[2020] NSWCCA 125
Lee, Matthew v R [2016] NSWCCA 146
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120
[2011] HCA 39
Panetta v R [2016] NSWCCA 85
PG v R (2017) 268 A Crim R 61
[2017] NSWCCA 179
R v Borri [2021] NSWDC 189
R v Thomson & Houlton (2000) 49 NSWLR 383
Source
Original judgment source is linked above.
Catchwords
[2020] NSWCCA 125
Lee, Matthew v R [2016] NSWCCA 146
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Panetta v R [2016] NSWCCA 85
PG v R (2017) 268 A Crim R 61[2017] NSWCCA 179
R v Borri [2021] NSWDC 189
R v Thomson & Houlton (2000) 49 NSWLR 383
Judgment (7 paragraphs)
[1]
The applicant's personal case
The sentencing Judge dealt with the applicant's subjective case from [153]-[200]. There were a number of letters from friends and family members, a psychiatric report from Dr O'Dea, a supportive letter from a prison chaplain and a letter of apology from the applicant himself. There was also a sentence assessment report ("SAR") from a community corrections officer based at Parklea.
Judge King took a guarded, if not sceptical, view of the material tendered on the applicant's behalf. His Honour noted where the referees did not refer to the applicant's remorse. When the applicant's cousin said, "I know he is extremely contrite", his Honour said, "[t]here is no statement as to how he might know the offender is extremely contrite, or whether that is just simply his belief." His Honour appeared to place little to no weight on the letters of apology saying, "It is very simple to write a letter stating, 'I have honest feelings of guilt, shame and remorse for the victims and their families.'"
While I would take a more benevolent view of the material tendered on the applicant's behalf, the reality is that the subjective case does not detract from the grave criminality of the offences, the lengthy course of criminal conduct and its impact on the victims' lives.
The applicant was born in June of 1961 and is now a little over 62 years old. At the time of sentence (and presumably now) he had no previous criminal history. Several of the referees spoke well of him. Given the many years of offending and the number of victims, it is inapt to describe the applicant as a person of good character and his lack of criminal history must be afforded limited weight.
While I take a guarded approach to the applicant's letter of apology and the hearsay expressions of remorse and contrition, I note they are to be considered in the light of the applicant's plea of guilty to the 26 offences. The author of the SAR said he verbalised concern for the victims and "did not minimise his role in the offending or the impacts it had on the victims and their family".
The SAR assessed the applicant's risk of re-offending as falling within the "Below Average Risk Category" relative to other adult male sex offenders. A senior psychologist at Parklea, based on statistical tools, estimated his "risk of re-offending over a five-year period [at] 3.15%" while noting, perhaps self-evidently, that these tools could not say whether "[the applicant] will or will not fall into that 3.1% cohort". A "strong influence" on the risk of re-offending was the applicant's age. The sentencing Judge found "his increasing age may assist in relation to rehabilitation and also to reducing the prospect of re-offending" and "it is not as though there is no prospect of rehabilitation".
Dr O'Dea did not diagnose the applicant with any major psychiatric illness. He had a speech impediment, some trauma in his past which, in Dr O'Dea's opinion, pointed to an alcohol use disorder. Unsurprisingly, the facts of the case supported a diagnosis of "paedophilia". Using an "actuarial risk assessment tool, the STATIC 99 R", Dr O'Dea assessed the applicant to be in the "Low Risk category for sexual re-offending". However, this view was expressed tentatively, and Dr O'Dea stressed it turned on the applicant remaining alcohol free and not having access to children. With those risk factors in play, there remained some risk of re-offending.
Nothing in Dr O'Dea's report reduces the applicant's moral culpability.
Nothing in the subjective case reduced the objective seriousness of the individual offences or the lengthy course of offending.
[2]
Affidavit on re-sentencing
The applicant read an affidavit dated 2 March 2023 concerning his experience and performance since he was taken into custody. Paragraphs 2 and 3, which related to matters that existed before sentence, were not pressed.
The applicant had been transferred between several prisons and is currently held in protection at Lithgow Correctional Centre.
The applicant explained the onerous conditions in custody arising from precautions necessitated by the Covid-19 pandemic. He has had no in-person visits from his family since March 2021 when visits were restricted due to the Covid-19 precautions. Since he was transferred to Lithgow his family is too far away to travel to the gaol. The applicant has been locked in his cell or pod for around 160 days in total, including for one period of two months. This caused him to become extremely anxious.
He has completed three Corrective Services programs (Health Survival Tips, Remand DV Intervention and the Positive Lifestyle Programme) and began the RUSH programme, which is designed to assist with impulse control and decision making, before he was relocated. He expressed his willingness to undertake any course that is recommended.
He has maintained employment in every facility, including as "Head Sweeper", and is enrolled in a TAFE Course providing a Certificate II in Warehousing. He has had no disciplinary charges since he was taken into custody.
[3]
The objective seriousness of the offences
Considered in isolation, several of the offences fell towards the lower end of seriousness for offences of their kind. However, each involved a significant breach of trust and must be considered in the context of many years of abuse of four children.
Other counts were more serious offences of their kind and, again, are to be evaluated in the context of the whole history of abuse.
It is unnecessary and of little utility to place the offences that do not attract a standard non-parole period on a putative scale of seriousness ranging from low, mid-range through to high range. However, where there is a standard non-parole period, and to give effect to the provision in s 54A(2) of the Sentencing Procedure Act, it is appropriate to do so.
There was an applicable standard non-parole period in relation to counts 2, 3, 5 and 8. As to counts 1 and 10, a standard non-parole period was introduced during the period alleged in the charge. That is, it is not clear whether those offences were committed after the introduction of the standard non-parole period for the particular offence. The sentencing Judge did not apply the standard non-parole period and the respondent did not contest that approach. [1] The standard non-parole period applies to an offence falling within the "middle of the range of objective seriousness", and I record the following findings as the objective seriousness of the offending:
Count 2 - Below the mid-range of objective seriousness.
Count 3 - Below the mid-range of objective seriousness.
Count 5 - In the lower part of the mid-range of objective seriousness.
Count 8 - Around the mid-range of objective seriousness.
Putting aside the relative seriousness of the individual offences, which will be reflected in the indicative sentences, the course of criminal conduct engaged in by the applicant was lengthy and extremely serious. This must be reflected in the aggregate sentence.
[4]
Objectives of punishment and relevant sentencing considerations
The purposes of sentencing are set out in s 3A of the Sentencing Procedure Act. Each has some relevance but of particular significance in the present case is the prevention of crime by deterring others from committing similar offences. The applicant must be held accountable, adequately punished, and this appalling course of conduct must be denounced. The sentence imposed must recognise the serious harm caused to the victims. Given the offender's age and the length of the sentence imposed, the protection of the community is of less significance and personal deterrence will be achieved by the inevitably long sentence that must be imposed. The objective seriousness of the offending means the sentence must be of such a duration that the promotion of the applicant's rehabilitation will receive less weight. Even so, the applicant's rehabilitation remains an objective of the sentencing exercise.
Where applicable I have used the standard non-parole period in the manner explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, noting that pleas of guilty were entered in each instance and that two of those offences were well below the "middle of the range of objective seriousness" and one fell towards the lower end of the putative "middle of the range".
I have taken into account the harm done to the victims by reference to the victim impact statements and by having regard to the trauma of sexual abuse as it is now understood: Sentencing Procedure Act, s 30E.
In relation to count 23, I have taken into account the sentence imposed by Judge Ellis on Ms TS (one year and one month). Unlike Judge King, I have not indicated precisely the same individual sentence as imposed on TS. However, I have applied the parity principle noting the differences in the subjective cases, the slightly different roles of each of the offenders and the egregious breach of trust involved in the child's mother involving herself in the sexual abuse of her child. By the time of the offence in count 23, the applicant had abused three different children over many years. The sentence I will indicate is higher than that imposed on TS but no justifiable sense of grievance could be engendered in the applicant.
Like the sentencing Judge, I would impose an aggregate sentence. The table below sets out each of the individual indicative sentences I would have imposed if I were not imposing an aggregate sentence: Sentencing Procedure Act, s 53A(2)(b). In relation to each of the indicative sentences, I have applied a 25 per cent discount to the individual sentence I would otherwise have imposed. In compliance with s 54B(4), I have indicated the non-parole period for offences where a non-parole period existed at the time of the offence. Because these sentences are indicative in the context of an aggregate sentence, I have not reduced the sentences to days. There is some rounding and I have expressed the indicative sentences in decimal points (or fractions) of months.
OFFENCE MAXIMUM PENALTY AND STANDARD NON-PAROLE PERIOD ACTS CONSTITUTING INDICATIVE SENTENCE (BEFORE 25% DISCOUNT) INDICATIVE SENTENCE (AFTER 25% DISCOUNT)
OFFENCE
Count 1: Aggravated indecent assault of child under 16 years, namely 10 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment The applicant grabbed GS, touched her inner thigh and rubbed his erect penis against her buttocks 1 year 8 months 1 year 3 months
(Between 15 October 2002 and 16 October 2004)
Count 2: Aggravated indecent assault of child under 16 years, namely 11 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment with a standard non-parole period of 5 years The applicant touched GS's vagina over her shorts 18 months 1 year, 1½ months with a NPP of 10 months
(Between 15 October 2005 and 31 January 2006)
Count 3: Aggravated indecent assault of child under 16 years, namely 11 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment with a standard non-parole period of 5 years The applicant squeezed GS's crotch and buttocks and rubbed her vagina over her shorts 18 months 1 year, 1½ months with a NPP of 10 months
(Between 15 October 2005 and 31 January 2006)
Count 4: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. 20 years imprisonment Right after count 3, the applicant reached under GS's shorts and underwear and rubbed her clitoris 6 years 4½ years
(Between 15 October 2005 and 31 January 2006)
Count 5: Aggravated indecent assault of child under 16 years, namely 13 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment with a standard non-parole period of 5 years The applicant unzipped GS's shirt and grabbed, squeezed and licked her breasts and nipples 1 year 8 months 1 year 3 months with a NPP of 11.25 months
(Between 15 October 2005 and 16 October 2006)
Count 6: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. 20 years imprisonment The applicant placed his hands in GS's pants and rubbed her vagina and clitoris in a rough manner. He also grabbed her breasts over her clothes and hugged her 6 years 4½ years
(Between 15 October 2005 and 16 October 2006)
Count 7: Aggravated sexual intercourse with a child between 14 and 16 years, namely 15 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment The applicant rubbed GS's clitoris and vagina while she was in the bathtub 5 years 3 years 9 months
(Between 15 October 2006 and 16 October 2007)
Count 8: Aggravated indecent assault of child under 16 years, namely 15 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment with a standard non-parole period of 5 years The applicant separated GS's legs, laid on top of her and grinded his body and erect penis against her body. He also kissed her, put his hands under her clothes and squeezed her breasts 2 years 18 months with a non-parole period of 13½ months
(Between 15 October 2007 and 16 October 2008)
Count 9:
Incite person under 16 years to commit act of indecency, namely 14 years, contrary to s 61N(1) Crimes Act. 2 years imprisonment The applicant paid JG to watch him masturbate. He masturbated in front of JG and made her grab his penis until he ejaculated 1 year 9 months
(Between 17 April 2002 and 18 April 2003)
Count 10: Aggravated indecent assault of child under 16 years, namely 14-15 years, contrary to s 61M(1) Crimes Act. 7 years imprisonment The applicant grabbed JG's breast over her clothes 1 year 9 months
(Between 17 April 2002 and 18 April 2003)
Count 11: Incite person under 16 years to commit act of indecency, namely 14-15 years, contrary to s 61N(1) Crimes Act. 2 years imprisonment The applicant paid JG to watch him masturbate. He masturbated in front of JG while saying sexual things to her 1 year 9 months
(Between 17 April 2002 and 18 April 2004)
Count 12: Aggravated act of indecency with a child under 16 years, namely 12 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant masturbated in front of SS while they were both naked in the bedroom 18 months 13½ months
(Between 20 October 2008 and 21 October 2009)
Count 13: Aggravated act of indecency with a child under 16 years, namely 12 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant masturbated in front of SS in the bedroom 18 months 13 ½ months
(Between 20 October 2008 and 21 October 2009)
Count 14: Aggravated sexual intercourse with a child between 10 and 14 years, namely 12 years, contrary to s 66C(2) Crimes Act. 20 years imprisonment While masturbating himself (count 13) the applicant rubbed SS's clitoris. SS pressed her legs together and resisted, but the applicant opened her legs and rubbed her clitoris again 6 years 4½ years
(Between 20 October 2008 and 21 October 2009)
Count 15: Incite aggravated act of indecency with a child under 16 years, namely 13 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant made SS get into the shower and masturbate his erect penis. SS's mother entered the shower and masturbated the applicant in front of SS 2 years 18 months
(Between 20 October 2009 and 21 October 2010)
Count 16: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. 20 years imprisonment In the shower (count 15) the applicant rubbed SS's clitoris while he was being masturbated by her and her mother 8 years 6 years
(Between 20 October 2009 and 21 October 2010)
Count 17: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant masturbated himself in front of SS until he ejaculated 1 year 9 months
(Between 20 October 2010 and 21 October 2011)
Count 18: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment While masturbating himself (count 17) the applicant rubbed SS's clitoris 4 years 3 years
(Between 20 October 2010 and 21 October 2011)
Count 19: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment The applicant rubbed SS's clitoris 4 years 3 years
(Between 20 October 2010 and 21 October 2011)
Count 20: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment After count 19, the applicant licked SS's clitoris for some time 6 years 4 ½ years
(Between 20 October 2010 and 21 October 2011)
Count 21: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment The applicant removed SS's clothes and licked her clitoris 6 years 4 ½ years
(Between 20 October 2010 and 21 October 2011)
Count 22: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment After count 21, the applicant inserted his finger into SS's vagina. The applicant removed his finger when SS pulled away and continued to lick her clitoris. 6 years 4 ½ years
(Between 20 October 2010 and 21 October 2011) The applicant filmed count 20 and count 21
Count 23: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant made SS film him having sex with her mother 2 years 18 months
(Between 1 December 2010 and 31 January 2011)
Count 24: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant masturbated in front of SS until he ejaculated. He made her hold his balls and kiss his penis 2 years 18 months
(Between 20 July 2012 and 21 October 2012)
Count 25: Aggravated sexual intercourse with a child between 14 and 16 years, namely 15 years, contrary to s 66C(4) Crimes Act. 12 years imprisonment After count 24, the applicant made SS put his penis inside her mouth and thrusted his penis multiple times 6 years 4½ years
(Between 20 July 2012 and 21 October 2012)
Count 26: Incite aggravated act of indecency with a child under 16 years, namely 12-13 years, contrary to s 61O(1) Crimes Act. 5 years imprisonment The applicant made TS lick breast milk of his mother's breast and suck her nipple 2 years 18 months
(Between 12 July 2006 and 13 July 2008)
[5]
Turning to the issue of totality and to questions of what is often described - in setting an aggregate sentence - as "notional" accumulation, it is clear that none of those individual indicative sentences could encompass the criminality involved in the others. Further, the aggregate sentence must attempt to vindicate the dignity of each of the four victims and recognise the length of the period of offending. There must be a significant degree of notional accumulation within the sentence. Where two of the offences were constituted by different acts which occurred during a single incident, I would have ordered those sentences to be served largely, if not entirely, concurrently. There would also have been a degree of concurrence for the offences committed against an individual child. However, the length of the duration of the offending would require a degree of accumulation, especially with regards to GS and SS.
I would impose an aggregate sentence of 14 years.
I would make a finding of special circumstances under s 44(2) Sentencing Procedure Act and make a modest adjustment to the aggregate non-parole period. The special circumstances arise from the applicant's age at the time of sentence, his likely age upon release, his need for a lengthy period of supervision upon release and the onerous conditions of his incarceration to this point. The adjustment is only to the extent of some six months because the aggregate non-parole period cannot be reduced further and remain sufficient to encompass the extent of the objective criminality of the applicant's offending. I would impose a non-parole period of 10 years.
[6]
Orders
For the foregoing reasons, I propose the following orders:
1. Extend time in which to lodge the notice of intention to appeal.
2. Grant leave to appeal against sentence.
3. Allow the appeal.
4. Quash the aggregate sentence imposed in the District Court on 5 February 2021 and in lieu thereof impose an aggregate sentence of 14 years commencing 26 June 2019 and expiring on 25 June 2033 with a non-parole period of 10 years commencing 26 June 2019 and expiring on 25 June 2029.
5. The applicant will be eligible for release to parole at the expiration of the non-parole period.
6. Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), the applicant is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.
[7]
Endnote
Respondent's Written Submissions, dated 5 April 2023, at footnotes 50-51.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 June 2023
South Wales
Jurisdiction: Criminal
Citation: [2021] NSWDC 189
Date of Decision: 05 February 2021
Before: King SC DCJ
File Number(s): 2019/197730;
2019/197761
HEADNOTE
On 5 February 2021, the applicant was sentenced by Judge King SC in the District Court to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years. The applicant pleaded guilty when the case was still before the Local Court to 26 sexual offences against four children. Each child was a member of the applicant's family or the child of a woman with whom he was in a relationship. By virtue of his early plea of guilty, the applicant was entitled to a 25% statutory sentencing discount.
When delivering judgment, the sentencing Judge did not say whether a sentencing discount was applied to the indicative sentence nominated for each offence. However, 21 months after the applicant's sentence and 27 days after a notice of appeal was filed, an amendment was made to the judgment on NSW Caselaw, which annexed "JusticeLink entries demonstrating that a 25% discount was allowed in respect of each plea". A hyperlink to those entries was included in the online version of the judgment.
The applicant appealed against his sentence on three grounds:
1. The sentencing Judge failed to take into account the applicant's plea of guilty.
1A. The sentencing Judge did not comply with s 25F(7) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because his Honour failed to explain how the sentencing discount was applied and, if it was not, why it was not applied.
2. The aggregate sentence was manifestly excessive.
The Court, granting leave to appeal, upholding the appeal on grounds 1 and 1A and resentencing the applicant, held (per Hamill J, Simpson AJA and Button J agreeing):
In respect of ground 1 and 1A
1. It is important that sentencing judges acknowledge and quantify the discount given for a plea of guilty. The extent of the discount should be articulated and explained to the offender. When delivering judgment, the sentencing Judge did not say whether he was taking the applicant's plea of guilty into account or that he had reduced the indicative sentences by the sentencing discount prescribed in Pt 3 Div 1A of the Sentencing Procedure Act: [1], [2], [16], [35]-[45].
2. When there is uncertainty as to whether a discount is provided for an offender's plea of guilty, the Court will generally intervene and exercise the sentencing discretion afresh. While the sentencing Judge said the applicant had pleaded guilty, this did not amount to a statement that a discount was provided. The arithmetic in relation to 15 of the 26 indicative sentences raised further doubts that the applicant received the discount to which he was entitled: [1], [2], [39]-[40], [49], [52].
3. In dealing with the appeal, the Court ignored the amendment to the judgment and the hyperlink to the JusticeLink record. The timing of the amendment was problematic and the Court could not be certain of the reliability of the record. There was significant doubt that the applicant received the benefit of entering his plea of guilty in the Local Court and the Judge had not explained the way in which the sentence was calculated. Grounds 1 and 1A were upheld: [1], [2], [32], [52].
Zhang v R [2018] NSWCCA 82; Lee, Matthew v R [2016] NSWCCA 146, applied; R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Woodward v R [2014] NSWCCA 205; Wei v R [2015] NSWCCA 66; Edwards v R [2017] NSWCCA 160, considered. Cullen v R [2014] NSWCCA 162; Tran v R [2020] NSWCCA 39, distinguished.
In re-sentencing the applicant
1. The Court quashed the aggregate sentence imposed by the District Court and imposed an aggregate sentence of 14 years, with a non-parole period of 10 years.
Submissions
The applicant submitted that the sentencing Judge erred by failing to apply the statutory sentencing discount to the sentences and fell into error by failing to give reasons in breach of s 25F(7)(b).
It was further submitted that if, contrary to that primary submission, the Court found that the sentencing Judge did apply a sentencing discount, his Honour failed to comply with s 25F(7)(a) because he did not indicate the way the sentence imposed was calculated. It was submitted that there are only two possibilities: his Honour failed to comply with one or other of s 25F(7)(a) or s 25F(7)(b).
The applicant submitted that the purpose of provisions such as s 25F(8) is to protect the validity of the sentence until the asserted error is considered by the Court of Criminal Appeal, but does not save a failure of compliance with the provisions from constituting an error of law. The applicant relied on Panetta v Regina [2016] NSWCCA 85, which considered the interaction between ss 23(6) and 101A of the Sentencing Procedure Act. It was submitted that there is no relevant distinction between ss 25F and 23(6), which says that "the failure of a court to comply with the requirements of subsection (4) [specifying and giving reasons for giving a discount for assisting authorities] does not invalidate the sentence". N Adams J found (at [36]) that:
"… the failure to comply with subs 23(4) is an error of law affecting the sentence which requires this Court to consider the issue of resentencing under s 6(3) of the Criminal Appeal Act 1912 (NSW)."
The respondent accepted that the sentencing Judge did not make specific reference to the quantum of the discount for the applicant's early pleas of guilty. However, it relied on four matters to support a conclusion that his Honour did afford the applicant a 25 per cent discount.
First, there was no dispute between the parties that the applicant was entitled to a discount of 25 per cent by virtue of the operation of s 25D(2)(a) of the Sentencing Procedure Act. This was referred to in the sentencing proceedings and in written submissions. For example, the following exchange took place between the sentencing Judge and counsel appearing for the applicant:
"LLOYD: … There appears to be agreement with the Crown in relation to the timing of the pleas, that a 25% discount is justified.
HIS HONOUR: Yes, that's accepted."
Secondly, his Honour was "explicitly cognisant" of the fact that pleas of guilty were entered having said at [204] of the sentencing judgment:
"I have previously noted that the plea of guilty was in effect from 20 August 2020 when he pleaded guilty at the Port Macquarie Local Court."
It should be noted that his Honour went on to say:
"That was 14 months after he had been arrested in respect of these matters on 26 June 2019."
Limitations on the respondent's arguments
While the four matters raised by the respondent have some force, there are significant limitations to each of them, particularly in the context of the clear terms of the legislation and the arithmetic relating to many of the individual indicative sentences.
As to the first argument, the exchange between the sentencing Judge and counsel and the fact that the parties were as one as to the proper approach to the sentencing discount, there was a substantial delay between the hearing and the judgment. The hearing took place on 24 November 2021 while the judgment was delivered more than two months later. It is not safe to conclude that the agreed position of the parties was reflected in the sentence imposed after such a lengthy period.
As to the second matter, a statement that the applicant pleaded guilty does not equate to the provision of a sentencing discount. The provisions allow, albeit in relatively rare circumstances, for no discount to be provided. Further, the observation that the plea was entered "14 months after [the applicant] had been arrested" is opaque and could be seen to suggest the plea had less utilitarian value. That comment undermines the reliance placed by the respondent on the "elementary" nature of the sentencing discount. Even experienced judges, given the pressure under which they work in sentencing courts, can overlook a basic sentencing principle.
As to the third matter, the fact that Judge Ellis applied a 25 per cent discount to a co-offender and that Judge King settled on the same indicative sentence, does little to advance the argument. While the sentencing Judge said there was little to distinguish the cases, they were different offenders with different roles and subjective circumstances. A strict compliance with the parity principle might be explicable for many reasons.
The fourth matter - the JusticeLink record - raises one of the problems at the centre of the appeal. In Cullen complaint was made that the sentencing Judge did not state the commencement date of the sentences imposed, in circumstances where it was not immediately clear whether his Honour was imposing a separate sentence for each offence (in which case he would have been required to stipulate the commencement date, non-parole period and the first day on which the offender would be eligible for parole for each offence) or an aggregate sentence for all the offences (in which case he only needed to identify the commencement date for the aggregate sentence and the non-parole period): Sentencing Procedure Act, ss 53, 53A, 54B(4). Adamson J (as her Honour then was) found that the sentencing Judge imposed an aggregate sentence and the record of the sentence on JusticeLink was consistent with his Honour's obligations under ss 53A and 54B(4) of the Sentencing Procedure Act. The case is distinguishable. Moreover, the way in which the JusticeLink record was incorporated into the judgment by an amendment, and the timing of that amendment by reference to the date of sentence and the date the appeal was lodged, is problematic.
Some relevant cases
At least since the decision in Thomson & Houlton, this Court has emphasised the importance of sentencing judges acknowledging and quantifying the discount given for an early plea of guilty: see Thomson & Houlton itself at [52]. The policy benefits of acknowledging the discount in a clear and transparent way has been emphasised: Woodward v R [2014] NSWCCA 205 ("Woodward") at [11].
In Zhang v R [2018] NSWCCA 82 ("Zhang") Hoeben CJ at CL set out at [51] the relevant principles when there was a failure to quantify the discount for an early plea of guilty:
"Although quantification of the discount for an early plea of guilty is preferable, a failure to do so does not necessarily by itself establish error: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [82]-[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26]. Whether a failure to explicitly state that a guilty plea has been taken into account indicates that the plea was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v The Queen [2014] NSWCCA 205 at [6]. Where there is a real possibility that the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37]."
In Wei v R [2015] NSWCCA 66, Adamson J (as her Honour then was) said at [26] that "[t]his Court ought not, in my view, lightly infer that a task which is undertaken regularly and under significant time pressure has been undertaken with such obvious omission as to fail to apply a discount for a plea of guilty." On the other hand, in Edwards v R [2017] NSWCCA 160 ("Edwards"), Garling J said at [41] "[i]t can be accepted that the sentencing Judge was experienced in the criminal law and that he can be taken to have understood the matters to which a judge is obliged to have regard when imposing a sentence" but that the "failure to attend diligently to his statutory obligation, of which he was well aware, is simply inexplicable unless he determined to give the plea no weight at all".
The approach taken by Basten JA and McCallum J (as their Honours then were) in Lee, Matthew v R [2016] NSWCCA 146 may be instructive in the applicant's case. Their Honours could not reach a firm conclusion as to whether a discount was applied and said at [20]-[21]:
"Despite the commendable simplicity of the ground as formulated, it relied upon an inference that the judge did not take the early pleas into account, an inference drawn from the absence of any reference in the judgment on sentence to the pleas, or to the availability of a discount. The ground might have been better formulated in the alternative, namely that the trial judge erred, (a) in failing to take into account the early pleas of guilty, or (b) in failing to explain in the reasons for judgment how such pleas had been taken into account. Despite the fact that the ground was not so expressed, we propose to deal with it on the basis that it was so expressed. Both parties acknowledged that there was no reference to the pleas or the discount in the reasons of the sentencing judge. The Director nevertheless submitted that it should be inferred that they had been taken into account; the applicant submitted that the absence of any reference, taken with other factors, demonstrated that they had not.
It is not possible to reach a firm preference for one view or the other; however, it is that unresolvable uncertainty which demonstrates error in failing to deal with the matter in the judgment. The Director should not succeed on a basis which denies an error of law. For that reason, the appeal should be upheld. That has consequences for resentencing, which will be addressed below."
An analysis of the indicative sentences
When a court is imposing an aggregate sentence, the sentencing discount is applied to the indicative sentence: see PG v R [2017] NSWCCA 179 (Button and N Adams JJ, Basten JA dissenting). See also Berryman v R [2017] NSWCCA 297 at [29] (Leeming JA, Bellew and Lonergan JJ) and Hanna v R [2020] NSWCCA 125 at [78] (per Simpson AJA).
Judge King set out the individual indicative sentences of imprisonment at [205]-[229]:
Count 1 Sequence 2 - 1 year and 6 months.
Count 2 Sequence 3 - 2 years and 3 months, with a non-parole period of 1 year and 8 months.
Count 3 Sequence 7 - 2 years and 3 months, with a non-parole period of 1 year and 8 months.
Count 4 Sequence 24 - 6 years.
Count 5 Sequence 9 - 2 years and 3 months, with a non-parole period of 1 year and 8 months.
Count 6 Sequence 25 - 6 years.
Count 7 Sequence 27 - 4 years.
Count 8 Sequence 17 - 1 year and 9 months, with a non-parole period of 1 year and 3 months.
Count 9 Sequence 23 - 9 months.
Count 10 Sequence 21 - 1 year.
Count 11 Sequence 22 - 8 months.
Count 12 Sequence 29 - 1 year and 6 months.
Count 13 Sequence 30 - 1 year and 6 months.
Count 14 Sequence 35 - 6 years.
Count 15 Sequence 36 - 2 years.
Count 16 Sequence 7 - 6 years and 4 months.
Count 17 Sequence 32 - 1 year and 9 months.
Count 18 Sequence 10 - 4 years.
Count 19 Sequence 11 - 4 years.
Count 20 Sequence 12 - 4 years and 4 months.
Count 21 Sequence 15 - 4 years and 6 months.
Count 22 Sequence 16 - 4 years and 4 months.
Count 23 Sequence 33 - 1 year and 1 month.
Count 24 Sequence 34 - 1 year and 9 months.
Count 25 Sequence 21 - 5 years.
Count 26 Sequence 28 - 1 year.
In more than half of these indicative sentences, it is not apparent what the starting point would have been if the sentencing Judge applied a 25 per cent discount to the starting point. It would not have been a round number of years or months. This applies to fifteen of the counts, that is, counts 7, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25 and 26. In respect of the remining eleven counts, that is counts 1, 2, 3, 4, 5, 6, 9, 12, 13, 14 and 24, it is possible to "reverse engineer" (as it was put by Garling J in Edwards) the result so as to identify a round number or sensible starting point.
It is arguable, but not convincingly so, that the results came about following a degree of "rounding down". However, that would be to engage in speculation when there is nothing in the judgment to suggest that is how the indicative sentences were settled upon and the respondent did not suggest that the sentencing results were amenable to such a process. The only time in the judgment that his Honour referred to "rounding" was at [211] when he referred to rounding down the non-parole period for count 8 by 22 days.
Conclusion on grounds 1 and 1A
Based on the foregoing analysis, I am satisfied that grounds 1 and 1A must be upheld.
There is no doubt that ground 1A is established. The sentencing judgment failed to comply with the requirement under s 25F(7) to indicate to the offender, and to record - "when passing sentence" - whether the sentencing discount was applied and how the sentence imposed was calculated. If the record somehow made it clear that the sentencing discount was applied, this error may not have impacted on the outcome although it would remain an important omission.
In considering ground 1, in view of the timing of the amendment to the Caselaw version of the judgment, the Court should ignore the amendment and the hyperlink reference to the JusticeLink record. The Court cannot be certain of the reliability of the entries, the entries did not form part of the judgment as it was originally published and it is very unusual to incorporate such a record into an existing published judgment.
I am satisfied that the applicant has also established that ground 1 must be upheld. There is, at least, a significant doubt that the applicant received the benefit of entering his plea of guilty in the Local Court.
Accordingly, it is not necessary to resolve ground 2. Rather I will move immediately to exercise the sentencing discretion afresh. In doing so I have endeavoured not to be influenced by the indicative sentences nominated by the sentencing Judge or the aggregate sentence imposed. The exercise, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, is a genuine re-exercise of the discretion.
The respondent relied on the observation of R A Hulme J in Tran v R [2020] NSWCCA 39 ("Tran") at [26] that it is "elementary" that a plea of guilty in the Local Court will normally attract a reduction of sentence of 25 per cent.
Thirdly, the sentencing Judge referred at [88] to the sentence imposed on a co-offender (TS) in relation to count 23 and noted that Judge Ellis "allowed a 25% discount for the early plea". At [230] Judge King indicated the same indicative sentence as Judge Ellis had for this count. This was said to be a "compelling indication" that his Honour afforded the applicant a 25 per cent discount for his early pleas of guilty.
Fourthly, the foregoing submissions found support in the "JusticeLink entry for 5 February 2021 - the date the applicant was sentenced. The entry, which is included as an annexure to the published judgment, records that a discount of 25 per cent was included in the calculation of the indicative term specified in respect of each offence." The respondent submitted that "the JusticeLink record constitutes the formal record of the sentence" and that "this Court can and should have access to the formal record for the purpose of determining this ground". Reference was made to the District Court Rules 1973 (NSW) Pt 53 r 12 and Cullen v R [2014] NSWCCA 162 ("Cullen") at [36].
None of the respondent's arguments is capable of addressing the applicant's alternative complaint under the amended ground 1A. The purpose of the amendments introduced in April 2018 was to provide a prescriptive scale of sentencing discounts and to ensure the extent of the discount was clearly articulated and explained to the offender. This is calculated to encourage "early" and "appropriate" pleas of guilty and assuage any concerns that offenders were not given the benefit of an early plea, a matter discussed as long ago as the guideline judgment on pleas of guilty in the year 2000: R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 ("Thomson & Houlton") at [33], [38]. The timing of the amendment to the judgment did little to diminish any "scepticism" of the kind referred to by the former Chief Justice in the guideline judgment at [38].
It was held at [41] that the uncertainty warranted the intervention of the Court and the sentencing discretion was exercised afresh.
On some occasions, the Court has inferred that the discount had been applied.
In Tran the sentencing Judge made no mention of applying a quantified discount to the sentence imposed. Nor did the Judge say that he had considered the plea. R A Hulme J (McCallum JA and Button J agreeing) were satisfied that the sentencing Judge sentenced on the basis that Mr Tran was entitled to a 25 per cent reduction of sentence for his plea of guilty for a number of reasons referred to at [24]-[30], including: (i) the sentencing Judge opened his remarks on sentence by observing that Mr Tran pleaded guilty; (ii) it is "elementary" that a plea of guilty in the Local Court will attract a 25 per cent discount; (iii) the prosecution conceded in written submissions that Mr Tran was entitled to the "full discount"; (iv) the sentencing Judge referred to sentencing statistics that had been distilled solely to offenders who had pleaded guilty, suggesting his Honour appreciated that 25 per cent was the highest discount available; (v) his Honour was provided with a schedule of comparable cases which specified the level of discount for a guilty plea; and (vi) his Honour made remarks about the need to impose a sentence in accordance with the range indicated in the statistics and comparable cases, which only included sentences that had been discounted because of the pleas of guilty.
In Zhang Hoeben CJ at CL (Fullerton and Davies JJ agreeing) was satisfied that there was no "real possibility" that the sentencing Judge did not properly consider and apply an appropriate discount in respect of Mr Zhang's plea of guilty, despite the fact that his Honour did not refer to a specific discount in his reasons. Hoeben CJ at CL was so satisfied in light of the following matters (i) numerous references in the sentencing proceedings to the early plea of guilty, including four days before the judgment was handed down; (ii) the explicit reference to the fact of the early plea in the sentencing judgment; (iii) the fact that his Honour had already handed down three sentences on Mr Zhang's co-offenders that day, in which he expressly referred to the discount for an early plea of guilty; and (iv) the "mathematical neatness" of the sentence (adding 25 per cent to the figures suggested a starting point of a non-parole period of 9 years with a balance of term of 3 years, i.e., a total sentence of 12 years compared to the total sentence of 9 years actually imposed on Mr Zhang).
This "reverse engineering" argument was held by Garling J to be an inadequate basis in the circumstances of the case for inferring that the sentencing Judge was giving a discount, despite the mathematical neatness of the figures: Edwards at [40]. See also Woodward at [11].
Other cases where the Court has intervened on similar grounds are Convery v R [2014] NSWCCA 93 and Valentine v R [2020] NSWCCA 116.