Hemsworth v R

The question of assistance in the proceedings below

1. There was evidence and argument at first instance relevant to the application of s 23 CSPA.
2. As his Honour found (Reasons [56]), on 5 March 2021, while the applicant was on remand, he was the victim of an unrelated crime committed against him by other inmates. They threatened the applicant with a gaol-fashioned "shiv" and demanded that he transfer $3,000 into a nominated bank account. The applicant complied by telephoning a friend to transfer the funds on his promise to repay. The offenders made clear to the applicant that payments of "a few hundred" would be expected every month (Appeal Book ("AB") 78). The applicant was threatened with actual violence if he reported the matter. The following day the applicant reported the offence to Corrective Services and then to police. I interpolate, according to the evidence of the OIC, Detective Sergeant Waddell, admitted provisionally in this Court, the applicant's friend, Mr Reitdorf, had reported the matter immediately to correctional centre staff (T10.10-20).
3. During proceedings on sentence, I infer at the request of the applicant's legal representatives, the Crown tendered the Court Attendance Notices and Facts Sheets for two of the three offenders (AB 67-84). The third offender was the person into whose account the funds were transferred. While the statement made by the applicant to police was not tendered, the content of the police facts makes it clear that the applicant made a statement to police. The applicant's statement of 6 March 2021 was attached to Ms Hoile's second affidavit of 8 February 2024, provisionally read on the hearing of the appeal (T3.5). The statement commences with the usual assurance to the effect that the statement is an accurate account of the evidence the maker would be prepared to give in court if necessary.
4. The matter of assistance to police was raised by counsel appearing below during an exchange with his Honour in the following terms (AB 16-17): "DAVIES: … Your Honour has the documents which have been tendered… the court attendance notices, indicating a number of persons… held a knife to the throat of this offender and forced from him the amount of $3,000. He obviously has cooperated with the police and given a complaint, a statement to the police, and I'm instructed that he will be giving evidence against those offenders… The question is does that then amount to a s 23 question? Under s 23… any assistance given to police can be taken into account, even if it's for another offence, and also under that section any degree of discomfort or otherwise harsher circumstances. Your Honour would note… giving evidence against other inmates in a gaol would place this person in great difficulty… HIS HONOUR: Do you say it justifies a discount of some type? DAVIES: I would be asking for that, or your Honour utilise it as a special circumstance as an alternative." Obviously, the reference to s 23 is to s 23 CSPA. Counsel had also referred to the unrelated offending but not the question of assistance in his written submissions (AB 161-2). The emphasis was on the time the applicant spent on protection after the offending of 6 March 2021 was reported to police.
5. As I have already recounted, Judge Buscombe was not persuaded that he should make a finding of special circumstances (Reasons, [56]). In this context, he did not mention counsel's "alternative" in relation to assistance. However, his Honour continued (Reasons, [56]): "The offender has been in custody since his arrest and the sentence will be backdated to 21 May 2019 to reflect the period of pre‑sentence custody. I note that while in custody the offender has been the subject of offences committed by other inmates upon him, including demand money with menaces. It was submitted that he is likely to spend much of his time in strict protection and I should have regard to that when imposing sentence. I have no evidence before me, however, as to what are the likely conditions of imprisonment of the offender should he opt to continue to remain in protection and how those conditions differ from that of an ordinary prisoner."
6. His Honour did not expressly refer to s 23 CSPA.

Summation

1. Judge Buscombe expressed the following conclusion before passing sentence (Reasons [59]): "Violent offences again young vulnerable children resulting in very severe injuries are abhorrent to all right-thinking members of our community. Here, effectively, a little girl's future has been taken from her and her family. The failure to seek prompt medical treatment for the child was extremely callous. Offenders who commit such offences against young vulnerable children must receive very significant sentences in order to deter the offender concerned and others from such truly wicked conduct. Offences involving perversion of the course of justice are always serious as they have the capacity to undermine the justice system and the integrity of the courts." The aptness of these observation could hardly be gainsaid.

Summary of applicant's argument

1. The submissions of Mr S Flood, who appeared for the applicant with Mr M Hunter of counsel, proceed on the premise that a reduction in sentence for assistance in accordance with s 23 CSPA was raised by counsel appearing for the applicant on the proceedings on sentence below (see [44]-[48] above). The question of whether the applicant was entitled to a reduction in sentence on account of assistance rendered to authorities is clearly a relevant sentencing consideration. The expression, "the offence concerned or any other offence" appearing at the end of s 23(1) demonstrates that the relevance of assistance to law enforcement authorities is not limited to the offence with which a Court is concerned to sentence the offender; it extends to "any other offence": RJT v R [2012] NSWCCA 280; 218 A Crim R 490 at [2] per Basten JA and [13] per Adams J; R v XX [2017] NSWCCA 90; 266 A Crim R 132 at [34] per Beech- Jones J (as his Honour then was) (Bathurst CJ and R A Hume J agreeing).
2. Notwithstanding the considerations set out in the immediately preceding paragraph, it is quite clear that his Honour made no mention of s 23 CSPA in his reserved judgment which was otherwise thoroughly comprehensive. While his Honour referred to the offending against the applicant in custody, he did so only by reference to the consideration that the applicant's time in custody may be harsher than other inmates. The absence of any reference to s 23 CSPA or expressed consideration of whether a reduction in the sentence otherwise to be passed on the applicant was called for supported the inference that his Honour had not taken the applicant's assistance to authorities into account. This inference is also supported by the absence of any mention of counsel's "alternative" when his Honour dealt with special circumstances.
3. The consideration that his Honour's judgment was reserved supports the inference that his Honour overlooked the s 23 CSPA argument mounted on behalf of the applicant during the time taken for consideration. This is explicable because while the written submissions mentioned the offending to which the applicant was subjected in custody, no mention was made of s 23 CSPA.
4. Concerning Ground 2 it was argued that counsel appearing on the proceedings on sentence had failed in his duty to the Court (and to the applicant) by the manner in which the s 23 CSPA consideration was raised and presented. The applicant's statement to police evincing his willingness to give evidence was not tendered. There was no evidence from NSW Police Force assessing the value of the assistance provided by the applicant and no evidence such as that sought to be led for the first time in this Court "from which a conclusion could be drawn about the importance of encouraging prisoners to report offences committed in prison" (Applicant's Written Submissions ("AWS"), p 12 [40]). It was submitted, all this material was either available or obtainable on reasonable enquiry.
5. Counsel submitted that the sentencing discretion miscarried because the learned sentencing judge was deprived of material that informed "a very significant decision about whether to reduce the applicant's sentence" by application of s 23 CSPA.
6. Counsel argued further that the failure of the sentencing judge to take the argument into account and the failure of counsel to present proper material for the evaluation of the question led to a miscarriage of justice of a type which authorised and justified this Court receiving the new or fresh material provisionally admitted at the hearing, and taking it into account both as to whether the grounds of appeal had been established and on resentencing.

Summary of Crown argument

1. Ms E Nicholson, Crown Prosecutor, argued that s 23 CSPA confers a discretion, rather than an obligation, on the sentencing judge to reduce the sentence which would otherwise be passed. The Crown accepted that s 23 CSPA confers a discretion to reduce a sentence which extends to assistance in the investigation of a different offence, in which the applicant was not criminally involved and of which he was the victim (Crown Written Submissions ("CWS"), p 17 [83]). However, the absence of a connection between the offending for which the offender is to be sentenced and the offending in relation to which assistance is given is significant as to whether the discretion should be exercised at all, and if so the extent of the discount: XX at [36], [61] (per Beech-Jones J); Owens v R [2023] NSWCCA 198 at [76] (per Wright J).
2. The Crown submitted that the Court should not accept, however, that the material to which reference has been made (see [44]-[49] above), is to be understood as raising a s 23 CSPA discount or reduction on the sentence otherwise to be passed. The evidence went no further than demonstrating that the applicant had complained to police. There was no other material tendered demonstrating that s 23 was engaged. That counsel referred to s 23 CSPA in the way he did should not be understood as invoking the provision. Rather, the emphasis was on reduction of the s 44 CSPA statutory ratio between the non-parole period and the additional term by reference to the harshness of the applicant's conditions in custody. This argument was clearly dealt by the sentencing judge. At their highest, the submissions made below were equivocal. If s 23 CSPA had been invoked, the onus was upon the applicant to "establish precisely what information or assistance [he] has provided and its value, truthfulness, completeness, reliability, timeliness, and the various other matters to which the Court must have regard in s 23(2)": Ahmad v R [2021] NSWCCA 30 at [36] (Leeming JA and Harrison and Adamson JJ). The Crown submitted that the sentencing judge correctly understood the limited scope of the argument but rejected the asserted mitigatory effect because of the absence of supporting evidence (Reasons [56]).
3. To present a new case in this Court it is incumbent upon the applicant to demonstrate "exceptional circumstances" by demonstrating "the most compelling material available" was not used, which demonstrates a miscarriage of justice (see [65] below). The applicant has failed to meet that threshold. This Court should infer that his Honour understood and dealt with the argument addressed in the terms in which it was addressed and there has been no miscarriage of justice.
4. By reference to the principles articulated by Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (at [121]), the Crown argued that the conditions for the admission of what was in truth "new", rather than "fresh", evidence had not been established.

Determination of the second preliminary point

1. As Street CJ put it in R v Vachalec [1981] 1 NSWLR 351 (at 353) the Court of Criminal Appeal functions within "well-established jurisdictional boundaries". In appeals against conviction and against sentence, the Court functions as a court of error which normally only permits an "evaluation of the material placed before the first instance court". The Chief Justice observed that there are well-established bases "upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence." Moreover, the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice.
2. The applicable principles concerning the admission of additional evidence on sentence appeals were dealt with by the High Court of Australia in a unanimous judgment in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. The general rule was stated in the following terms (at 423 [2]): "As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry."
3. The Court expanded on the reasons for the rule and the limited nature of the exceptions to it in the following terms (at 425-6 [9]-[10]): "Section 5(1)(c) of the CAA confers on a person convicted on indictment a right to appeal by leave of the Court of Criminal Appeal against the sentence passed on the person's conviction. Where leave is granted, the determination of an offender's appeal is governed by s 6(3): '[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.' Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice." (CAA is the Criminal Appeal Act.)
4. To my mind, of central importance in the present circumstances are the Court's observations about the importance of "forensic choices" expressed in this way (at 427 [14]): "Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct." (My Emphasis.)
5. A familiar authority in this area relied upon by the Crown is Zreika v R [2012] NSWCCA 44; 233 A Crim R 460 (at [80]-[83]) where the Court emphasised the need for exceptional circumstances as a precondition for the consideration of new arguments raised for the first time on appeal, but which could have been put to the sentencing judge at first instance. In this context, Johnson J wrote of the need to demonstrate "that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence". His Honour regarded the principle as extending "in rare circumstances" to a factor which may operate in mitigation, "and which appears clearly from the material before the sentencing judge" that has been overlooked by both defence counsel and the sentencing judge.
6. It is apposite to set out in this context the passage of Ahmad v R relied upon by the Crown (at [36]) (see [58] above): "If an offender seeks to obtain a discount for assistance over and above the utilitarian discount for a guilty plea, then s 23 will apply and it will be incumbent to establish precisely what information or assistance the offender has provided and its value, truthfulness, completeness, reliability, timeliness and the various other matters to which the Court must have regard in s 23(2). The difficulty in the present case is that there is very little by way of evidence to establish what the applicant actually provided, as opposed to what was already within the Crown case. There are substantial difficulties in making the findings required by s 23(2).'
7. Reference should also be made to the influential judgment of Simpson J in Khoury at [104]-[121] concerning the admission of additional evidence on appeal. Her Honour referred to the statutory limits upon the Court's jurisdiction imposed by s 6(3) Criminal Appeal Act (at [110]). Her Honour emphasised the requirement that some other sentence should have been passed which must be satisfied before the Court of Criminal Appeal may substitute a sentence for that passed at first instance. Her Honour identified a tension between the fundamental principle requiring finality in litigation, on the one hand, and the expedient that injustice in the sentencing process "ought to be remedied" (at [105]), on the other. As to the question of additional evidence relevant to the question of injustice her Honour said (at [113]): "Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances."
8. Simpson J emphasised that the power to admit additional evidence is discretionary and that proper grounds must be established as a foundation for the exercise of the discretion. It should be said clearly that one example given by her Honour where additional evidence may be permitted is "where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated" (at [114]). The authority cited was Springer v The Queen [2007] NSWCCA 289; 117 A Crim R 13. That was a case where a discount had been allowed for assistance on the basis of "intelligence value" only. Post-sentence, a co-offender was arrested, and another identified on the basis of the information provided. The offender maintained his preparedness to give evidence. The case was held to be an exceptional one because the true significance of the assistance was not known. The evidence of post-sentencing events was fresh evidence. Both McClellan CJ at CL and Barr J, who gave the principal judgment, described the matter as falling into the "exceptional" category: per McClellan CJ at CL at [3]; per Barr J at [32]; Bergin J (as her Honour then was) agreeing with Barr J at [37].
9. In my judgment, the desire of a party to re-argue his case because the argument at first instance "was not presented in all of its aspects or as well as it might have been put" does not constitute exceptional circumstances: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 (per Mason CJ). As the Chief Justice said, "the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases". While a civil appeal, that principle is equally applicable here.
10. The additional evidence, whether new or fresh, received provisionally by the Court consisted of the evidence of the OIC regarding the value of the applicant's "assistance"; information from the Law and Justice Foundation of NSW, the Productivity Commission, and the Australian Bureau of Statistics ("ABS") concerning the relative prevalence of inmate-on-inmate violence in correctional centres and the prevailing culture within those centres; and further evidence from the applicant concerning the circumstances of his confinement including the perpetration on him of further assaults. Specifically, the evidence is located as follows: 1. Detective Sergeant Waddell (T8.5-14.40); 2. Ms Hoile's second affidavit of the 8 February 2024 annexing the paper on the Legal Needs of Prisoners published by the Law and Justice Foundation in July 2008; ABS statistics relating to the prevalence of assaults and statistical information about assaults in custody; screenshots from Part C, Section 8 of the report of the Productivity Commission titled "Report on Government Services 2023", which contained information regarding assaults in custody; and a copy of the applicant's police statement of 6 March 2021. 3. Ms Hoile's affidavit 25 September 2024 providing updated statistical information; and 4. The applicant's affidavit sworn on 4 September 2024 partly containing new evidence of his custodial experience (paras [1]-[8] and [11]).
11. In my opinion, none of this body of additional evidence is fresh evidence. It is all new evidence in the sense that each of the separate items is evidence that was available and could have been led on the proceedings on sentence before his Honour Judge Buscombe. Clearly evidence could have been called from the OIC, either in affidavit form or orally if, as seems likely from Ms Hoile's second affidavit as to delay, police would have refused to provide an affidavit of assistance for the first instance proceedings on sentence. Mr Hemsworth's police statement clearly was extant and could have been tendered. The Law and Justice Foundation paper and the ABS statistical information was clearly extant at the time of the proceedings on sentence. I acknowledge that the most recent statistics attached to Ms Hoile's affidavit of 24 September 2024 had not been published as at the date of the proceedings on sentence. However, of itself, this does not make that information fresh evidence as like information from prior years was available as demonstrated by her second affidavit of 8 February 2024.
12. To the extent to which the applicant's affidavit of 4 September 2024 contains new information, in my judgment it falls into that category of "evidence of events or circumstances or facts that have arisen entirely since sentencing" and according to Simpson J's analysis in Khoury (at [110]) "axiomatically … cannot be taken into account, no matter how compelling [it] may be".
13. The evidence does not fall into the category of evidence discussed in Springer v The Queen where evidence of subsequent events showed that the significance of events proved at the proceedings on sentence had been misapprehended or underappreciated. After all, the applicant does not challenge the sentencing judge's findings (at Reasons, [56]; see [48] above) that there was no evidence "as to what were the likely conditions of imprisonment of [the applicant] should he opt to continue to remain in protection and how those conditions differ from that of an ordinary prisoner".
14. None of the proposed additional evidence otherwise falls into the category of evidence of subsequent events casting light on the significance of evidence that was led, but which may have been underappreciated, nor is there any material actually led at the proceedings on sentence that obviously demanded consideration of a s 23 CSPA discount but was overlooked.
15. The Law and Justice Foundation document and the ABS statistics, taken together, may demonstrate a prevalence of inmate-on-inmate assault in custody greater than the prevalence of assaults in the general community. The Law and Justice Foundation document in particular demonstrates a culture among prisoners involving a code of silence. There is an "us and them" division between inmates and corrections officers that cannot be crossed. Inmates who report other inmates violate the code of silence and are regarded as "dogs". It is said this evidence about the prevalence of assaults and the culture amongst prisoners within the correctional centres demonstrates the public interest in encouraging inmates to come forward to assist authorities with reports of offences occurring within the prison population that would otherwise go unreported for the promotion of law and order within correctional centres.
16. To my mind, there are three important considerations which tell against the admission of this material for the first time on appeal.
17. The first is that it is within the experience of the courts exercising criminal jurisdiction that correctional centres are violent places and inmate-on-inmate assaults are of such a prevalence that they should be denounced, discouraged and deterred. This general experience also covers aspects of prison culture. The Law and Justice Foundation and the statistics provide little in addition to this experience and are certainly not compelling.
18. The second point is that, as the evidence at first instance and Judge Buscombe's findings make clear, the essence of the offence against the applicant was not an assault, serious or otherwise, but extortion. The central offending was demanding money with menaces, rather than the use of the "shiv" which constituted an assault. None of the charges laid against the two principal offenders, Miller and Eswaran, included assault as such in any of its various forms. The counts were of robbery armed with an offensive weapon; robbery in company; demand property by force in company with intent to steal; and knowingly dealing with the proceeds of crime. The proceeds charge was laid against Miller, but not Eswaran. While the Law and Justice Foundation document may have had some general relevance at a background level, statistics in relation to the prevalence of assault, even serious assault, did not.
19. The third point is that, with due respect to counsel, the matter has the flavour of an attempt to re-run the s 23 point because counsel at first instance "has failed to present the argument in all its aspects or as well as it might have been put" (Autodesk at p 303).
20. Like the decision in Ahmad v R (at [36]), the difficulty that the applicant is seeking to overcome is that there was "very little by way of evidence to establish" what assistance "the applicant actually provided, as opposed to what was already within the Crown case" or available and provided by other sources such as Mr Reitdorf, who advanced the extorted funds in the first instance. He is referred to in the police facts tendered at first instance: see for example AB 81-84. The call made by the applicant, albeit under duress was logged and recorded. Mr Reitdorf's part in the matter is fully described in the facts. From the police facts, one would infer that other lines of inquiry were identified and followed from contemporaneous call records and bank records.
21. I am not persuaded that there are exceptional circumstances justifying the reception of the additional or new evidence for the avoidance of a miscarriage of justice. I would reject the new evidence that was admitted provisionally at the hearing.

Disposition - Ground 1

1. I have no doubt, considering the matters I have summarised above (at [44] - [48]), that on the limited evidence before the Court, counsel appearing for the applicant below directly raised a s 23 CSPA reduction in the sentence that would otherwise have been passed for the consideration of the sentencing judge. In this regard, I accept the argument of Mr Flood and reject the argument advanced on behalf of the Crown. Counsel below referred to the facts of the offending against the applicant. He said, as I have recorded (at [47] above), "He obviously has co-operated with the police and given a complaint, a statement to the police, and I am instructed that he will be giving evidence against those offenders …"
2. That the application of s 23 CSPA was put as a "question" was no more than a rhetorical device. Counsel went on to correctly argue in accordance with RJT v R and R v XX that "any assistance given to police can be taken into account, even if it is for another offence". As the Crown accepts s 23 CSPA is capable of applying not just to "the offence concerned", but also to "any other offence" including an offence of which the offender was the victim: RJT v R at [2] (per Basten JA) and at [13] (per Adams J); R v XX at [36] and [53] (per Beech-Jones J).
3. Moreover, Counsel appearing below expressly invoked s 23(2)(g) (by his reference to harsher circumstances) in response to his Honour's question "do you say it justifies a discount of some type?". It was clear that at the hearing his Honour understood that s 23 was being invoked. Counsel was asking for something that went beyond mitigation. By his affirmative response to his Honour's question, he was seeking a specific discount, if not from the head sentence, then "in the alternative", from the non-parole period by way of a finding of special circumstances. That the matter was dealt with succinctly does not detract from the consideration that a relevant consideration had been directly engaged by evidence led in the proceedings on sentence and by the argument squarely put by counsel and was so understood at the hearing by an experienced judge. That the matter was not adverted to in counsel's written submissions is neither here nor there.
4. With respect, it is also clear that in an otherwise careful, thorough and comprehensive reserved judgment, which has not been otherwise called into question, his Honour failed to mention s 23 CSPA which had been directly raised. The submission, which was based on undisputed evidence, involved a substantial argument on a clearly relevant mitigatory consideration: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24].
5. As Hayne J emphasised in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [129]-[130]), a necessary corollary of the duty of a judge to state the reasons for arriving at the decision reached is that "the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result". This is an important principle and a rule of appellate restraint requiring the appellate court to accept the reasons of the judge under appeal at face value. While reasonable inferences may be drawn about what is implied from what is expressed, it cautions an appellate court against adding to, or subtracting from, the reasons expressed at first instance, subject always to the principle that the reasons given for a judicial decision must be read fairly and as a whole.
6. The sentencing judge was not required to refer to s 23 in terms, let alone set it out in full, particularly given the context provided by counsel's succinctness and economy of expression when raising the matter. But it should have been made clear from the reasons given that his Honour had understood the argument, as he clearly did at the time it was advanced, had considered it and either accepted or rejected it. It is important to bear in mind, as the Crown argued, s 23 confers a discretion, rather than an obligation, to reduce a sentence.
7. A number of things are clear, as I have said, from counsel's submissions at first instance. First, he clearly referred to evidence of assistance to authorities concerning offending other than the offending for which he was being sentenced. Secondly, he specifically referred to s 23 CSPA, even if he did not take the sentencing judge to the section and expound its terms. Thirdly, he asked for a "discount". And in the alternative he sought a reduction in the non-parole period which would otherwise be fixed by reference to the statutory ratio by s 44 CSPA. Finally, he expressly invoked "harsher circumstances in custody", one of the considerations mandated by s 23(2) CSPA.
8. His Honour addressed none of counsel's arguments, other than the last, and even that in a somewhat different context. While his Honour referred to the evidence of the offence perpetrated against the applicant, he said nothing about "co-operation" or assistance whether past or future. He did not show that he had turned his mind to the exercise of a discretion of whether or not to allow a discount and if so to what extent. When dealing with special circumstances, his Honour referred to the need for supervision in the community after the conclusion of the non-parole period. He did not refer to either the question of reducing that component of the sentence for assistance or whether harsher circumstances in custody may justify a finding of special circumstances where other considerations had not.
9. I appreciate that the only s 23(2) ground advanced to justify a favourable exercise of the s 23 CSPA discretion was the s 23(2)(g) consideration of harsher custodial conditions and that his Honour rejected that on the facts: Reasons [56]; see [48] above. From this, it may be said that had his Honour directly turned his mind to the s 23 submission made by counsel at first instance, he would have rejected it and declined to exercise the discretion to impose a lesser penalty on the applicant. To this extent then it may be said that his Honour's error was immaterial. However, identification of error does not create an entitlement on the part of an applicant to a new sentence: Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [19] (per Spigelman CJ); approved in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (per French CJ, Hayne, Bell and Keane JJ). The plurality in the High Court of Australia said that when a judge, inter alia, falls into House v The King ((1936) 55 CLR 499; [1936] HCA 40 at 505) error by failing to take some material consideration into account, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome: Kentwell at [42]. It is not necessary that the applicant establish materiality in the sense required in an appeal restricted to an error of law, or in an administrative law sense, rather "it is the duty of the Court of Criminal Appeal to exercise the discretion afresh" according to law. Their Honours said: "A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."
10. I am satisfied that the sentencing judge failed to take into account a material consideration which had been squarely raised by counsel appearing at first instance and for that reason fell into House v The King error and it is necessary for this court to re-sentence.

Ground 2 - Disposition

1. Given my determination that Ground 1 has been made good and it is necessary for the Court to exercise the sentencing discretion afresh, it is strictly not necessary that I consider Ground 2. Obviously Ground 2 raises questions about the competence of counsel who appeared below, and in that respect it is apposite to refer to R v Birks (1990) 19 NSWLR 677 where the principles were discussed in terms which have not been subsequently invariably applied. While that decision involved a conviction appeal, it does not in any way diminish the applicability of the principles to this sentence appeal. R v Birks concerned the failure of inexperienced counsel to cross-examine on important matters which left it open to the prosecutor to cross-examine the accused on the basis that his account was the product of recent invention. Having reviewed the relevant authorities, Gleeson CJ summarised the principles as follows (at 685): "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
2. There is no question here of flagrant incompetence. As I have said, counsel raised the question of co-operation squarely and in express terms sought a reduction on the sentence to be passed on that account. That he dealt with the matter succinctly does not suggest negligence or even errors of judgment. In truth, the elaboration of the argument sought to be introduced for the first time in evidence in this Court would, in my judgment, not have advanced its force, such as it may be, by much or at all.
3. Doubtless the argument could have been amplified or made more elaborately and, perhaps, by reference to materials of the type sought to be introduced in this Court. As I have said, however, I am not persuaded that they take the argument much beyond that which would have been within, as I have said, the experience of the District Court.
4. Frankly, mitigation of sentence in this matter was a difficult task for counsel, especially having regard to the objective seriousness of the offending which itself was constituted by offences of inherent seriousness. The applicant's less than compelling subjective case, his palpably false evidence and the complete absence of remorse for the catastrophic injuries he had inflicted on a toddler to whom he stood in loco parentis, all presented very significant challenges for any counsel. To have focused upon the question of a discount for assistance in the manner asked of this Court in respect of other offending may have been counterproductive before an experienced judge who had had the benefit of presiding at the applicant's trial and who was very well across all of the relevant facts, matters and circumstances relevant to sentencing this offender for these offences.
5. I am not satisfied that the applicant's criticisms of his counsel are well-made, nor do they invoke the principles stated by Gleeson CJ in R v Birks justifying the intervention of this Court on Ground 2.

Re-exercising the sentencing discretion

1. I am conscious of the principle identified by Spigelman CJ in Baxter v The Queen, approved by the High Court in Kentwell (see [90] above) that the Court of Criminal Appeal's "duty upon the identification of error is not discharged by merely adjusting the sentence actually passed to allow for the error identified". The Court is required to re-exercise "the sentencing discretion, taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which [s 6(3)] provides" (Baxter v The Queen at [19]). The positive opinion required by s 6(3) Criminal Appeal Act is whether "some other sentence … is warranted in law".
2. However, in the present case, "no challenge is made on behalf of the applicant to any of the sentencing judge's findings" (AWS [44]). The only argument advanced is that a lesser sentence is warranted because the applicant's sentence should be reduced because of the assistance he provided to law enforcement authorities (AWS [45]). Each of the s 23(2) CSPA considerations is separately addressed in writing (AWS [48]) and orally (T 28.25). It was put that the combined discount for past, and the willingness to provide future, assistance should be allowed in a proportion of 15%. This was justified by the considerations that the applicant's assistance resulted in the "shiv" being removed from the gaol, and a "significant enough" discount should be allowed to encourage other remand prisoners to come forward and report violent offending (T 28.30).
3. The Crown argued that no discount should be permitted, even if error is established. Given the absent or negligible connection between the offences for which the applicant was to be sentenced and the other offending in respect of which he is said to have provided assistance, "either no or a very limited … discount" was called for: R v XX; Owens v R at [76(3), (5)] per Wright J (Wilson and Fagan JJ agreeing in principle with separate reasons, Wilson J dissenting in the result and Fagan J agreeing).
4. The Crown also submitted that no lesser sentence is warranted: s 6(3) Criminal Appeal Act; s 23(3) CSPA. The Crown pointed out the aggregate sentence was passed in respect of "three extremely serious offences" (T32.20). There was an absence of remorse; rather the applicant considers himself to be the victim of the justice process; he inflicted catastrophic injuries on the vulnerable victim; unconscionably delayed medical treatment; and succeeded in perverting the course of justice at least for a period of weeks by involving other persons in the provision of a false alibi.
5. I also record that the applicant has read on the usual basis his affidavit of 4 September 2024 and the affidavit of his sister, Karen Hemsworth affirmed on 10 September 2024. While not challenging the learned sentencing judge's findings, the applicant submits for re-sentencing purposes that the Court should find his rehabilitation is proceeding more positively than expected. He has undertaken a number of appropriate courses and has attained a position of trust as a clerk in "buy-ups". Moreover, it is said that his custodial conditions are more onerous than other prisoners because of assaults, the deterioration in his mental health (unsupported by any medical evidence) and his continuation in protection.
6. While evidence concerning his progress towards rehabilitation is generally admissible, I am not of the view that it should be regarded as admitted for the purpose of contradicting or qualifying the finding made by the sentencing judge that the applicant's prospects were "reasonable". In circumstances where the sentencing judge's finding that there is no evidence that the applicant's custody is harsher than experienced by other prisoners is not challenged, evidence read to prove otherwise is inadmissible new evidence for the reasons explained by Simpson J in Khoury. I would not have regard to it. While purportedly read "on the usual basis", in truth it is impermissible and inadmissible evidence of circumstances arising subsequent to the sentencing.

Decision

1. It is fundamental to bear in mind that the sentencing judge passed the aggregate sentence on the applicant for the three offences of which he had been convicted, either by the jury's verdict or upon his plea of guilty and it is from that sentence and only that sentence, that leave to appeal may lie: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] (per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing). It is to the indicative sentence that would have been imposed for each offence had separate sentences been passed instead of the aggregate sentence that, inter alia, available discounts should be taken into account and applied: s 53A(3) CSPA; JM v R (at [39(3)]). While the indicative sentences are themselves not amenable to appeal, it is well-established that they may provide a guide as to whether error is established in relation to the aggregate sentence: JM v R (at [40(11)], and the authorities there referred to).
2. I have taken into account the unchallenged findings made by Judge Buscombe as to the nature of the offending ([17]-[34] above), the objective seriousness of the offending in each count ([35]-[37] above); and the findings made by his Honour about the applicant's subjective case ([38]-[43] above). I have also taken into account his Honour's conclusion expressed at Reasons [59] (see [50] above), including his Honour's assessment that "offenders who commit such offences against young vulnerable children must receive very significant sentences in order to deter the offender concerned and others from such truly wicked conduct". I also take into account the delayed medical treatment for which the applicant was responsible and the public justice offence of a type which his Honour regarded as "always serious". I bear in mind that his Honour allowed a 15% discount for the guilty plea in respect of the public justice offence (Count 4). Again, this assessment is unchallenged. And there is no challenge to his Honour's refusal to make a finding of special circumstances.
3. I turn then to the question of the application of s 23 CSPA. I proceed on the evidence and materials put below and I have put to one side all of the new provisionally admitted evidence, including the affidavit of Adam Wilczek sworn on 18 September 2024, provisionally read by the Crown and annexing a statement of the OIC dated 30 August 2024. I have completely disregarded that statement.
4. Section 23 CSPA is in the following terms: "Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
5. The principles governing the application of s 23 CSPA arising from the jurisprudence of this Court have been, with respect, well summarised by Wright J in Owens v R (at [76]) in the following terms: "A number of further principles in relation to the scope and application of s 23, in the context of taking into account the mitigating factor in s 21A(3)(m) of the Sentencing Procedure Act[CSPA], have been established in the authorities. Those most relevant for present purposes include: (1) the rationale for the discount for assistance includes, but is not limited to, "the public interest that offenders should be encourage[d] to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information": XX at [46] quoting R v Cartwright (1989) 17 NSWLR 243 at 252; (2) the type of assistance which attracts the operation of s 23 is any assistance to "law enforcement authorities" in the "prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence": Sentencing Procedure Act, s 23(1); XX at [32]. For example, the assistance referred to in s 23(1) is not confined to assistance concerning offences of which the offender was the perpetrator: XX at [32] citing RJT v R [2012] NSWCCA 280; 218 A Crim R 490; (3) by referring to "any other offence", s 23(1) clearly contemplates that the assistance may have been provided in relation to an offence other than the particular offence for which the offender is to be sentenced: XX at [34]; (4) section 23(2)(i), however, provides that a mandatory consideration in deciding whether to impose a lesser penalty for an offence and in determining the nature and extent of the penalty is "whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence" and, by doing so, subs (2)(i) focuses attention on the degree of connection between the offences for which assistance has been provided and the offence or offences for which the offender is being sentenced: XX at [34]. (5) The absence of connection between the offending for which an offender is to be sentenced and the offending in relation to which assistance is given might justify a smaller discount or no discount under s 23(1), depending upon the facts of the case: XX at [61]; A v R [2018] NSWCCA 289 at [57]."
6. Before turning specifically to the provisions of s 23(2), I remind myself of the correct approach as explained by Beech-Jones J (in R v XX (Bathurst CJ and RA Hulme J agreeing)) in the following terms (at [61]): "As noted, the factors in s 23(2) are not only relevant to an assessment of the level of discount that must be provided, they also must be considered as part of the assessment of whether any discount should be provided … . His Honour failed to consider whether the unrelated nature of the offending the subject of the assistance affected an assessment of whether a lesser penalty should be imposed. Instead, his Honour acted on a 'wrong principle' in assuming that, once the assistance given by XX fell within s 23(1), a 'discount is available' even though it concerned an unrelated offence."
7. As I have already pointed out the offence in respect of which a claim of assistance was made was for an essentially unrelated offence; at least the relationship between the offences committed against the applicant in custody and the offences for which he was sentenced was slight as I will explain.
8. Bearing the aforementioned principles in mind and relying only on the material actually before the sentencing judge, I turn to the s 23(2) CSPA considerations. As I do so, I bear in mind the passage I have referred to (at [58] and [67]) that as assistance is a matter proffered in mitigation, the applicant bears the onus of proof on the balance of probabilities, requiring him "to establish precisely what information or assistance [he] has provided and its value, truthfulness, completeness, reliability, timeliness" and the other factors referred to in s 23(2) CSPA (Ahmad v R at [36]).
9. I accept that the applicant provided a degree of assistance to police in relation to the offending against him in custody by reporting it to prison authorities and making a statement to police. I also accept from what was said by counsel below to the effect that when sentenced, the applicant remained willing to give evidence against the perpetrators. But there is no admissible evidence whether that proved necessary in the event given the rulings I have made in relation to the proffered new evidence. I do not accept, however, the submission of the applicant that his assistance was significant, useful and resulted in the identification and prosecution of offenders, who would not otherwise have been identified. It is quite evident from the material commencing at AB 67 that the facts founding the charges brought against the perpetrators depended not only upon the applicant's statement, but also a complaint by Mr Reitdorf, who had an interest in reporting the matter to Corrective Services and also to police given that, at least in the first instance, it was his money that was transferred. There is no evidence of any evaluation by police or Corrective Services of the assistance rendered or undertaken to be rendered by the applicant. That lacuna was one required to be filled by the applicant but was not. There is no evidence that knowledge of the applicant's call to police was disseminated, or seeped out, into the general prison population deterring other inmates from offending while in custody (s 23(2)(b)).
10. It may be taken that the statement provided by the applicant was true, complete and reliable. There is no evidence he was required to give evidence (s 23(2)(c)). So far as the evidence before the Court goes, the applicant's assistance was limited to providing the statement to police and included a promise to give evidence. However, from the Statement of Facts, it is also evident that, as I have already said, independent investigations were undertaken by police including taking a statement from Mr Reitdorf and obtaining call records from Corrective Services and others and bank records to corroborate the account given by the applicant. Those corroborating details themselves constituted significant evidence given gaol phone calls are recorded (s 23(2)(d)). There seems to be no doubt that the applicant made his complaint in a prompt and timely way (s 23(2)(e)).
11. It must be said that the applicant's putative assistance was very much in his own interest given from the circumstances it was clear that a significant transfer of $3,000 by Mr Reitdorf which the applicant undertook to repay would not have been the end of the stand-over tactics exerted against him. It was made quite clear to him that monthly payments of some significance for a person in custody deriving only a meagre income would be required. I infer that he was keen not to be bled dry, and quite reasonably so. The applicant wanted the money extorted returned. I would infer that his complaint put a stop to the ongoing risk of further extortion. The evidence suggests that he was moved to a different gaol from the perpetrators (s 23(2)(f)).
12. There is no evidence that the applicant has suffered or will suffer harsher custodial conditions as a consequence of his assistance or undertaking to assist (s 23(2)(g)). There is no challenge to the sentencing judge's finding in this regard and that was the only s 23(2) matter expressly referred to by counsel below ([47]-[48] above). His Honour's finding (at reasons [56], [48] above) has not been challenged nor has admissible evidence been read permissibly on appeal. No actual physical injury has been suffered by the applicant, nor his family, because of the assistance or his undertaking to give evidence. There is no evidence of any danger or risk to either him or his family. The circumstances of the offence against him rather than the giving of assistance about it are likely to have been anxious-making (s 23(2)(h)).
13. The only connection between the assistance given by the applicant and the offending for which he was to be sentenced by Judge Buscombe is the temporal and spatial connection provided by the circumstance that he was in custody on remand when the offending against him occurred. To my mind, this is a weak connection which of itself, for the reasons explained by Beech-Jones J in R v XX (at [61]) really raises a large question for consideration about whether the exercise of the discretion to reduce the sentence otherwise to be imposed should be exercised in the applicant's favour on the basis of the material led.
14. As I have attempted to explain on the material before the Court, the applicant overwhelmingly acted not out of a sense of public duty or by way of remorse or contrition for his own serious offending against SH, but rather solely in his own interest. And the interest that he mainly sought to protect was his financial interests, although I would be prepared to accept that being threatened with the "shiv" would have been anxious-making. I accept that the applicant's motivation is not determinative. Assistance may be frequently motivated solely by a desire to receive a discount on sentence. But nor is the motivation for assistance irrelevant; especially where the assistance does not relate to the "offence concerned", in my view.
15. I am of the view that the applicant seeking a discount for assistance to police relevant to a very largely unrelated other offence of which he was the victim when he has never at any time accepted responsibility or expressed remorse, contrition or even regret for his "truly wicked" offending against SH to whom he stood in loco parentis offends justice. I am not suggesting an absence of remorse is an aggravating factor. My view is heightened by the consideration that he sought, and for a time successfully, to evade justice for his egregious offending by recruiting others to provide "corroboration" for the false alibi that he manufactured. While he abandoned that meritless stance by pleading guilty to the public justice offence, he manufactured yet another, "completely implausible and false account." An offender is not to be criticised for putting the prosecution to proof but attempting to actively mislead the jury by advancing an utterly false account falls into a different category and is relevant to the question of whether an available discretion should be exercised favourably to the offender.
16. Viewed objectively in the light of all of the circumstances and considerations to which I have referred, I would exercise my discretion to decline to provide a discount for such assistance as the applicant rendered to police in respect of the other offending in pursuit of his own financial interest. When one considers the profoundly catastrophic injuries he inflicted upon SH and Judge Buscombe's unchallenged findings of objective seriousness for each of the offences, I am of the view that to allow any further reduction in the indicative sentences which may serve to reduce the aggregate sentence passed would produce a penalty that would be unreasonably disproportionate to the nature and circumstances of the applicant's offending for these serious offences (s 23(3)). The "truly wicked" conduct constituting this offending calls for denunciation in the clearest terms by the imposition of condign punishment. In my judgment no lesser sentence than that passed is warranted in law when one has regard to all the facts, matters and circumstances relevant to sentencing this offender for these offences.
17. The orders I propose are: 1. Under r. 3.5 Supreme Court (Criminal Appeal) Rules 2021, grant leave to the applicant to make his application for leave to appeal from the sentence passed upon him in the District Court on 10 September 2021. 2. Under s 5(1)(c) Criminal Appeal Act 1912 (NSW) grant leave to appeal against the sentence. 3. Appeal dismissed.

Amendments 12 February 2025 - Paragraph 46 penultimate line and paragraph 71(1) corrected the name of the officer in charge to Waddell. 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: 12 February 2025