McKinley v R [2022] NSWCCA 14 | Case summary

Consideration

In some respects, the Court can accept all that has been said by the Crown in relation to each of the grounds of appeal. There can be no doubt that section 23 of the Crimes (Sentencing Procedure) Act is discretionary and interference with the exercise of discretion by this Court on appeal will occur only on one of the well-known bases classically described in House v the King. [3]
An error occurs and is identifiable where the judge acts upon a wrong principle; allows extraneous or irrelevant matters to affect the exercise of discretion; mistakes the facts; or does not take into account some material consideration. Otherwise, if the result is unreasonable or plainly unjust, the Court on appeal may infer that there has been a failure properly to exercise the discretion, in which case there is manifest error, being error in the exercise of the discretion that is not identifiable.
Ordinarily, in dealing with a reduction in sentence on account of assistance to authorities, a court is dealing with assistance granted in relation to an offence for which the offender has been charged or of which the offender is suspected of having committed. As a consequence the Court, in sentencing such a person and providing for a reduction, is required by the terms of s 23(4) of the Crimes (Sentencing Procedure) Act to specify that part of the assistance that is given for past assistance and that which is provided for future assistance.
Usually, future assistance involves an undertaking to give evidence in court and like issues. Past assistance may include admissions of fact, including the identity of the offenders or the location of property or persons.
The foregoing is not intended to be exhaustive. In rare circumstances, an offender, not otherwise suspected of, or charged with, an offence, will confess in circumstances where the police may not otherwise be aware of the offence or of the perpetrators of the offence or offences. The circumstance before the Court, in this instance, is one of those rare occasions.
In the current circumstances, as is made clear from the foregoing factual summary, the law enforcement authorities were aware of the commission of the offence but were unaware of the perpetrator or perpetrators of the offence. The police had commenced an investigation, but that investigation had not, at the time that the applicant confessed to the serious offences for which he was sentenced, borne fruit.
As a consequence, the applicant was entitled to a significant added element of leniency for his voluntary disclosure of involvement in serious crimes of which the police had no knowledge. [4] The first and most important aspect of the discount to be applied in cases that give rise to such a discount, commonly referred to as an Ellis [5] discount, is the policy relating to the administration of justice.
Offenders must be encouraged to come forward and confess crimes that may otherwise not be resolved. In Ellis, Street CJ said: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." [6]
The High Court in Ryan v The Queen [7] referred to the principles established by Street CJ and cited the forgoing passage with approval. In delivering one of the majority judgments, McHugh J said: "[12] Thus, according to Ellis, the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure." [8]
In the judgment of McHugh J in Ryan, his Honour was at pains to point out that the Ellis factor is not to be rigidly or mechanically applied, but is a factor, when determining the appropriate sentence, which is both significant and not insubstantial, and must be considered on the credit side of the sentencing process. Nevertheless, it is not a rule to be quantitatively, rigidly or mechanically applied.
Sentencing is not a mathematical exercise. Nor is it an exercise in which the sentencing judge is required to proceed formulaically through a number of statements.
However, the public policy relating to the administration of justice, to which these reasons earlier referred, being the encouragement of persons to come forward and confess crimes that are otherwise unknown to the authorities or for which the perpetrators are unknown, is a matter of great significance in the administration of justice.
Further, a confession of an offence of which the police are unaware, or for which they are unaware of the offender's involvement, is a matter that goes significantly to the issues of general deterrence as it reduces materially the appropriateness of general deterrence as a significant factor in the sentencing process. General deterrence is intended to dissuade others from committing crimes of that nature. In the case of a person who has confessed to a crime not otherwise known, the general deterrence would be directed to an extremely small class of individuals minded to commit crimes and then admit to them.
Over and above the foregoing, the issue of specific deterrence, which is intended to deter the particular offender from committing other crimes of a like nature, is also significantly diminished, as the confession to an unknown crime or a crime in which the offender is not known to have been involved, discloses significant remorse and leads to a conclusion that the prospects of rehabilitation are significantly improved.
Nevertheless, the other purposes of sentencing, namely retribution, denunciation and punishment are still aspects that require consideration and are of considerable importance.
One other aspect needs discussion. It is always important that a sentencing court not impose a sentence for an offence, which is inappropriate or disproportionate to the nature and circumstances of the offence. In the case of assistance afforded to which the Ellis factors apply, the legislative intention in s 23(3) of the Crimes (Sentencing Procedure) Act requires attention.
That provision requires that a sentence that is reduced because of the factors of assistance, even those to which Ellis factors apply, must not be "unreasonably disproportionate" to the nature and circumstance of the offence. That provision indicates that the sentence may be "disproportionate", but not unreasonably so.
In the past, when a more arithmetic and prescriptive approach was taken to the sentencing discretion, it had been said that certain percentages should be allowed for the plea of guilty and assistance, which, in ordinary circumstances, ought not to exceed 40%. [9] Further it has been held that it would be a rare case where a discount of more than 60% would not result in a manifestly inadequate sentence. [10]
The foregoing arithmetic view probably does not withstand later authority criticising an arithmetic approach to sentencing. Consistency in this area, like others, must be determined by the consistent application of sentencing principles. [11] The principles applicable to determining assistance, which it is unnecessary to repeat or summarise, were discussed more fully by this Court in R v XX. [12]
The foregoing is not intended to suggest that too great a discount for assistance, regardless of the kind of assistance, should be given such that the sentence is unreasonably disproportionate to the nature and circumstances of the offence and the offender. The determination of the reduction for assistance pursuant to the terms of s 23 of the Crimes (Sentencing Procedure) Act depends on assessment of the mandatory considerations prescribed by s 23(2).
Those mandatory considerations include: the significance and usefulness of the assistance to the authorities, taking into consideration the evaluation of the authorities themselves; the truthfulness, completeness and reliability of the information provided; the nature and extent of the offender's assistance; the timeliness of the assistance; any other benefit that the offender gains or may gain by reason of the assistance; whether the offender will suffer harsher custodial conditions as a consequence of the assistance; any injury suffered by the offender or offenders family or the danger of such injury resulting from the assistance provided; and whether the assistance concerns the offence for which the offender is being sentenced.
Leaving aside injury suffered by the offender or the offender's family, for which there is no substantive evidence, each and every one of those factors are relevant to the assessment of the reduction that ought to be granted and ought to have been granted to the applicant and should be used to the credit of the applicant.
The Court has a confidential exhibit, as did the sentencing judge, which provides the assessment by law enforcement authorities of the assistance obtained in relation to these offences. That assistance is significant and was significant. It was given at the earliest time and, as earlier stated, at a time when the applicant was not being interviewed for these offences.
Even on the arithmetic approach to which the Court referred, [13] the Court was largely dealing with assistance to authorities other than those to which Ellis factors apply. [14] In FS, with the concurrence of Campbell JA and Buddin J, I said: "[14] Assistance to authorities in the prosecution of offences is a public benefit and a public duty. Nevertheless, in the sentencing process, leniency is extended to offenders for assistance to authorities. It is not an uncommon practice. That leniency takes into account a number of factors, which were summarised in the High Court in the following manner: '[3] It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case (but not lesser to an extent that she considered would of itself fully recognise such factors), and she suspended the sentence. Her reasoning made it clear that, if she had not suspended the sentence, she would have fixed a shorter term of imprisonment.' (York v R [2005] HCA 60; (2005) 225 CLR 466; (2005) 79 ALJR 1919 per Gleeson CJ.) [15] His Honour Chief Justice Gleeson referred, after the passage cited immediately above, to two judgments of the Court of Criminal Appeal that discuss the relevant principles. In one of them, R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed: 'Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co- operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.' [16] The calculation of the amount of any such discount has developed over the last decade. Thus, in R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474, Wood CJ at CL with whom Meagher JA and Barr J agreed, observed that: 'There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise have been imposed.' It should be pointed out, that the reference to percentage discounts for assistance is a reference to a combined percentage discount for both assistance and the utilitarian value for the plea of guilty associated with it: see R v M [2005] NSWCCA 224, per Buddin J, with whom James J and I agreed. [17] The matters associated with a level of discount were discussed by the Court of Criminal Appeal in SZ v Regina [2007] NSWCCA 19, in which the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50% and that discounts exceeding 50% should be reserved for very exceptional circumstances. [18] In SZ v Regina, Buddin J, with whom Simpson J and Howie J agreed, said: '[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151. [53] However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.' [19] In the same judgment, in separate comments agreeing with Buddin J, Howie J said: '[7] Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 per cent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be "unreasonably disproportionate to the nature and circumstances of the offence". [8] I accept that what is "unreasonably disproportionate" is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C (1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R [2005] HCA 60; (2005) 221 ALR 541 does not suggest otherwise.'" [15]
The foregoing was said in the context of a Commonwealth offence, but the comments are applicable to both State and Commonwealth offences, save as to the reference to the different legislative schemes.
As earlier stated, ultimately the test that must be utilised depends upon the fulfilment of the purpose of the administration of justice. The reduction needs to be sufficiently significant that it will encourage those persons who have committed crimes to come forward and confess the crime, notwithstanding that the police are unaware of either the crime or the perpetrators of the crime.
The limit is determined by ensuring that the sentence imposed is not "unreasonably disproportionate" to the nature of the offence and the offender. As was stated by Howie J in SZ [16] that which is "unreasonably disproportionate" is not simply determined by the objective facts of the offence but must also take into account matters such as the threat posed to the offender by reason of his or her assistance and the nature and extent of the assistance.
In York v The Queen [17] , Gleeson CJ said: "[3] It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright and R v Gallagher. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case (but not lesser to an extent that she considered would of itself fully recognise such factors), and she suspended the sentence. Her reasoning made it clear that, if she had not suspended the sentence, she would have fixed a shorter term of imprisonment" [18] (Footnotes omitted.)
Further to the above, Gleeson CJ (then of this Court) in R v Gallagher [19] said: "Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby he exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."
Returning to the issues in this case more specifically, apart from the quantum of the discount generally, the other aspect of the reduction provided for the plea of guilty and assistance is that a lesser reduction was provided for sequence 7, the break, enter and steal than for the other offences.
In my view, there is no good reason to differentiate the break, enter and steal in terms of the assistance provided. It seems that the sentencing judge has applied a reduction or discount for the plea of guilty and assistance to authorities that is more in line with the usual assistance that may be provided from time to time and not in line with the rare circumstances associated with the application of the principles in Ellis and the discount for the Ellis factor.
Insufficient discount has been provided in the particular circumstances of the assistance provided, particularly in light of the assessment of the law enforcement agencies in relation to the assistance. That assistance was of high value; it was provided in relation to offences of which the law enforcement agencies were aware and for which they had begun an investigation; but it was done at a time when the law enforcement agencies were unaware of the involvement of the applicant in those offences.
It is necessary for the Court to resentence. No complaint is made either by the Crown or by the applicant as to the other factors and assessment of the sentencing judge and I would not interfere with the other aspects. I would apply a 55% reduction for the plea of guilty and the assistance provided, including assistance taking into account Ellis factors.
Taking into account all of the foregoing factors, I would set indicative sentences as follows: 1. Aggravated break and enter and steal, taking account of the offence of intentionally destroying property, the car, on the Form 1, contrary to s 112(2) of the Crimes Act, an indicative head sentence of 2 years and 9 months and an indicative non-parole period of 2 years and 1 month; 2. Take and drive conveyance, contrary to s 154A(1)(a) of the Crimes Act, an indicative head sentence of 15 months; 3. Break, enter and steal, contrary to s 112(1) an indicative head sentence of 18 months and an indicative non-parole period of 18 months; 4. Armed robbery, contrary to s 97(1) of the Crimes Act, taking into account the larceny of the handbag on the Form 1, an indicative head sentence of 3 years and 9 months; 5. For larceny, contrary to s 117 of the Crimes Act an indicative head sentence of 2 years and 7 months.
I would impose an aggregate sentence of 5 years and 3 months as the head sentence, with a non-parole period of 3 years and 11 months.
As a consequence of the foregoing, I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be allowed; 3. The sentence imposed upon the applicant, Rhys Cale McKinley, in the District Court at Newcastle on 2 October 2020 be quashed and in lieu thereof the applicant be sentenced to the following term of imprisonment: 1. A non-parole period of 3 years and 11 months commencing 11 December 2019 and concluding 10 November 2023, with the remainder of the term of 1 year and 4 months concluding 10 March 2025. The applicant will be first eligible for parole on 10 November 2023.
DHANJI J: I also agree with Rothman J.

McKinley v R

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