicant pleaded guilty to both charges prior to committal. The applicant was sentenced to an overall term of imprisonment for 8 years and 3 months with a non-parole period of 5 years and 6 months.
APPEAL (VARIOUS GROUNDS)
RELEVANTLY ON WHETHER WHEN SENTENCING UNDER THE CRIMES ACT 1914 THE JUDGE IS ENTITLED TO TAKE INTO ACCOUNT THE UTILITARIAN VALUE OF A PLEA OF GUILT:
THE Court concluded[30] that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) (“the Act”), a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. The Court further noted that s 16A(2)(g) of the Act, which mandates that the Court take into account the fact of a plea of guilty, neither requires nor prohibits the specification of a discount, but that it was desirable, in the interests of transparency, that such discounts be specified. However, the Court pointed out that a failure to specify the discount would not, of itself, amount to error.
In Liu, [2018] NSWCCA 70 on appeal, the CCA noting the sentencing judge had not referred to the utilitarian value of the pleas of guilty which had been entered – the CCA found error - the only available conclusion was that the sentencing judge had failed to have regard to that factor. and in my view, the only available conclusion is that she did not take it into account.