NSWNSWCCA

Panetta v R

[2016] NSWCCA 85

Court of Criminal Appeal (NSW)|2015-11-17|Before: Ward JA, Adams J, Bellew J, Gleeson CJ, Mathews JJ, Davies J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2015-11-17

Before

Ward JA, Adams J, Bellew J, Gleeson CJ, Mathews JJ

Catchwords

Zirilli v The Queen [2014] HCA 2
253 CLR 58
305 ALR 323 CMB v Attorney General for New South Wales [2015] HCA 9
317 ALR 308 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Source

Original judgment source is linked above.

Catchwords

Zirilli v The Queen [2014] HCA 2253 CLR 58305 ALR 323 CMB v Attorney General for New South Wales [2015] HCA 9317 ALR 308 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 19479 NSWLR 1205 A Crim R 1 Director of Public Prosecutions v England (1999) 106 A Crim R 99 Eastman v R [2000] HCA 29203 CLR 1252 CLR 601238 A Crim R 134 Knight v R [2006] NSWCCA 292(2006) 164 A Crim R 126 Muldrock v R [2011] HCA 39244 CLR 120212 A Crim R 254 PK v R [2012] NSWCCA 263 R v Anderson [1981] VicRp 17[1981] VR 155(1980) 2 A Crim R 379 R v Borkowski [2009] NSWCCA 102195 A Crim R 1 R v Ehrlich [2012] NSWCCA 38R v Houlton [2000] NSWCCA 30949 NSWLR 383167 A Crim R 436 Raad v R [2011] NSWCCA 138220 A Crim R 471 Ryan v The Queen [2001] HCA 21

Judgment (19 paragraphs)

[1]

Solicitors: Bilias & Associates (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/377994 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2014] NSWSC 27 Date of Decision: 07 March 2014 Before: Davies J File Number(s): 2010/377994

[2]

Judgment

WARD JA: I agree, for the reasons given by Adams J, that leave to appeal should be granted and the appeal upheld on the basis that the sentencing judge erred in failing to quantify the discount allowed for Mr Panetta's assistance to the authorities.
As to the re-sentencing exercise that this Court is therefore now required to undertake in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601; 238 A Crim R 134, I have had the advantage of reading in draft the judgments of each of Adams and Bellew JJ. Where their Honours depart, in essence, is as to the appropriate starting point before application of the respective discounts that must be applied in the present case and as to the appropriate discounts themselves. Each of their Honours considers that the cumulative operation of the respective discounts he would allow for Mr Panetta's plea of guilty and his considerable assistance to the authorities would produce an overall sentence that was unreasonably disproportionate to the nature and circumstances of the offence; and hence would apply a reduced combined discount.
The nature and circumstances of the offence and the subjective circumstances to be taken into account are set out in Adams J's judgment and do not need here to be repeated.
For the reasons expressed by Bellew J, I am of the opinion that the appropriate sentence before the application of any discount is 24 years. Though the murder was not premeditated, this was a brutal attack visited upon the deceased and the seriousness of the offence was aggravated by the steps that Mr Panetta then took to conceal his crime, including burying the body.
I also agree with the conclusions Bellew J has reached as to the appropriate discounts to reflect the guilty plea (10%) and the high level of assistance to authorities (50%). As to the former, the guilty plea was entered only shortly before the commencement of the trial. Some of the delay in the entry of that plea was attributable to issues in relation to Mr Panetta's legal representation and the need to obtain a psychiatric assessment of Mr Panetta. No criticism is made of the course taken by the defence in that regard. Nevertheless, when considering the utilitarian value of a plea the primary consideration is the timing of the plea (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104).
As to the latter, I note the rationale for reducing a sentence by reason of assistance to the authorities as summarised in Isaac v R [2012] NSWCCA 195 and I agree that considerable leniency must be extended to Mr Panetta, who voluntarily disclosed the offence in circumstances where it was not known that a crime had been committed, let alone that he had or might have had any involvement in that crime, and whose assistance led to the discovery of the deceased's remains. I further accept that, as is implicit in Adams J's observations (at [49]), this is an unusual case. Nevertheless I agree with Bellew J that a 50% discount is appropriate for the assistance rendered by Mr Panetta to the authorities.
As Bellew J has adverted to at [76], the view has been expressed that the constraint imposed by s 23(3) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) will not generally be met by allowing a combined discount of more than 50% (Z v R [2014] NSWCCA 323 at [33] per McCallum J). However, that does not mean that in an appropriate case the combined discount could not be more than 50%. In the present case a combined discount of 60% in my view appropriately reflects both the utilitarian value of the guilty plea and the high level of assistance provided by Mr Panetta in the very unusual circumstances of this case.
However, I also consider that the operation of a 60% combined discount would result in a sentence unreasonably disproportionate to the nature and circumstances of the offence and that a reduction in the combined discount is required. I accept that views may reasonably differ as to the appropriate reduction for this purpose. Having considered the matters raised by Adams J, I nevertheless consider that the combined discount should be reduced to 50%, with the result that the total term of imprisonment should be 12 years, comprising a non-parole period of 9 years and an additional term of 3 years. I therefore agree with the orders proposed by Bellew J.
ADAMS J:

[3]

Introduction

On 14 November 2013 the appellant (since the appeal is allowed, it is convenient to so term him) was convicted on his plea of murdering Muhammed Shafique on 18 September 2008. He was sentenced on 7 March 2014 to a term of 17 years imprisonment with a non-parole period of 12 years and 9 months commencing on 12 November 2010. He seeks leave to appeal to this Court against his sentence. The maximum penalty for murder is imprisonment for life. A standard non-parole period of 20 years applies. These penalties are guideposts for the purposes of sentence, although it is, in substance, agreed that the objective seriousness of the offence is somewhat less than in the middle of the range.
The grounds of appeal are as follows - "Ground 1: The learned sentencing judge erred in the exercise of his discretion with respect to the assessment of the discount to be allowed in relation to the appellant's plea of guilty. Ground 2: The learned sentencing judge erred in failing to quantify the discount allowed on the basis of the appellant's assistance to the authorities. Ground 3: The learned sentencing judge erred in the failing to adequately discount the sentence on the basis of the appellant's voluntary disclosure of guilt and his plea of guilty. Ground 4: The learned trial judge erred in failing to properly apply the principles concerning the appellant's intellectual functioning. Ground 5: The sentence is, in all the circumstances, manifestly excessive."

[4]

Factual background

An agreed statement of facts was tendered without objection, from which the narrative in the reasons of the learned primary judge was largely drawn. Given that his Honour's judgment has been published, I do not propose to set out the facts in the same detail and have confined myself to what I regard to be the most salient features. (I have mostly not indicated quotations, for ease of reading.)
In 1987 the victim married Sharon Shafique but, in 2004 they separated, Sharon remaining at the family residence, with the children at first but they later went to live with the deceased. In 2007 the couple were divorced and, late that year, Ms Shafique commenced an intimate relationship with the appellant (whose intellectual functioning was between low average to average range - this matter is further discussed when dealing with subjective features), who believed Ms Shafique was 19 years old although she was in fact 39 or 40 years of age. She had introduced her two children to him as her younger brother and sister, telling them not to say that she was their mother and that they should refer to her by the name "Nadia" when they were in his presence.
The victim was killed by the appellant on 18 September 2008 but both his death and the appellant's involvement only came to light when he attended Dee Why police station on 12 November 2010 and confessed. His admissions to the police about the circumstances were not the subject of any dispute and may be accepted, although some details, for example concerning movements of the victim's car on 18 September 2008, are not completely reliable (accepted by his Honour as possibly resulting from the lapse of time and the appellant's distressed state when being interviewed). The appellant told police about commencing his relationship with "Nadia" who told him that the deceased was a bad person associated with the Taliban and was involved in fraud and criminal activity. He said she told him that the police had not been able to find any evidence against him and that he decided he would attempt to gather evidence against him to give to the police and started to follow him. For this purpose he purchased an electronic tracking device in early June 2008, which he attached to the deceased's vehicle and he was able to use his computer to track its movements. On 18 September 2008 the appellant drove his van to the underground car park of the residential unit block where the victim had a "business office" and waited for him to arrive. Sometime after 2pm the victim drove his vehicle into the car park and parked alongside the appellant's vehicle. When he alighted, the appellant grabbed him and attempted to put him in the rear of his van, intending to abduct and rob him, using cable ties that he had brought with him. The primary judge set out the following extracts from the transcript of the appellant's interview - "Q32 I don't know if I was tricked or I'm not sure. Um, I got told this person who was dealing with illegal, bringing people into the country and was a bad person and all this and I sort of took advantage of the situation and I, I, my anger got the better of me and um, I took care of this person...' Q33 ....the police wanted evidence to arrest this man. Q34 ....so I was trying to get evidence but I took it too far and didn't go the way of the plan and I killed him. Q113 She said there's this bad person bringing illegal people from overseas and myself being a gambler I thought he had money so I went to follow him for the reason that she wanted to get him into trouble with the police but the police didn't have enough evidence on him because he was too tricky, too many different identities so I tried to get evidence, it didn't quite work out that way and got myself in a big problem now. Q 35 '... Well I was trying to tie him up in my van but he reached and got my hammer out of my van, struck me in the head once so I took the hammer off him and repeatedly hit him in the head...' Q 161 (I followed him that day) (t)o try and catch him getting fraudulent mail from the post office which he had multiple keys to post office boxes. Q249 '... I tried to tie him up. There was a hammer there which I use for work, he grabbed it, struck me in the head with it. Q252 '...As a soon as that happened I grabbed the hammer off him and I repeatedly hit him in the head...' Q 253 '...Probably about fifteen times...' Q 256 'I just went into a rage. Q 585 Well it was drummed into my head that this guy's got to go down, he's in they've got to get him in trouble with the cops because of what he's doing so I thought it would be a good idea. Q 601 I was meant to do one thing but it led to another."

[5]

Subjective features

Tendered on the sentence proceedings was the appellant's criminal record, together with reports of Anita Duffy (psychologist) and a number of testimonials. His Honour also had available to him (by consent) reports of Drs Westmore, Allnut and Reid (psychiatrists) and Dr Susan Pulman (psychologist). The effect of these reports (as to which there is no issue) was summarised in the reasons of the primary judge as follows. The appellant was aged 35 years at the date of sentence, one of four sons, having two older brothers and a non-identical twin brother. He was living at home with his parents until his imprisonment. He told Ms Duffy that his parents were "very excitable and negative people" and remembered fights and arguments between them since he was young. Although he was not physically abused, he was continually on edge by their fighting and his father would often scream at him. He completed school at year 10, leaving when he was 16 years of age, then worked in a factory and later at a fruit market. He has also worked as a builder's labourer and was self-employed as a handyman. He has always been employed since leaving school. Although he told Drs Allnutt, Reid and Pulman that he had been smoking marijuana and using amphetamines since he was 14 or 16, he told Ms Duffy he had never used illicit drugs. He told all of those who examined him that he started drinking at about 14 or 16, often to intoxication. The relationship he had with Sharon Shafique was his first serious relationship. He was with her for two to three years and they lived together for about 12 months. Ms Duffy administered various psychometric tests. The Wechsler Abbreviated Scale of Intelligence placed him in the Low Average range at 85 and his scores in the Vocabulary and the Similarities subtests indicated relatively limited word knowledge, verbal expression and a tendency to think in rather concrete terms. Testing of basic personality characteristics revealed a strong Depressive feature as well as Dependent, Passive/Aggressive and Self-Defeating traits. Ms Duffy said - "Mr Panetta's profile indicates an enduring pattern of thoughts, attitudes, behaviours and self-concepts related to depression. He may perceive himself as worthless, vulnerable, inadequate, unsuccessful and guilty and may frequently engage in self-criticism. He tends to view events in his life in a defeatist or fatalistic manner, expecting the worst. The Negativistic or Passive/Aggressive elevation flavours his depression with some resentment. He may vacillate between being bitter and resentful towards others versus being intropunitive and self-deprecatory. The Dependent elevation indicates a strong need for affection and support by others, and therefore, to gain approval, [he] tends to be submissive and conciliatory rather than assertive or argumentative. He looks to others to lead and care for him and in this way gives up responsibility for making decisions. Underlying his insecurity are feelings of low self-esteem. In his eagerness for acceptance and approval, he can be extremely agreeable and submissive, subjugating his own needs to those of others. He may be perceived as gullible, humble, docile and passive, and therefore more vulnerable to manipulation or domination by others. Internally, he may have a limited range of competencies in reducing tension and stressors."

[6]

Findings as to the circumstances

The primary judge found that the appellant did not set out with the intention of killing the deceased but, rather, to abduct and rob him. It was whilst he was trying to restrain the deceased that the latter obtained a hammer and struck the appellant, at which point he grabbed the hammer and hit the deceased repeatedly in the head. His Honour thought that this was "perhaps about 15 times", an approximation taken from the appellant's admissions. It will be recalled that two fractures, indicating blows of considerable force, were found on autopsy, the force of the other blows is unknown. His Honour concluded that the appellant must have intended to cause grievous bodily harm but could not be satisfied beyond reasonable doubt that he intended to kill the deceased, rather, he was trying to subdue him to further his purpose of abducting and robbing him. The assault arose spontaneously without planning or premeditation.
The primary judge accepted that the actions that led up to the murder (and, as I understand it, the murder itself) were unlikely to have occurred had it not been for the low intelligence and personal problems suffered by the applicant, who was obviously vulnerable and suggestible. His Honour pointed out that Ms Shafique, who provided the false information about the victim, was his first and only serious relationship and, in addition to his gullibility, he was (it appeared) endeavouring to please her, bearing in mind that he had no prior knowledge of him. His Honour summed up the position by observing "the deceased was an entirely innocent man who had become the victim of his ex-wife's obsession or vindictiveness or both, and the stupidity and criminality of the offender." So far as subjective features are concerned, I have mentioned the psychiatric and psychological material that was before the primary judge which, in substance, his Honour accepted. His Honour concluded that he had good prospects of rehabilitation.
None of these matters are disputed.

[7]

Ground of Appeal 2

Since I am of the view that this must be allowed, with the consequence that the sentence is effected by an error of law, the Court must itself resentence the appellant (see Kentwell v The Queen [2014] HCA 37; 252 CLR 601; 238 A Crim R 134). The Court must therefore also consider for itself the appropriate discount to be allowed for the appellant's plea of guilty and the assistance to the authorities arising from his disclosure of the offence (the issues raised by grounds 1 and 3) as well as the significance of the evidence concerning the appellant's intellectual functioning (raised by ground 4). It is therefore not necessary to deal with these grounds.
This ground of appeal is based on the submission that the primary judge did not comply with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which, so far as may be relevant, is as follows - "(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: (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, (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. 101A Effect of failure to comply with Act A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence. (All references to legislation are to this Act unless otherwise specified.)

[8]

Objective seriousness

It is not controversial in the present appeal that the primary judge's conclusion that the appellant intended to cause grievous bodily harm rather than to kill the victim was open to his Honour. I am of the same view and it follows that the appellant falls to be sentenced on the basis that he intended to cause grievous bodily harm. Although it will not invariably be the case, this intention is taken to be less heinous than the intention to kill and should be so treated (as, indeed, was done by the primary judge) in this case. The primary judge also concluded that the appellant had not planned to grievously injure the deceased but, rather, had intended to restrain and rob him. Again this is not presently controversial and I would come to the same conclusion. The victim, whilst the appellant was attempting to restrain him, managed to grab hold of a hammer and struck the appellant with it. The appellant took the hammer from him and hit the victim repeatedly in the head. Whether this was the 15 times which the appellant told the police was probable is, I think, uncertain but perhaps does not matter much. I would infer that the appellant hit the victim many more times than was necessary to subdue him, very likely because he had to some degree lost his self-control. This assault was impulsive and not premeditated.
There is, of course, no such thing as a murder of slight seriousness; all murders are gravely serious. Nevertheless, it is plain that there is a range of moral and criminal culpability. Without implying that this question admits of any precision, I would place the objective seriousness of this offence as significantly below the middle of the range.

[9]

The plea

This was a matter of controversy in the appeal, the first ground submitting that the primary judge erred in the exercise of the discretion as to the appropriate discount to be allowed.
The appellant had pleaded guilty on the second business day before the trial was due to begin, having been committed to this Court for sentence on 12 March 2012. The matter was adjourned several times, until 7 September 2012 when it was indicated that the charge was to be defended. As the primary judge found, some of the delay in that period resulted from issues with legal aid and the appellant's legal representation. On 7 September 2012 the matter was set down for trial on 2 April 2013. On 15 March 2013 the legal representative of the appellant indicated that fitness to plea and diminished responsibility might be in issue and, on 20 March 2013 the trial date was vacated on the appellant's application to enable a psychiatric assessment as to the possibility of diminished responsibility to be obtained. Reports were obtained in due course and on 14 May 2013 a new trial date was fixed of 18 November 2013. Further reports received on 28 October 2013 for the appellant and on 7 November 2013 from the Crown affectively disposed of any realistic possibility that the defence of diminished responsibility might be available and, as mentioned, the appellant pleaded guilty on 14 November 2013. In R v Thomson; R v Houlton Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) stated, in his conclusion (at [160]) - "(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." His Honour had earlier stated - "[155] The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, eg, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."
The chronology of events needs to be examined in somewhat greater detail. The following is taken largely from the submissions of Mr Dhanji SC and Ms Hutchinson, counsel for the appellant, but I apprehend that it is not controversial and is a convenient summary. • On 12 November 2010 the appellant voluntary disclosed his responsibility for the killing. • On 18 December 2011 Professor Coyle provided a report which, inter alia, assessed the appellant's IQ as 74, in the low normal range of intellectual functioning, based on the Wechsler Adult Intelligence Scale (WAIS-III). (Subsequently, Drs Reid and Pulman disagreed with Professor Coyle's designation of the appellant's IQ, pointing out that an IQ of 74 is considered to be at the bottom of the borderline range (70 - 84). • On 12 March 2012 the appellant, having pleaded guilty in the Local Court, was committed for sentence. • On 5 April, 4 May, 1 June and 6 July the matter was listed for arraignment. • On 3 September 2012 Ms Duffy provided a report which assessed the appellant's IQ at the Low Average range based on the Wechsler Abbreviated Scale of Intelligence (1999) WASI and as having a strongly depressive feature as well as Dependent, Passive/Aggressive and Self-Defeating Traits. There were indications that he "had experienced past episodes of profound depression to the extent of having suicidal thoughts". • On 7 September 2012 the matter was set down for trial on 2 April 2013. • On 15 March 2013 the matter was mentioned and it was indicated that fitness and substantial impairment may be in issue. • 19 March 2013 the ODPP requested an assessment from Dr Allnutt of the appellant's fitness to stand trial. • On 20 March 2013 there was an application to vacate the trial date of 2 April so that the offender could be psychiatrically assessed as to the possibility of diminished responsibility. The trial date was vacated. The report of Dr Allnutt concerning fitness was still outstanding. • On 19 April 2013 Dr Allnutt saw the appellant at the Long Bay Hospital. • On 24 April 2013 Dr Allnutt reported the appellant fit to stand trial and reserved his opinion as to his mental state at the material time, recommending neuropsychological testing with an emphasis on executive functioning be carried out. • By 10 May 2013 Dr Westmore was satisfied of the appellant's fitness to stand trial. • On 14 May 2013 the matter was listed for trial on 18 November 2013. • On 30 August 2013 the ODPP requested Dr Pulman undertake a neuropsychological assessment of the appellant. • On 16 October 2013 Dr Reid assessed the appellant at Long Bay Correctional Centre at the request of the appellant's solicitor. Due to considerable noise and time constraints, a detailed neuropsychological assessment was not possible. • On 16 and 28 October 2013 Dr Pulman interviewed and assessed the appellant at Long Bay Hospital. • On 28 October 2013 Dr Reid reported that the appellant's premorbid level of intellectual ability was within the average range, his non-verbal intellectual functions in the extremely low range (1st percentile for persons of a similar age) and overall intellectual ability as significantly below the premorbid estimate. He concluded that there was no issue of diminished responsibility, but that the appellant's level of depression was having a significant impact on his cognitive abilities and level of effort in performing cognitive tasks and was "of sufficient severity to affect his cognitive functioning and fitness for standing trial." Dr Reid recommended further psychiatric assessment, this time with a focus on his depression. • On 7 November 2013 Dr Pulman provided a report in which she assessed the appellant's overall intellectual functioning as within the Low Average range and at the 12th percentile, based on the Wechsler Adult Intelligence Scale (WAIS-IV). She expressed this functioning as "at a level equal to or better than 12 per cent of the normal population on this test". Dr Pulman concluded that the appellant was fit to stand trial, was not, at the time of her report suffering from a mental illness and that there was no evidence he had sustained a significant brain injury in his past which could have impacted on his capacity to form intent or have reduced his mental capacity to any significant extent. • On 14 November 2013 the appellant was arraigned and entered a plea of guilty.

[10]

The Ellis discount

I discussed this question at some length in Raad. The Bench in that case agreed that the appeal should be upheld for the reasons expressed in my judgment but McClellan CJ at CL and Button J did not agree with me on the issue of whether a finding of special circumstances should be made within the meaning of s 44 of the Crimes (Sentencing Procedure) Act such as to require an adjustment of what might be called the default ratio specified by that section: I thought there were special circumstances that justified such a reduction of the non-parole period but my colleagues did not. In dealing with the issue upon which the Bench was agreed, I discussed the policy considerations relevant to assessing the appropriate discount in an Ellis situation and referred to the cases of murder where this question had arisen. My views are unchanged and I have therefore adopted the convenient course of setting out in this judgment what I said in Raad - "[19] The learned sentencing judge found that, in addition to the maximum discount for his plea of guilty, the appellant 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, citing the well known authority of R v Ellis (1986) 6 NSWLR 603. His Honour also cited the following passage from the judgment of McHugh J in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 - '[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.' The learned sentencing judge added - '20 Nevertheless, however significant the Ellis factors ought to be, the sentence imposed cannot fall below that which is appropriate for the seriousness of the crime.' [Emphasis added.] [20] It is important, in my respectful opinion, to bear in mind that (what might conveniently be called) an Ellis situation gives rise to two distinct matters that need to be taken into account. First, it informs the assessment of remorse and contrition and reduces, potentially to insignificance, the requirement for personal deterrence. It seems to me it also reduces the materiality of general deterrence, since it would be directed to that miniscule class of individuals minded to commit crimes and then admit to them. At the same time, the notions of retribution and denunciation are undoubtedly still of considerable importance. But they are only a part of the answer to the question, 'What does this particular offender deserve?' and are necessarily affected, whether favourably or adversely to the offender, by the whole of the circumstances including - as is typical of the Ellis cases - the marked change in the character and personal attributes of the person being sentenced as distinct from the way that person was when the crime was committed. This is no more than noting the incommensurable character of the factors forming the instinctive synthesis which is ultimately expressed in the sentence. These considerations may be usefully termed the 'Ellis personal features'. [21] A second very significant factor in Ellis cases is the policy of the law that offenders should be encouraged to come forward, a rather more objective and distinct matter than the personal attributes of the particular offender and his or her motivations. Thus, in Ellis , Street CJ at 604 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.' [Emphasis added.] This passage was cited with approval by McHugh J in Ryan. [22] Accordingly, it is necessary to consider whether the sentence which is proposed to be passed would be likely to encourage a guilty person to come forward as distinct, of course, to deter him or her from doing so. This matter may be termed the 'Ellis policy feature'. With respect, I am unsure whether the significance of this feature is encompassed by the learned sentencing judge's statement of principle quoted above that "the sentence imposed cannot fall below that which is appropriate for the seriousness of the crime", language reflective of conventional considerations applying to sentencing, although including the Ellis factors as justifying a considerable degree of leniency. [23] On the face of it, a confession of the kind made by the appellant is well within s23 of the Crimes (Criminal Procedure) Act 1999, sub-s(1) of which reads - "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." The "offence concerned" is the particular offence for which the offender is to be sentenced, a point made clear by para 23(2)(i). The application of this provision was not brought to the sentencing judge's attention and his Honour did not refer to it. This may be of little matter since the section appears to state the common law. However, s23(3) makes it clear that the limitation on the extent to which the sentence might be reduced under this head is such that the sentence will "not be unreasonably disproportionate to the nature and circumstances of the offence" (emphasis added). The assumption made by the Parliament is, therefore, that the resulting sentence will be "disproportionate" but requires that it be not "unreasonably" so. [24] Clearly the assessment in any particular case whether the disproportion is unreasonable is a matter of judgment upon which reasonable minds may differ. One of the matters that should be borne in mind, as I think, is that, since the expected sentence is lengthened as the seriousness of the crime increases, the graver the crime the greater the inducement to remain silent, so that the discount given to encourage confession must be all the greater in absolute terms. This consideration, of course, is made in the context that, had the offender not come forward and confessed, he or she (in a case such as the present) would not be facing any punishment at all. This is in marked contrast with the case where an offender decides to assist the authorities in respect of the criminal activities of another. He or she is already facing punishment. I do not underestimate the personal risks that some such informants can face. However, someone in the appellant's position was facing sure and substantial punishment as against no punishment at all. [25] Even though the offender in this situation is almost invariably motivated by very strong feelings of remorse, the likelihood of a heavy sentence will obviously operate as a considerable, probably decisive, deterrent; if he or she is to be encouraged to come forward, it is self-evident that the sentence must be considerably lessened. Perhaps this is to say little more than Street CJ said in Ellis about the need to extend "considerable" leniency in these cases. I simply point out that, to be effective, this leniency might well need to be very considerable indeed. It hardly needs to be added that the mere fact that in any particular case the offender is - at least at the time of confession - indifferent to the length of the sentence that might be meted out is irrelevant. The policy is directed to those offenders who are minded to confess by their feelings of guilt, and might be encouraged to come forward by the considerable leniency they could expect. For the reasons I explain below, I am of the respectful opinion that the leniency extended to the appellant was by a substantial margin less than the principle in Ellis required. Other Ellis cases [26] Before moving to a discussion of the way in which the sentencing judge calculated the sentences here, it is useful, as it seems to me, to look at previous cases of murder where Ellis considerations applied. Not surprisingly, they are rare. It is difficult to avoid the suspicion that the rarity is, at least in part, due to an apprehension that a resulting sentence is likely to be severe, even though probably much less severe than the conventional applicable sentence. [27] In R v Bawden (unreported, NSWSC 30 October 1992) the offender walked into a police station and confessed to a murder committed 17 years previously for which the victim's husband had been wrongly convicted. It became clear that his confession was genuine and that it was motivated by his feelings of guilt about the killing. The offender had only become aware of the husband's conviction a few days earlier. Although there were some doubts at first about the genuineness of the confession, following an enquiry under s475 of the Crimes Act 1900 the husband was pardoned and the offender was charged and convicted on his plea of guilty. The circumstances of the crime were particularly serious. The appellant, then 22 years of age and under considerable personal stress, forced his way into the victim's home when she answered his knock at the door. She was a stranger. When she started to scream and a struggle started he took a shirt and wrapped it around her neck, tightening it as she continued to struggle. When she stopped struggling he dragged her down the hall into the bedroom, by which time she was probably dead. Although a sexual motive was suspected, the appellant denied this and claimed he had only intended to steal property from the house. Matthews J accepted that this was so. Her Honour found that the offence was 'quite out of character' and noted that he had attempted suicide on three or four subsequent occasions. Her Honour thought that these attempts, his transient life style, and difficulties with relationships were a product of his guilt about the killing and accepted that this had preyed on his mind from the beginning. She found that it was his desire to put his life in order and the need to be punished for his crime that motivated him to hand himself into police and make his confession. Although the motivation for the killing was baffling in light of the offender's character, Matthews J found that it was an isolated act of violence and there was no danger of his reoffending. [28] Matthews J held that the lapse of time was not a mitigating feature since it arose from his own failure to come forward but commented that 'it is impossible to ignore the fact that that the prisoner ...is an entirely different man from the person who [committed the murder] almost twenty years ago. Time and guilt have taken their toll upon him'. Her Honour accepted that the confession was telling evidence of remorse. There was no prospect of his guilt being suspected, let alone known. Accordingly, her Honour held that 'he is deserving of substantial leniency ... [not only because] his action indicate[s] extreme contrition in a subjective sense but it is part of the policy of the criminal law to encourage guilty people to come forward and disclose their guilt ... [and the] only way that this can be done is by extending leniency to those who do so'. [29] Commenting that "I need hardly say that this case presents special circumstances which entitle me to vary the proportions [between the minimum and total terms]". Matthews J imposed a sentence of fifteen years with a minimum term of eight years. [30] In R v MHN [1998] NSWSC 533, the offender killed the deceased, in the course of a "cowardly attack by four persons against [the victim]". His skull was fractured by kicks inflicted by the offender and unconscious or semi-conscious, he was taken to the premises occupied by one of the assailants, and, following an unsuccessful attempt to strangle him, his throat was cut by the offender, who was only 17 years of age at the time. The body was taken away and left on a nearby building site. The offender and his victim had known each other for some time and there was considerable (unexplained) ill-feeling between them. [The injuries, ultimately fatal, were inflicted with "cool premeditation". In part the motivation was the elimination of a witness who threated to go to the police. The offender suffered from long term undiagnosed depression. He was a suspect but had not been charged when he confessed to his involvement in the offence. Investigations were continuing. He was sentenced to 22 years with a non-parole period of 16 years.] [31] In R v McCabe (unreported, NSWCCA 14 October 1991) the offender's sentence following a plea of guilty to murder of twenty years imprisonment with a minimum term of fifteen years was reduced on appeal to sixteen years with a minimum term of nine years. The deceased, an elderly woman, died in her unit following the infliction of seven stab wounds. Although the appellant was interviewed in the course of the police investigation as she had moved into an adjacent unit the day before the killing, her statement that she was absent from the building at the time was accepted by police and she was discounted as a suspect. About two and a half years later the offender, accompanied by a solicitor, walked into a police station and said that she believed she might have been responsible for the killing. The offender told police at first that she had been given entry into the unit and the victim had threatened her with a knife when she was stealing money from a wall unit. She claimed the victim was fatally stabbed in the ensuing struggle. She said that she was 'hanging out' for drugs, though not intoxicated and discovered the victim was dead when she read of it in the newspaper a few days later. She had no explanation for the seven stab wounds that were inflicted. In due course, she was committed for trial. Shortly after, the offender made a second statement to police, saying that she was heavily intoxicated on the night in question and had little memory of what happened. She admitted taking the knife to the unit when she had gone there to return the victim's umbrella but had no idea why she had the knife with her. Although she remembered stabbing the victim twice in the neck and throat, she could not recall why. The offender then changed her plea to guilty of murder. She did not give evidence in the sentence proceedings. The sentencing judge's findings that the offender was not significantly intoxicated at the time of the crime but that she was suffering from a mental disorder occasioned by prolonged drug abuse associated with an appallingly sad personal background were accepted on appeal as were his Honour's findings that she had made very significant steps towards rehabilitation. [32] Matthews J (with whom Gleeson CJ and Carruthers J agreed) observed that the sentence imposed at first instance was 'on any view of the matter... a lengthy term of imprisonment for murder', pointing to the range of sentences for murder that had recently been passed, the highest of which was one of twenty four years with a minimum term of fifteen years for a murder described by her Honour as 'a much more serious matter" both objectively and subjectively than the crime under appeal. Her Honour said that other serious cases of murder which did not have "substantial mitigating features' resulted in sentences 'roughly similar' to the appellant's, thus it fell 'within the upper range of sentences for murder over recent years'. Although the objective circumstances were 'very serious indeed' her Honour pointed to the appellant's strong subjective case, which included physical and sexual abuse as a child. She was only nineteen years of age at the time of the crime, with a minor criminal history. Matthews J concluded that the sentencing judge had given inadequate weight to the appellant's remorse, which had been somewhat diminished by the conflicting accounts of the offence, but compellingly demonstrated by her having come forward to confess when there was no prospect of being apprehended. Her Honour added - 'In my view, the fact that the appellant came forward and confessed to the killing two and a half years after the event should be given considerable weight upon sentence. Not only did it provide graphic evidence of the appellant's remorse in a subjective sense, but there is also a policy consideration involved.' [citing Ellis ibid at 604, emphasis added.] Her Honour considered that there was 'compelling evidence of special circumstances' comprising the appellant's 'most difficult and unusual background ... leading to an altered mental state at the time of the killing ... her youth ... the fact that she gave herself up ... and ... the very strong evidence of her rehabilitation ...' thus justifying the minimum term of nine years. I would point out that the fact that all of these factors were relevant also in determining the total sentence did not prevent them from being again considered for the purpose of determining whether they also warranted a variation of the statutory ratio, a matter to which I return. [33] In R v Baldacchino [1998] NSWSC 723 the offender murdered one Joseph Farrugia in August 1985. After becoming a Jehovah's Witness in October 1995 and telling his wife and Elders of the congregation in April 1997 of his commission of the crime, he went to the police in May 1997 and made a full confession. The objective circumstances were particularly serious. His then girlfriend had been ordered as part of a property settlement to pay $20,000 to Joseph Farrugia, her ex-husband. The couple unsuccessfully attempted to procure two persons to kill him and then, on her instigation, the offender planned to kill Farrugia himself by using a .22 rifle the barrel of which he shortened and machined to accept a silencer. On the night of the crime, he had been drinking quite heavily and went to the victim's house, entering through a window forced open with a screwdriver, but the victim was not at home. He left and returned about 30 minutes later. Seeing the victim's car in the driveway, he reentered through the window, discovered the victim asleep in bed, put the rifle to his head and shot him. He then disposed of the rifle and other items that may have been contaminated with blood. The offender married his girlfriend the following year but the marriage was short and they separated after a couple of years, divorcing in 1996. In about 1989 he turned to religion and became increasingly troubled in his conscience by Farrugia's murder. The sentencing judge accepted that he had been suffering from severe depression at the time of the killing, which condition had continued to affect him episodically ever since, though improving somewhat with his religious conversion. In addition to his own confession, the offender agreed to assist the authorities in the prosecution of charges against his ex-wife. But for his confession there was no prospect that he would have been identified as the killer. [34] The sentencing judge found that the offender's expressions of remorse and contrition were genuine and deeply felt and that, except for the killing of Farrugia, he was not a violent man. [35] The sentencing judge categorised the murder as a 'cold-blooded assassination' primarily to satisfy his girlfriend's greed, involving the invasion of the victim's home. His Honour accepted that s442B of the Crimes Act 1900 concerning assistance to the authorities (now repealed and replaced by sec 23 of the Crimes (Sentencing Procedure) Act 1999) applied to the case, noting that sub-s (2) prohibited a reduction to the sentence 'so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence'. The offender was sentenced to a minimum term of eight years with an additional term of eight years. The special circumstances comprised 'the possible effect of such a lengthy sentence on the existing and expected rehabilitation, the estrangement from the prisoner's church where there appear to be no other family or friend support mechanisms operating and the likelihood that custodial circumstances would be harsher because of the assistance that the prisoner has rendered to authorities [together with] an extended period of supervision ... in both the prisoner's and the community interest'. [36] In R v JSK [2004] NSWSC 470 the offender, not being a suspect, handed himself into police almost three years after he murdered the deceased and confessed his guilt. At the date of the crime he was 16 years of age and his victim was 17. About a week earlier, he and MH (just short of 18), who were members of a circle of friends that included the deceased, discussed killing him as he was becoming involved with MH's girlfriend. The three youths drove to an area of bushland in MH's car. MH struck the deceased with a piece of timber picked up from the ground, the offender hit and kicked him until he was unconscious and the two then dropped a large log several times onto his head until they believed he was dead. He was buried in a shallow grave dug with a shovel brought for that purpose. The offender took the deceased's wallet and mobile phone and hid them. [37] Buddin J summarised the objective circumstances as follows - '[9] Whilst the offender must be given credit for his obvious candour in disclosing the details of the events that led to the death of the deceased, the fact remains that this was a cowardly and cold-blooded killing perpetrated upon a young man who would have had absolutely no reason to suspect that he was to be murdered by two of his friends. Moreover, the offence was committed in company and there was at least a degree of premeditation about it. Certainly by the time that MH arrived at the offender's place with the deceased in his car on the day of his death, the offender was well aware that MH intended carrying out his stated intention to kill the deceased and that he was expected to participate in MH's plan to do so.' [38] Buddin J accepted expert evidence that the offender was somewhat more immature for his age than normal and was thus more vulnerable to the influence of MH than might otherwise have been the case. His background was appalling, having been abused from an early age by his natural parents who were intellectually disabled. Having been placed in foster care, he was eventually adopted when he was 12 and lost contact with his parents, which caused considerable distress. He was genuinely remorseful and his coming forward was prompted by strong feelings of guilt. Whilst in custody he had made substantial progress in his personal development. An additional material factor was the offender's willingness to give evidence against MH. He had no prior criminal convictions and was otherwise a person of good character. He was most unlikely to reoffend. When transferred ultimately to adult prison he would need to be placed in protection. [39] The offender was sentenced to eleven years imprisonment with a non-parole period of seven years. The special circumstances "in particular" comprised the fact that the offender had not previously been in gaol and that, upon release, he would require considerable supervision and assistance to facilitate his reintegration into the community. [40] (For completeness I should mention R v Harris [2000] NSWSC 285 and R v Barker [2001] NSWSC 295, but these cases are for various reasons so different from the present as not to be of any real assistance.)"

[11]

Subjective circumstances

I have already referred briefly to the findings of the primary judge in this respect, which are not presently controversial and which, if I may respectfully say so, fairly reflect the evidence.
The primary judge observed, as I have mentioned, that the offence was "unlikely to have occurred had it not been for the low intelligence and personality problems suffered by the offender" who was "obviously a vulnerable and suggestible person". In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 McClellan CJ at CL helpfully, with respect, set out the principles developed in sentencing an offender who is suffering from a mental illness, intellectual handicap or other mental problems (at [177]), reciting a significant number of cases in which the issue has been considered and summarising the principles as follows - "● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that, because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

[12]

Conclusion

In my view, an appropriate starting point before applying the discounts is a sentence of 20 years imprisonment; to this sentence I would apply an Ellis discount of 60 per cent and a discount for the plea of 20 per cent, in total 80 per cent. This would result in an overall sentence of 4 years. Even taking full account of the substantial public policy considerations arising from the appellant's having come forward and making a full and frank confession of his involvement in a previously unknown crime, this figure is not only disproportionate to the nature and circumstances of the offence but unreasonably so in the sense of sub-s 23(3) of the Act. Moreover, given the reasons for the Ellis discount, there is also a degree of double counting in the accumulation of the Ellis and guilty plea utilitarian discounts. I would therefore propose that the overall sentence should be reduced to 8 years, resulting from a contraction of the Ellis discount from 60 per cent to 50 per cent and the discount for the plea from 20 per cent to 10 per cent. Applying what might be called the default ratio specified in s 44 of the Act, this would lead (absent special circumstances justifying change) to a non-parole period of 6 years. Since, as it seems to me, this period is the minimum necessary for the appellant to serve in the circumstances and (though minds may reasonably differ as to this) there are no matters of particular significance pointing strongly to the existence of the relevant special circumstances, I would not propose that this non-parole period be further reduced. This explanation satisfies the requirements of sub-s 23(4). It follows that I propose the following orders - 1. Leave to appeal granted. 2. Appeal upheld. 3. Sentence quashed, in lieu thereof there be substituted a sentence comprising a non-parole period of 6 years commencing 12 November 2010 and expiring on 11 November 2016 with an additional term of 2 years commencing 12 November 2016 and expiring on 11 November 2018.

[13]

Additional remarks

Since writing the above, I have had the benefit of reading in draft the judgments of Ward JA and Bellew J. Whilst accepting the desirability of reaching unanimity if possible on the setting of the new sentence, given especially the consideration that there is a substantial range within which a sentence may be said to be appropriate, with unfeigned respect, I find myself unable to agree with the sentence their Honours propose. (In this respect, it should be borne in mind that the relevant comparison is that between the discount I propose and that proposed by the majority before applying the s 23(3) considerations.) To my mind it does not, by a considerable margin, reflect the exceptional character of the circumstance in which the appellant came forward and the marked difference between the situation when assistance to authorities is given by someone facing an inevitable term of imprisonment in order to bargain for a reduction and that occurring here where then appellant was not in danger of imprisonment at all and now faces incarceration for a lengthy period.
Furthermore, in my respectful view, the allowance made for the plea in effect gives inadequate significance to the unusual circumstances which led to the delay, in particular, because the approach adopted will place pressure on those advising a mentally compromised individual to plead early without obtaining the expert opinion which is essential to enable proper consideration to the appropriate plea. Where obtaining such an opinion is beyond the means of the offender, the unfairness of disregarding the cause of delay is manifest. The public policy underlying the scheme is not adversely affected by recognizing practical realities.
Since my conclusion as to the appropriate discount are so far removed from that proposed by the majority, and the sentence I propose cannot be imposed, there is clearly no point in my reconsidering the starting point which, in the nature of things, is susceptible to a greater range of outcomes. Here, however, it appears we differ both as to the level of objective seriousness and the impact of the appellant's subjective features, especially the significance of the appellant's problematic mental capacity.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Adams J. I agree, for the reasons that his Honour has expressed, that ground 2 of the appeal should be upheld.

[14]

The plea

The circumstances leading to the appellant entering a plea of guilty are comprehensively set out by Adams J commencing at [42]. It is evident that some of the delay leading up to that point was occasioned as a consequence of difficulties in having the appellant medically examined, and obtaining associated reports. Equally, as Adams J has pointed out at [42] (by reference to the judgment of Spigelman CJ in Thomson and Houlton) the primary consideration in determining where, in the range, a particular case should fall, is the timing of the plea.
In the present case, the plea of guilty was entered two days before the scheduled commencement of the trial. In those circumstances I would allow a discount of 10% to reflect the appellant's plea of guilty.

[15]

The appellant's subjective case

The circumstances relevant to an assessment of the applicant's subjective case are set out by Adams J commencing at [22] and it is not necessary for me to repeat them. I agree that in view of the medical evidence, questions of general deterrence assume less significance in the present case. Personal deterrence is also of little significance in light of the appellant's voluntary disclosure of his offending to police.
I also accept that the appellant is genuinely remorseful, that his prospects of rehabilitation are good, and that he is unlikely to re-offend.

[16]

The Ellis discount

Adams J has reviewed (commencing at [49]) a number of authorities in which an Ellis discount has been applied. Because the facts of cases necessarily differ, those authorities are of limited assistance in determining the extent of Ellis discount which should be applied in a given case. In my view, for that reason, there can be no general principle derived from the authorities that an Ellis discount is likely to be greater than the discount applied to reflect other forms of assistance, such as informing on accomplices or other criminals. The level of discount will necessarily depend upon a variety of circumstances.
Further, and although voluntary disclosure of offending is to be encouraged, the determination of an appropriate sentence in any case will obviously depend upon the consideration of a range of factors. For that reason I am unable to agree with the observation of Adams J (at [51]) that persons should not be deterred from voluntarily disclosing their offending by the prospect of a custodial sentence which is "too lengthy". In my respectful view, such an observation has the capacity to convey some expectation that voluntary disclosure of offending will, without more, result in the imposition of a sentence within a low range. In my view, consistent with principle, it needs only to be stated that persons who are minded to voluntarily disclose their offending can proceed in the knowledge that taking that course will entitle them to an element of leniency on sentence: Ellis at 604 per Street CJ. The degree of leniency will necessarily depend upon a number of factors.
In the present case, the appellant's voluntary disclosure was made in circumstances where he was not a suspect in the investigation. The agreed facts make it clear that in the absence of the appellant's admissions, there was no prospect of the deceased's murder, or the appellant's involvement in it, coming to light. Considerable leniency must be extended to the appellant in those circumstances: Ellis at 604 per Street CJ.

[17]

Conclusion

Having regard to all of the circumstances, I regard an appropriate sentence, before the application of any discount(s), to be 24 years imprisonment.
Where, as here, a discount is to be applied to reflect a plea of guilty, the terms of s. 23(3) of the Act must be separately applied with respect to any discount for assistance. However, a sentencing court should be mindful of the combined effect of the two discounts: SL v R [2015] NSWCCA 30 at [11]-[12] per Basten JA.
The court should also be mindful of the fact that the constraint imposed by s. 23(3) will not generally be met by allowing a combined discount of more than 50%: Z v R [2015] NSWCCA 323 at [33] per McCallum J, Garling J agreeing, Hoeben CJ at CL dissenting but not as to the principle.
I have already concluded that the appropriate discount to reflect the appellant's plea is 10%. The appellant's assistance in voluntarily disclosing his offending was obviously high. It included leading the police to the location at which the deceased's body had been buried, so as to allow the deceased's remains to be exhumed. In these circumstances the assistance was fulsome. Of itself it would, in my view, attract a discount of 50%. The combined discount would therefore be one of 60%.
Applying a combined discount of 60% to a sentence of 24 years imprisonment would result in a total sentence (rounded slightly down) of 9½ years imprisonment. There being no proper basis for a finding of special circumstances such a sentence would comprise a non-parole period (rounded down) of 7 years imprisonment, with a balance of term of 2½ years. However in my view, in terms of s. 23(3), such a sentence would be unreasonably disproportionate to the nature and circumstances of the offence. This is particularly so having regard to what I consider to be the brutality of the appellant's attack, and his subsequent conduct in (inter alia) burying the deceased's body in an attempt to avoid detection.
I would therefore propose that a combined discount of 50% be applied. This would result in the imposition of a total term of imprisonment of 12 years, comprising a non-parole period of 9 years and an additional term of 3 years.
The matters which are required by s. 23(4)(a) and (c) to be indicated or stated will be apparent from my reasons. For the purposes of s. 23(3)(b), I state that the total sentence I would otherwise have imposed would have been a term of imprisonment of 21 years and 6 months: SL (supra) at [10] per Basten JA citing Horne v R [2014] NSWCCA 133.

[18]

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed by the primary judge quashed. 4. In lieu thereof, the appellant is sentenced to a non-parole period of 9 years imprisonment commencing on 12 November 2010 and expiring on 11 November 2019, with an additional term of 3 years imprisonment, commencing on 12 November 2019 and expiring on 11 November 2022.

[19]

Amendments 17 May 2016 - Order 4 in par 80 and on cover sheet amended to read "and expiring on 11 November 2022." 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: 17 May 2016

Panetta v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (40)

Cited By (26)