• DPP Guide •
Requirements for Plea Openings
14 July 2014
INTRODUCTION ..................................................................................................................... 2
STYLE OF PLEA OPENING ....................................................................................................... 2
STATUS ...................................................................................................................................... 2
LANGUAGE OF OPENING ................................................................................................................ 2
FORMAT .................................................................................................................................... 2
NAMING CONVENTIONS ................................................................................................................ 3
Offender identification ....................................................................................................... 3
Other party identification................................................................................................... 3
APPROACH TO CONTENTIOUS MATTERS ............................................................................................ 4
FACTUAL CONTENT OF THE PLEA OPENING ........................................................................... 4
OVERVIEW OF OFFENDING ............................................................................................................. 4
TENDERING OF EXHIBITS ................................................................................................................ 4
PERSONAL DETAILS OF OFFENDER, VICTIMS AND OTHER KEY PARTIES ...................................................... 4
BACKGROUND TO THE OFFENDING................................................................................................... 5
DETAILS OF THE OFFENDING ........................................................................................................... 5
EVIDENCE OF VICTIM IMPACT ......................................................................................................... 5
MITIGATING AND AGGRAVATING CIRCUMSTANCES.............................................................................. 5
DETAILS OF POST-OFFENCE CONDUCT............................................................................................... 6
GUIDE TO RECORD OF INTERVIEW .................................................................................................... 6
INVESTIGATIVE DETAILS ................................................................................................................. 6
MULTI OFFENDER CASES ................................................................................................................ 6
STANDARD OF PROOF ................................................................................................................... 7
LEGAL AND PROCEDURAL DETAILS IN THE PLEA OPENING .................................................... 7
MAXIMUM PENALTIES .................................................................................................................. 7
PRE-SENTENCE DETENTION ............................................................................................................ 8
Declarable detention .......................................................................................................... 8
Undeclarable detention...................................................................................................... 8
VICTIM IMPACT STATEMENTS ......................................................................................................... 9
TIMING OF GUILTY PLEA INDICATION ................................................................................................ 9
OFFENCE AND OFFENDER-SPECIFIC STATUTORY SCHEMES ..................................................................... 9
STATUTORY LIMITS TO SENTENCING POWER....................................................................................... 9
CRIMINAL HISTORY ..................................................................................................................... 10
CO-OFFENDER SENTENCES ........................................................................................................... 10
DISTINCTION BETWEEN OPENING AND SENTENCING SUBMISSIONS ................................... 10
DPP Guide: Requirements for Plea Openings 1
Introduction
1.
The Director’s Policy on the Crown’s Role on the Plea and Sentence
Hearing requires plea prosecutors to prepare written pleas openings for
all higher court pleas conducted on behalf of the Victorian Director of
Public Prosecutions. It also requires plea prosecutors to have regard to
this guide when drafting those opening.
2.
Prosecution plea openings should generally address the matters and
follow the style suggestions described in this document.
3.
This guide is divided into four sections:
•
Style of Plea Opening
•
Factual Content of the Plea Opening
•
Legal and Procedural Details in the Plea Opening
•
Distinction between Opening and Sentencing Submissions
Style of Plea Opening
Status
4.
Identify status of plea opening: The plea opening must clearly identify
whether or not it is an “agreed statement of facts”.
Language of opening
5.
Use neutral language: The plea opening should avoid emotive language
which may excite sympathy for any victim or prejudice against the
offender.
Format
6.
Use headings: The written plea opening is a script for the oral opening,
a template for the facts that the Crown submits should be stated in the
judge’s sentencing reasons, and the key document on the Crown file that
sums up and explains the results of the prosecution. In almost every
case, each of these functions will be enhanced by the proper use of
headings. The major headings used in this document (from “Overview”
on) may be used, with necessary adaptation, as a guide to appropriate
opening headings.
7.
Chronological approach: The facts should ordinarily be described in
chronological order. However, in multi-stranded offending against
different victims over extended periods of time, it will often be
appropriate to describe the separate offending against each victim
sequentially. So the opening should generally provide a complete
account of the offences against V1 before summarising the
chronologically overlapping offending against V2.
8.
Footnotes: If an opening contains numerous page or paragraph
references, prosecutors are encouraged to use footnotes in preference to
in-text reference.
DPP Guide: Requirements for Plea Openings 2
Naming conventions
9.
Names should be expressed in prosecution openings in a form that is
respectful to all named parties (including the offender), avoids
ambiguity, and maximises clarity.
Offender identification
10.
The offender’s full name should be stated at least once in the narrative
of the prosecution summary. Full names should be repeated only where
this is necessary to avoid ambiguity. Subsequent references should
ordinarily identify the offender by surname and honorific (e.g. “Mr” or
“Ms”). The honorific may be omitted where there are multiple
offenders, and the repetition of the honorifics detracts from the clarity of
the narrative. Initials may be used for subsequent references in complex
cases where repetition of names (particularly similar or complex names)
would detract from clarity.
11.
The offender should not be excessively referenced as “the offender” in
the narrative. The offender should not be described at all as “the
accused”, as this label is inaccurate at the point that the plea opening is
read to the court. The offender should not be described as “the
prisoner”, as the offender’s custodial status during the plea is not
significant, and this description might be regarded as inflammatory.
Multiple offenders may be described properly as “the offenders”.
Other party identification
12.
The full name of every person described in the opening should be stated
at least once, unless those names are, or are likely to be suppressed.
Surnames (with honorifics) or unambiguous initials may be used for
subsequent references.
13.
Prosecutors should not be reticent about repeating the name of the
victim on multiple occasions. That repetition acknowledges the victim
and avoids depersonalising the offending. However, at some point
repetition may become excessive, and abstract references may be
appropriate.
14.
Abstract references to living victims should generally nominate “the
victim” rather than “the complainant”. This is because, at the point the
plea opening is relied upon, the victim’s “complaint” has been
established as true beyond reasonable doubt. This approach is also
consistent with the language used in the Sentencing Act 1991 and the
Victim’s Charter Act 2006.
15.
Abstract references to deceased victims must by necessity refer to the
“deceased”. However, preference should generally be given to naming
deceased victims directly, rather than abstractly. The families of
deceased victims are often disturbed or distressed by the anonymisation
of the victim by use of an abstract label. Personalisation remains the
preferred approach, even where the evidence reveals personal,
embarrassing or discreditable details about the deceased.
DPP Guide: Requirements for Plea Openings 3
Approach to contentious matters
16.
The plea opening states the Crown position on the sentencing facts.
Unless it is an agreed statement of facts, there is no need for it to omit
reference to facts that may be in dispute between the parties. Where the
Crown relies upon inferences, or where the significance of complex or
ambiguous facts can best be revealed by an interpretative (and therefore
contestable) submission, it will often be appropriate to include that
submission in the Crown opening.
Factual Content of the Plea Opening
Overview of offending
17.
The plea opening should ordinarily commence with an overview of the
offending. This overview should state the number and nature of charges,
the number of victims and their relationship to the offender, and the key
features of the offending. In drug cases those feature are the quantity of
drugs and the offender’s role in the offending. In dishonesty cases that
feature is the value of money or goods stolen or defrauded. In child sex
offences cases those features may be the victims’ ages, the duration of
the offending, and the range of acts (e.g. full sexual penetration, digital
penetration, touching of the victim’s genitals) that constituted the
offences.
18.
Where the Crown characterisation of the offending is as important as
the description of the evidence, that characterisation should also be
included in the overview. If the Crown contends that the case represents
worst case offending, or that this offender was a high level player in the
drug syndicate, that contention should be included in the overview.
19.
An overview need not be included if the summary of facts does not
exceed two pages. It also need not be included if the opening is an
agreed statement of facts. However, in that case, a Crown overview
should ordinarily be included in a separate outline of submissions on
sentence.
Tendering of exhibits
20.
Prosecutors should generally tender any original photographs, charts,
fresh medical evidence and other non-depositional documents. It will
sometimes be appropriate to tender particular statements from the
depositions in order to highlight important matters. The overview may
provide the appropriate occasion within the oral opening to tender this
material.
Personal details of offender, victims and other key parties
21.
The plea opening must clearly identify the offender’s age at the time of
the offending, and at the time of the plea. It must also clearly identify
the ages of the victims. In cases involving sexual offending over time,
the opening must make clear the respective ages of victim and offender
DPP Guide: Requirements for Plea Openings 4
at the time of each offence. Failure to do so may permit the judge to fall
into fact finding error.
22.
In homicide cases the deceased must be respectfully identified,
generally by name, age, occupation, significant life events and
significant relationships (e.g. “wife to AB, mother of three children
aged between X and Y”). Similar identification may be appropriate in
very serious injury cases, and other cases where victims have suffered
devastating injury.
Background to the offending
23.
The plea opening must briefly but clearly state the relevant background
to the offending. For interpersonal offending this will often include a
description of the relationship between victim and offender. For drug
offending it may include a brief description of the police operation that
led to the offender’s identification and the gathering of the evidence
against the offender. For deception offending it may include a
description of the offender’s employment at the victim firm preceding
and during the offending.
Details of the offending
24.
The plea opening should describe all the sentencing facts relied upon by
the Crown. The prosecutor must be satisfied that there is an evidentiary
basis for each of the facts contended in the opening. In simple cases
where the evidentiary source of the details provided is clear, it is not
necessary to provide close references to that source. However some
reference should be made to specific sources if they will not otherwise
be easily discoverable.
25.
In drug, dishonesty and criminal damage cases, the plea opening should
clearly describe evidence of quantity, value and benefit. Where the
offending is split between multiple charges, the plea opening should
also generally state aggregate quantities and values.
Evidence of victim impact
26.
The plea opening must clearly set out all relevant details of victim
impact. In injury cases, the opening must describe the individual
injuries, and summarise all relevant information regarding on-going
impact and prognosis. This can be supplemented by material from
victim impact statements if that material is unchallenged, and its source
is identified in the plea opening.
27.
The prosecutor should be ready to explain technical medical terms use
in the opening (and should avoid them where possible).
Mitigating and aggravating circumstances
28.
The prosecutor should inform the sentencing court of the facts which
may be regarded as mitigating (such as injury to the offender) or
aggravating (such as breach of trust) where they are established by the
DPP Guide: Requirements for Plea Openings 5
prosecution evidence. The prosecutor’s duty to alert the court to
mitigatory features is particularly important where the offender is
unrepresented.
29.
The failure of the prosecutor to inform the court of an aggravating
feature precludes the Crown from relying on that feature at any
subsequent sentence appeal.1
Details of post-offence conduct
30.
The plea opening should describe relevant details of post-offence
conduct such as flight and co-operation with the authorities.
Guide to record of interview
31.
Where the prosecution relies on admissions in interview, key statements
should be extracted or closely summarised in the opening.
32.
The Crown opening should also identify exculpatory or mitigatory
statements made in interview, whether or not they have been resiled
from. The Crown position in respect of these statements should be made
clear. If they are accepted, this should be stated. Where an exculpatory
or mitigatory statement is inconsistent with the plea or verdict, or
inconsistent with evidence relied upon by the Crown, the opening
should expressly identify that inconsistency.
33.
The source of all interview references should be identified by Q/A
number.
Investigative details
34.
The plea opening should not ordinarily describe investigations in great
detail. However, where the Crown case was strong or unanswerable,
and the incriminating evidence does not emerge from the narrative of
the offence, an overview should be included sufficient to expose the
strength of the Crown case.
35.
The plea opening should also briefly describe the scale or complexity of
the investigation if:
a.
b.
The offending prompted a large scale or particularly expensive
investigation;
A long delay in charging is explained by that scale or
complexity.
Multi offender cases
36.
1
Where a single opening addresses multiple offenders, care must be
taken to identify the evidence, including inferences, in respect of each
offender, and the different roles played by each offender. Where
complicity principles are relied on, the prosecutor should clearly
R v Shafik-Eid [2009] VSCA 217
DPP Guide: Requirements for Plea Openings 6
identify the specific form of complicity (for example, joint criminal
enterprise).
Standard of proof
37.
The standard of proof is dependent on the use to be made of a particular
fact in the sentencing process.2 Where that use is adverse to the interest
of the offender (i.e. an aggravating factor), then the relevant fact must
be proved beyond reasonable doubt by the Crown. Where that use is in
favour of the offender (i.e. a mitigating factor), then the relevant fact
need only be proved on the balance of probabilities by the offender.
Accordingly, where an issue is joined and relates to an aggravating
factor, the prosecutor must give consideration to the calling of evidence
from witnesses.
Legal and Procedural Details in the Plea Opening
38.
39.
The Crown opening must inform the Court regarding the following
sentencing considerations:
•
Maximum penalty
•
Pre-sentence detention
•
Victim impact statements
•
Timing of guilty plea indication
•
Delay in proceedings
•
Operation of offence and offender-specific statutory schemes
•
Statutory limits to sentencing discretion
•
Details of criminal history
•
Co-offender sentences
The Crown opening should advise the Court that in addition to the
matters addressed in the opening, the prosecutor also proposes to make
separate sentencing submissions. This will be clear if the prosecutor has
filed, in addition to the Crown opening, an outline of sentencing
submissions.
Maximum penalties
40.
The prosecutor must inform the sentencing court of the maximum
penalty for each charge presented for sentence.3 The prosecutor should
take particular care where the indictment includes charges relating to
historical offences or offending which encompasses alterations to the
relevant penalty scales. Plea instructors must ensure that details of all
2
R v Storey [1998] 1 VR 359; R v Olbrich (1999) 199 CLR 270
3
R v Morton [1986] VR 863
DPP Guide: Requirements for Plea Openings 7
relevant maximum penalties are clearly set out in the memorandum to
the plea prosecutor.
Pre-sentence detention
Declarable detention
41.
The prosecutor must inform the sentencing court of the amount of time
the offender has spent in custody referable to the offences before the
sentencing court, and identify the number of days declarable as presentence detention under Sentencing Act 1991 s.18 or s.35.
42.
The declaration should include, “doubly warranted custody”, meaning
custody warranted both for the current offence, and for unrelated,
unsentenced offending.4
43.
Correction of errors: If the period declared at sentence is not correct,
the Crown must apply under Sentencing Act 1991 s.18(7) for an order
declaring the correct period and amending the sentence accordingly.
There is no time limit for this application, and the functus officio
doctrine does not apply.
Undeclarable detention
44.
Common law discretion: Time served on remand solely for unrelated
offending cannot be declared under s.18. However, judges should
ordinarily take this custody into account “in a general way” when fixing
sentence, whether to compensate for true dead time, or to give effect to
the totality principle.5
45.
Limits to relevance of sentenced time: Time served under another
sentence, including restored parole sentences, cannot be declared under
s.18. Prosecutors must identify this custody, as it is relevant to totality
issues, but it should not be treated as “Renzella” or “dead-time” – which
would generally result in substantial double-counting in sentence. See
CA v R [2012] VSCA 199.
46.
Judicial policy requires that unrelated custody should be taken into
account in this way at the earliest opportunity. This is to avoid the
possibility that the withdrawal or failure of a prosecution may convert
undeclared custody into “dead time”.6
47.
In cases of separately warranted custody, prosecution solicitors must
take care to identify any custody that has already been taken into
account in an earlier sentence. The fact that detention for an offence has
already been taken into account under the common law discretion
provides a strong basis for an order under s.18(1) declining to declare
all or part of the relevant period.
4
Karpinski v R (2011) 32 VR 85 at [36].
5
Karpinski.
6
Karpinski at [52] & [53].
DPP Guide: Requirements for Plea Openings 8
Victim impact statements
48.
Where possible, the Crown opening should list the victim impact
statements that are to be tendered on the plea. This will ensure that no
individual statement is overlooked by either prosecutor or judge.
Timing of guilty plea indication
49.
Sentencing Act 1991 s.5(2)(e) establishes the timing of a guilty plea as a
significant sentencing consideration. The prosecution opening should
identify the date and procedural stage of the first indication of an
intention to plead guilty. Details of plea offers that were not accepted
should also be included. If the plea followed a contested committal, the
opening should indicate the number and nature of witnesses called on
that proceeding. Where the characterisation of the timing of the plea is
not clear (e.g. “first opportunity”, “late”), the opening should include
the Crown submission on that characterisation.
Offence and offender-specific statutory schemes
50.
The prosecutor must be ready to submit whether or not the offender falls
within any of the offence or offender-specific schemes created under
statute.
51.
These schemes include:
52.
i.
The “serious offender” scheme
ii.
The continuing criminal enterprise offender scheme
iii.
The sex offender registration scheme
iv.
Modified cumulation provisions for prison, parole, escape and
bail offenders
Where these special sentencing provisions do apply, it will generally be
appropriate to identify and explain that application in the written
opening.
Statutory limits to sentencing power
53.
If there is a risk that the court may consider imposing a sentence that is
prohibited by a specific statutory limit, the Crown opening should
clearly identify that statutory limit.
54.
Limits on suspended sentences: The most important statutory limits
currently in force are the various limits and prohibitions on imposing
suspended sentences of imprisonment. The Crown opening should
generally identify these limits in any case where the court may be
considering imposing a sentence of 3 years imprisonment or less.
55.
Aggregate sentence: Counsel should also be aware of the unity test that
limits aggregate sentences of imprisonment available under s.9 of the
Sentencing Act 1991. Section 9(1) limits the availability of aggregate
sentences to offences that are founded on the same facts, or part of a
series of offences of similar character. Counsel should also be aware of
DPP Guide: Requirements for Plea Openings 9
the prohibitions in s.9(1A) limiting the availability of aggregate
sentences for part 2A serious offenders and parole offenders. Where the
charges on an indictment do not meet the unity test, or the offender is
ineligible for an aggregate sentence under s.9(1A), the prosecutor
should note these limits in the Crown opening. See further the DPP
Policy regarding Aggregate sentences of imprisonment.
56.
Federal sentencing: Commonwealth sentencing contains numerous
limits to discretion, including limits to the availability of non-parole
periods and recognizance release orders. Prosecutors appearing for the
State in matters including Commonwealth charges must be familiar with
these limits.
Criminal history
57.
The prosecutor must be familiar with the details of the offender’s
criminal record, but discussion of those details should generally be
reserved for the sentencing submissions.
58.
Where the offender has no previous convictions and the Crown is aware
of no subsequent matters, the prosecutor should generally acknowledge
those facts in the plea opening.
Co-offender sentences
59.
To assist the judge to avoid disparate sentencing, the prosecutor must
inform the sentencing court of sentences imposed on any co-offender.
Generally, the prosecution should also supply the court with all
available sentencing reasons in respect of co-offenders. The Crown duty
extends to adducing evidence as to the criminal histories of any such cooffenders7.
Distinction between Opening and Sentencing Submissions
60.
The Director’s Policy on the Crown’s Role on the Plea and Sentence
Hearing confirms that, in addition to the matters addressed in the plea
opening, prosecutors must generally make further “sentencing
submissions”. While the opening describes the factual and legal basis
for the sentence to be imposed, the “sentencing submissions” are
directed to the analytical basis of sentence.
61.
Ordinarily these submissions should be made after the offender’s plea in
mitigation, and will be informed by that plea. However, prosecutors
may address them orally at the conclusion of the opening, if prompted
by the Court.
62.
For more information on the proper content of sentencing submissions,
see the Director’s Policy on the Crown’s Role on the Plea and Sentence
Hearing.
7
See R v Carey, Vic CCA, 08/04/1976, unreported.
DPP Guide: Requirements for Plea Openings 10