By Paul Gregoire and Ugur Nedim
There are circumstances whereby a defendant pleads guilty to one or more criminal offence, known as the principal offence or offences, but there is an additional offence or offences for which he or she does not formally enter a plea or pleas of guilty, but admits to the offences nevertheless.
These additional offences can be placed on a document known as a ‘Form 1’ and taken into account when the defendant is being sentenced for the principal offence/s, rather than sentenced separately.
The resulting sentence is meant to reflect the ‘principle of totality’; which is the principle that states a sentence should reflect the overall seriousness of the offending conduct before the court.
The legislation relating to Form 1’s
The laws governing the Form 1 procedure are found within division 3 part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). But the process was contained in other pieces of legislation prior to this, and it has been derived from a non-statutory practice of the British courts.
The application for a guideline judgment
In 2002, NSW attorney general Bob Debus requested that the NSW Court of Criminal Appeal issue a guideline judgment on the Form 1 procedure, under section 37 of the Act, which is a process that provides for a panel of justices to issue a clear guideline on an aspect of the sentencing process.
The need for the judgment was not in relation to any particular case, but it stemmed from the absence of there being any authoritative guidance, which was leading to “unresolved conflicts” amongst various judgments and “such conflicts would, of course, justify resolution”.
Form 1 process in law
Sections 31 through to 35A of the Act contain the laws in regard to the Form 1 process. And they provide that the prosecutor may lodge such a document specifying offences charged but not tried for conviction, of which the offender has indicated they would like the court to deal with in this manner.
These additional charges can be filed prior to conviction on the principal offence or following a finding of guilt, while taking this approach requires the agreement of all parties who sign the form, and it cannot result in a sentence that exceeds the maximum penalty for the principal offence.
The offences on a Form 1 can only be those the court has jurisdiction to impose a penalty over and they can’t be offences carrying a maximum term of life imprisonment.
But the NSW District and Supreme Courts can deal summary offences on a Form 1, even though they’re usually dealt with via the NSW Local Court.
A court cannot impose a separate sentence for a Form 1 offence, but it can issue an ancillary order that could have been made if there was a conviction, and these involve “restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege”.
Such extra offences can too be taken into account if resentencing for the primary offence occurs later during an appeal. And offences being taken into account on a Form 1 does not imply that the offender has been convicted over these additional offences.
Section 35A of the Act, which is a 2011 amendment to the process, further provides that additional charges shouldn’t be accounted for via the use of a Form 1, unless the prosecutor has filed a certificate that ensures the victim of the crime and the police were consulted.
Issues on review
The NSW attorney general identified four issues to be consider during the guideline hearing, which involved the meaning of “take into account”, circumstances that warrant a Form 1, the extent that a penalty can increase due to this process and how a judge should access these extra offences.
And he also presented the court with an eight-step draft proposal of the guideline.
But the NSW Director of Public Prosecutions did not agree with his suggestions in terms of that an increase in penalty resulting from a Form 1 offence should be specified and neither did they agree that a judge should provide a notional sentence for extra offences taken into account.
The Senior Public Defender submitted that there was no evidence of inappropriate Form 1 use. They warned against undermining the benefits that flow to the offender in admitting guilt in this way, as well as suggesting that a judge should not be able to refuse the process when all parties agree to it.
Yet, as part of the five-justice panel of the NSW Court of Criminal Appeal (NSWCCA) deliberating upon the request, then NSW Chief Justice James Spigelman rejected the AG’s draft proposal, as well as the questions that he put he put to the court.
But the politician’s request to provide a guideline was upheld and resulted in a 20 December 2002 judgment being issued.
The Form 1 process guidelines
Justice Spigelman found much of the Form 1 process was “well-established” and “uncontroversial”, and he highlighted that “the entire point of the process is to impose a longer sentence… than would have been imposed if the primary offence had stood alone”.
His Honour added that “it is wrong to suggest that the additional penalty should be small”, as “sometimes it will be substantial”.
Further, in setting out the guidance on how the Form 1 process should be approached, the then Chief Justice added that “the legislative scheme empowers a prosecutor to file a list of additional charges specifying other offences which an offender wants the court to take into account”.
However, his Honour continued, “nothing in the statutory scheme identifies any criterion for selection of matters to be included on any such list”, and neither is there a need for the principal offence and those on the Form 1 to be related to one another.
The court possesses an “overriding discretion” whether to permit the Form 1 process to be pursued, and this “wide discretion” shouldn’t be confined to “the identification of a list of situations in which it should not be exercised”. Although the authorities do suggest some such situations.
The provision that specifies that offences that carry life imprisonment cannot be included on a Form 1 was a 1987 amendment to the law, and his Honour explained that this, therefore, reveals that other serious criminal offences can be taken into account in this manner.
But the then NSW Chief Justice stressed that this applies only as long as the most serious offence, or “an appropriate range of offences” appear on the indictment, and then there should be “no objection to the inclusion of some” serious offences on a Form 1.
But it is inappropriate to include “more serious offences on a Form 1”, when the maximum sentence available for the principal offence on the indictment “would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct” to be covered in sentencing.
His Honour further noted that a balance must “be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1”, as the charges on the indictment should “reflect the total criminality of the whole course of criminal conduct”.
And this balancing act is up to the Crown and will “generally occur in the context of charge negotiations between the prosecution and the defence”.
“Two distinct, but consistent, rationales have been advanced for the Form 1 procedure”, Justice Spigelman continued, with the first being that it promotes rehabilitation, as the offender will emerge after serving their sentence for the principal offence with a “clean slate”.
The second point is there is a utilitarian value in having an offender admit guilt, as it saves law enforcement resources. And the inclusion of the offences on a Form 1 means they receive less priority and hence, it provides a greater incentive for an offender to admit guilt.
And it is up to the sentencing judge to determine that if it is appropriate to accept admission of guilt over certain offences that receive no separate penalty, especially to ensure that the process does not result in a sentence that is manifestly inadequate compared to the criminal conduct.
“Striking the appropriate balance between overloading an indictment and ensuring that the indictment… adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown,” then NSW Chief Justice Spigelman said.
“The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are ‘taken into account’ on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences,” his Honour made certain in ending his ruling.
And the other justices making up the panel of the NSW Court of Criminal Appeal agreed with their colleague’s guideline judgment.
That panel included then Chief Judge at Common Law James Wood, and then NSWCCA Justices Michael Grove, Brian Sully and Greg James.
