REGINA v. HOLLIS [2002] NSWCCA 306

TUESDAY 30 JULY 2002 REGINA v. MARK NEWMAN HOLLIS Judgment 1 SPERLING, J: I ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: This is an application for an extension of time to appeal and for leave to appeal against sentences imposed on the applicant in the District Court on 9 April 1999 in respect of six counts in a s.51A document, five counts on an indictment and three counts on another indictment. 3 The offences charged in these various documents included, on the s.51A document, one charge of indecent assault on a person under the age of 16 years, aged between 10 and 11 years, said to be committed during the year 1989, it being an offence under s.61E(1A), (3) of the Crimes Act 1900 for which the maximum penalty prescribed at the time the offence was committed was six years penal servitude; one charge of attempting to have sexual intercourse with a person under the age of 16 years, to wit, between 10 and 11 years, said to have been committed again in 1989, an offence under the then existing provisions of the Crimes Act 1900, s.66D, and s.66C(2), punishable by a maximum penalty of 10 years penal servitude; and a further count of sexual intercourse with a person under the age of 10 years, to wit, aged two years, said to have been committed in 1991, an offence under s.66A of the Crimes Act 1900 punishable by a maximum penalty of 20 years custodial confinement. 4 The charges on the first of the two indictments presented were one charge of indecent assault of a male person between 1975 and 1980, an offence under s.81 of the Crimes Act 1900 punishable by five years penal servitude; one count of indecent assault upon a person under the age of 16 years, to wit aged six years, said to have been committed in the year 1976, to which s.76 of the Crimes Act 1900 had applied a maximum penalty of six years penal servitude; one charge of indecent assault upon a person under the age of 16 years, to wit aged seven years, said to have been committed in the year 1977, again an offence under s.76 of the Crimes Act 1900 and similarly punishable; one charge of an offence against a person under the age of 16 years, to wit, eight years, in 1979, again, an offence under s.76 of the Crimes Act 1900 and similarly punishable; and an offence of aggravated indecent assault upon a person under the age of 16 years, to wit aged five years, said to have been committed in July or August 1996, an offence under s.61M(2) of the Crimes Act 1900 punishable by a maximum penalty of 10 years imprisonment. 5 In the other indictment there were three counts of inciting a person to an act of indecency, where the person was under 16 years of age, namely 10 years of age, and in each case those offences were said to have been committed in 1989, being offences under s.61E(2), (3) of the Crimes Act 1900 punishable by a maximum penalty of two years imprisonment. 6 It can be seen that this is an horrific progression of offences of a sexual nature against very young children. It is not surprising that in those circumstances the trial judge was minded to pass severe sentences of imprisonment. For the offences on the s.51A document the trial judge passed a sentence on the first charge of a fixed term of imprisonment of two years to commence on 1 December 1998. That sentence was to be served concurrently with all other sentences. 7 On the charge of attempt to have sexual intercourse with a person under the age of 16 years, the trial judge passed a sentence of a fixed term of three years imprisonment wholly concurrent. On the charge of sexual intercourse with a person under the age of 16 years, to wit aged two years, his Honour passed a sentence comprising a minimum term of six years penal servitude and an additional term of four years penal servitude. All other sentences were concurrent with this and with each other. 8 On the indictment in which the four offences of indecent assault had been charged, on each count of indecent assault his Honour imposed a fixed term of imprisonment of two years; and for the count of aggravated indecent assault, a fixed term of three years. 9 On the other indictment on each count his Honour imposed a fixed term of imprisonment of 12 months. The structure of the sentences therefore it may be seen, as turning on the sentence for the crime of sexual intercourse with the two year old as attracting the major sentence, and the other sentences being entirely subsumed by reason of their concurrence with that sentence. 10 It becomes apparent too that as at the hearing of this matter, all the sentences but that for the intercourse with the two year old have been served. Notwithstanding the delay in the matter coming forward, the extension of time is sought upon the basis of matters set out in affidavits that have been read in these proceedings. It is unnecessary to refer to the detail of those affidavits, since, except in one respect, no challenge is made to the matters of fact referred to therein, and the extension of time is, except insofar as it might be affected by the merits of the appeal, unopposed by the Crown. 11 We have in the event heard full argument on the application for leave to appeal and on the appeal. In my view, in those circumstances, the extension of time and the application for leave to appeal for that reason alone should be granted. 12 The appeal is, however, in nature, highly confined. Recognising that the other sentences have been served, it is sought only to appeal against the sentence imposed in respect of the sexual intercourse with the two year old. The written submissions filed in support of that appeal are within limited confines. Attention is drawn to the applicant's admission that he had to some degree penetrated the body of the baby, and reliance is placed upon his making of that admission to the police, and in his plea, particularly for the purpose of contending that the trial judge fell into error by failing to afford to the applicant in respect of that sentence a discount of the kind referred to in The Queen v. Ellis (1986) 6 NSWLR 603, that being a discount to which s.23 of the Crimes (Sentencing Procedure) Act 1999 now relates. 13 Section 23 provides that a court may impose a lesser penalty than it would otherwise impose, having regard to the degree to which an offender has assisted. In deciding whether to impose that lesser sentence, s.23 requires that enumerated matters set forth in s.23(2) be the subject of consideration, one of which is the nature and extent of the assistance. Others relate to the significance and usefulness of assistance, the timeliness of assistance, whether the offender will suffer harsher custodial sentences in consequence of the assistance and the likelihood of the commission of further offences upon release. 14 But all of those matters and the extent to which a court might afford some such discount as the Ellis discount are qualified by s.23(3), which provides that:- "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 offences." 15 That principle also applies at common law. 16 It is contended that although the trial judge gave a discount to the applicant on the sentences for certain of the charges, he failed to enunciate expressly a discount for the acknowledging of his acts on this charge to the police, and thus failure was such as to show the sentence for failing to include an appropriate discount on this basis was excessive, so that the court would conclude that a lesser sentence was warranted in law, and should have been passed, thus attracting the application of s.6(3) of the Criminal Appeal Act 1912. 17 In the oral submissions reference was made to the structure of the sentence as possibly having infringed the principles enunciated by the High Court in Pearce v. The Queen (1998) 194 CLR 610 but no discrete ground of appeal was advanced on that basis. It can be seen that no sentence was cumulated and I have already referred to the subsuming of each sentence in that passed for the offence under appeal but, although reference was made to this matter in argument, since the applicant in the circumstances confined the challenge to the length of the sentence remaining to be fully served, it is not necessary, now, to consider whether there was an error of the Pearce kind. 18 The Crown conceded that the trial judge may have failed to apply the principles in Pearce (supra), but contended that had the sentences been accumulated in accordance with Pearce (supra) no lesser sentence on this charge in overall effect would have properly resulted and that there was no such material error in what had occurred, so as to enable the application of s.6(3) of the Criminal Appeal Act 1912. In particular, it was contended that a limitation, as here, of the appeal to only one of a number of sentences imposed as part of a complex, where the others have been served, and where the appeal is in reliance on a Pearce error, would or could produce, should the argument be successful, an entirely artificial result arising in effect from the delay of the appeal. 19 The Crown submitted that in those circumstances, either leave should be refused or the appeal dismissed, unless the sentence was manifestly excessive when considered, having regard to the objective criminality of the events the subject of that count in the context of the crimes attracting the other sentences, and the subjective circumstances of the applicant. 20 The Crown in this case did not seek to resile from its concession that the extension of time should be granted to enable the court to hear the appeal. Its submission therefore concluded that in this regard either the Pearce problem should not be regarded as affecting practically the result, or alternatively, the sentence in any event considered appropriately as a discrete sentence was not such as to attract the application of s.6(3). 21 As I have said, it is not necessary to turn to the consideration here of whether there has been some procedural error arising from the failure of the trial judge so long ago to apply the principles in Pearce (supra), since it is not contended on the applicant's part that the appeal should be allowed on that basis. It is, however, contended for the applicant that the failure to afford the Ellis discount, which it is contended can be concluded as not afforded from the effect of certain passages of the trial judge's remarks on sentence, to which I will turn in a moment, showed error if this sentence were to be considered in isolation and in regard to its objective criminality, even in context and considering the subjective circumstances notwithstanding the sentence was originally part of a complex of sentencing 22 It was submitted that the offence should be considered as low on the scale of objective criminality, in particular because of the asserted limited degree of penetration, and that a high degree of leniency should be attracted to the applicant's admission of the fact of penetration, which could not otherwise have been proved. 23 It was submitted he went to the police and disclosed his own criminality, in circumstances where, considering the age of the victim and the circumstances of the offence, at least the penetration aspect of it, would not otherwise have been disclosed; that he went to the police at a time when the parents of the victim were only "considering" whether or not the matter should be drawn to the attention of the police and hence, although he was aware of that possibility, he nonetheless still should receive the maximum discount. 24 It was submitted that although there were others who knew of his criminality, they were persons who bore such a relationship to him by means of either sharing a common religious belief or being his wife, that they were unlikely to disclose the matter. It was submitted that the course he took in respect of this and the other offences of apologising to the parents before going to the police, should not in any way have disqualified him from receiving the benefit of that discount. 25 Our attention was drawn to the decision of this court in The Queen v. CDH [2002] NSWCCA 103 and, in particular, the passage quoted in that decision from the judgment of Kirby, J. in Ryan v. The Queen [2001] HCA 21 indicating that, where there had been disclosure of criminality which otherwise might not have been disclosed, a significant discount should be given. 26 I turn to his Honour's remarks on sentence. He referred to the detail of the offences. It is not necessary in this judgment to repeat that detail. Insofar as a submission was made to us that the other offences were offences of touching, it is sufficient to say that, although they did not involve, except in one case where oral sex was committed, actual penetration, they did involve circumstances of very serious criminal sexual activity. 27 His Honour referred to matters which, in the offender's own background, had to receive consideration, including that he himself was the victim of sexual assault. He referred to the offender's own attempts to obtain medical assistance for what was viewed by the offender and his wife as an illness. He referred to medical evidence that the offender did not "go out of his way plotting or stalking little girls". His Honour referred to the doctor's view that the offender did not seem to have sexual fantasies or urges. 28 His Honour expressed the view that he was impressed with the evidence of the applicant's wife, and her support for him. He considered the question of the circumstances under which the reporting to the police occurred. In that regard his Honour adverted specifically to one of the offences as attracting the Ellis principle. His Honour continued:- "However, the other matters involving people from the church were the subject of complaints from the families of the three girls, which were passed on to at least one member of the church who passed the complaints to the prisoner, and his wife. Whilst very good arguments have been presented both ways on this question, he deserves - when I say 'deserves' he will get - full credit, and as I have already announced in the sentence, receive full credit for advising the police about the [G] matters. However, certainly one family, that is BR's mother and father - were concerned around about the time he reported those matters to the police. I think, like most human actions, his reporting to the police at that time was as a result of a number of factors. It was not totally therapeutic: meaning thereby, to get these matters off his chest, I think it was, at least in part, activated by the activities of the parents or some of the parents of the victims." 29 It is contended, in relation to that extract, that that would indicate that no Ellis discount referable to the offences for which the relevant sentence was passed was afforded to the prisoner by the trial judge. I do not accept that submission. The trial judge has plainly referred to the reporting to the police. He has referred to the motivation for that report and, in particular, whether it was for therapeutic purposes. He has not, I think one should conclude, afforded to the appellant the benefit of a finding that there were no circumstances other than his own conscience, which might have moved him to come forward, because his Honour has referred to the family of the victim being concerned around about the time he reported those matters to the police. 30 His Honour held that he thought that the coming forward was at least in part activated by the activities of the parents, or some of the parents of the victims. 31 Really, the conclusion appears to be that the volunteering of assistance as to his own criminality in this particular respect was not an unalloyed emanation of his own conscience. I do not conclude from that that the trial judge fell into appellable error in failing to accord an Ellis discount, consider that the Ellis discount was referred to and this sentence was part of a complex of sentences to at least some of which the Ellis discount was expressly related. 32 Although submissions were made to suggest that the sentence was too severe, having regard to its objective criminality and the subjective circumstances relevant to the offender, when I have regard to the sentence itself, even having regard to the prospect that it might have been passed in accordance with a now obsolete attitude to structuring a sentence to reflect totality prior to the decision in Pearce (surpa), I am not prepared to conclude that the sentence was, even if regard had been had to an absence of an express enunciation of an Ellis discount, excessive. 33 Indeed, in my view, not only is no lesser sentence warranted in law, but any lesser sentence would have been unreasonably disproportionate even if it had been a lesser sentence by reason of the application of an Ellis discount. 34 I am fortified in my conclusion that his Honour did not fall into error in the way in which he treated that matter in his remarks on sentence, by the fact that the offender did not give evidence as to his intent to confess and assist or as to the course he took. Our attention was drawn to various passages of the evidence of his wife in the transcript. They were relied on rather than any evidence of the offender. 35 It was submitted, and properly, to us, that the trial judge regarded her as an estimable witness. However, my analysis of those passages does not lead me to conclude that there is a secure foundation for a finding, which it was submitted, it was incumbent on the trial judge to make, that a specific Ellis discount should be allowed for this offence on the basis he came forward and volunteered the information without regard to the activities of the parents. 36 The conclusion, therefore, I have reached in all the circumstances of this appeal is that, although the extension of time should be granted and the application for leave to appeal allowed, for the reasons I have expressed, the appeal itself should be dismissed. Therefore I propose those orders. 37 SPERLING, J: I agree. I would add the following observation. It seems to me that the application for leave to appeal proceeds upon a fiction. 38 It is apparent that the sentence imposed for the offence made the subject of the appeal was intended by the sentencing judge to cover the totality of criminality involved in all of the offences for which the applicant was being sentenced. In contrast, the appeal proceeds upon the basis that that sentence should be assessed as a sentence exclusively for the offence made the subject of the appeal. The fact that the sentencing judge did not structure the sentences in accordance with the decision in Regina v. Pearce (1998) 194 CLR 610 does not mean that the sentence made the subject of the appeal is translated into something which it is not. 39 For those reasons, I would doubt that this is an appropriate matter in which to grant leave to appeal on the basis upon which the application is made. However, for the reasons given by Greg James, J., even on the basis of the fiction which the applicant asks the court to accept, the sentence - treated as one exclusively for the offence to which it relates - is not shown to be one warranting the intervention of this court. 40 In these circumstances, I agree that it is expedient to grant both the application for extension of time and the application for leave to appeal, in order that the matter may be disposed of on the basis advanced on behalf of the applicant.

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