Regina v W

COUNSEL : P. Berman SC - Crown M. Connolly - Applicant SOLICITORS : S. E. O'Connor - Crown A. Mee Ling - Applicant

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Goodwin (1990) 51 A Crim R 328 CASES CITED: Astill No. 2 (1992) 64 A Crim R at 305 Gallagher (1991) 23 NSWLR 220 Fisk, unreported, CCA, 21 July 1998 DECISION : Application for leave to appeal granted; Appeal dismissed

1 SULLY J: The applicant seeks leave to appeal against the asserted severity of sentences of imprisonment that were passed upon him in the District Court at Sydney on 4 December 1998. The sentences were passed consequent upon pleas of guilty that the applicant had entered upon arraignment on 8 October 1998; and taking into account a further 11 offences scheduled for that purpose pursuant to the Criminal Procedure Act 1986 and the regulations made thereunder.

2 The indictment upon which the applicant was arraigned contained seven counts: one count of buggery; four counts of homosexual intercourse with a male under the age of 18 years; one count of attempted homosexual intercourse with a male under the age of 18 years; and one count of sexual intercourse without consent. Each count dealt with a separate, young, boy victim. One of the boys was aged about 17 at the material time; all the other boys were aged from about 13 to about 15.

3 The 11 scheduled offences consisted of two offences of buggery; three offences of homosexual intercourse with a male under the age of 18 years; three offences each entailing the commission of an act of gross indecency with a male under the age of 18 years; and three offences of indecent assault. 4 These 11 matters pertained to five named victims each of whom was a victim named in one of the seven counts in the indictment. Each of the five boys was a young teenager at the respective material times. One boy, the victim of one of the buggery offences, was aged about 10 at the material time. Another boy was aged between 11 and 12 when indecently assaulted. A third boy was aged about 16 at the time of one of the homosexual intercourse offences; and the ages, otherwise, of the victims fell generally in the age range of 13 to 15.

5 The 18 separate offences for the admitted commission of which the applicant was sentenced were without exception offences of gross depravity. They entailed the systematic seduction and debauchery of young teenage boys who were all, for various reasons, vulnerable to such abuse.

6 The offence of homosexual intercourse without consent as charged in count one of the indictment involved, to put the matter truthfully, the callous homosexual rape by two adults of a defenceless 13 or 14 year old boy. The victims of the offences charged in counts one and six of the indictment were shown by the evidence to have suffered a period of anal bleeding in the wake of their respective abuse. The evidence was not otherwise precise as to subsequent injury, physical or emotional; but the learned sentencing Judge made the following findings: "There is no detail before me as to the resulting impact the prisoner's offence had upon them. I infer from such material there is that for the most part they are disturbed and vulnerable boys and also infer the prisoner's conduct toward them is likely to have had or contributed to lasting consequence."

8 It is not necessary now to denounce the offences at length, for in truth they can only denounce themselves to anybody of ordinary common sense as offences of the gravest objective culpability. It is also unnecessary to canvas the details of the subjective features found by the learned sentencing Judge. It was not submitted to this Court that his Honour had erred, on the evidence before him, in his analysis of, and approach to, those matters. I do refer, however, but without quoting them at length, to the two full paragraphs at page 5 of the remarks on sentence. 9 The learned sentencing Judge structured the sentences so as to produce the overall effective result of imprisonment for ten years and six months divided between a minimum term of eight years and an additional term of two years and six months. The challenge now made to that result is based upon a proposition that there is to hand what has been described in argument as "fresh evidence", and that the fresh evidence has such cogency as would justify the intervention of this Court, and the re-sentencing of the applicant to a substantially reduced effective term of imprisonment.

10 The applicant has tendered, and the Court has received, affidavits sworn by himself; by his counsel in the District Court proceedings, (being counsel other than counsel now appearing for the applicant); and by his solicitor in those same District Court proceedings. These three affidavits do not establish, in my opinion, with any particularity at all the nature and extent of the assistance which the applicant says he gave law enforcement authorities in the period March to July 1996. The affidavits do depose to asserted facts that the applicant did not know at the time of his sentencing in the District Court that such assistance was of potential significance in connection with that sentence; that he did not therefore tell his solicitor and counsel about the assistance; and that they had no knowledge otherwise of that assistance.

11 That evidence, which was made available to the Court prior to the commencement of this morning's hearing, was supplemented at the hearing before the Court by the tender of certain written material, itself supplemented by the calling of some brief oral evidence. It is not necessary, on the view that I take of this matter, to delve in fine detail into what is disclosed, either in the written material, or in the supplementary oral evidence, except to say that it does establish in fact assistance of some apparent substance in the period March to July 1996.

12 When it is alleged in connection with an application for leave to appeal against sentence that fresh evidence justifies the reopening of the current sentence, the applicant must satisfy this Court, on the probabilities, of all of the following matters: (1) That the proposed fresh material is of such significance that the sentencing Judge, had he had the material before him at the time of primary sentencing, may have regarded it as having a real bearing upon his decision.

(2) That although its existence may have been known to the applicant, its significance was not realised by him at the time.

(3) That its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings.

13 These propositions are well settled law; and authority for them is provided by the decision of a differently constituted Bench of this Court in Goodwin (1990) 51 A Crim R 328. 14 There is, thus, a threshold question for this Court; namely, whether the Court should take into account as fresh evidence satisfying the stated tests the material in the written documents and the supplementary oral evidence that was received this morning. 15 I am myself satisfied that the first and third of the three required criteria are satisfied.

16 For myself, I have some doubt about whether the available material satisfies the second of those three criteria. 17 Paragraphs three and four of the affidavit of the applicant himself do not seem to be either consistent each with the other; or to come to grips in what I would regard as an appropriate way with the substance, as distinct from the form, of what is required to be established by the second of the three stated criteria.

18 Paragraph 3 of the affidavit propounds that the applicant did not give the appropriate information to his then solicitor and counsel for the reason that he was then, and is now, "very worried that if this assistance became generally known my life would be in great danger". 19 Paragraph 4 of the affidavit deposes to the proposition that at the time of the primary sentencing with which this Court is now concerned, the applicant "did not realise that what I had done in March to July 1996 as a registered informant would assist me in my sentencing proceedings".

20 The oral evidence which the Court heard earlier this morning seems to me to establish on the probabilities that the applicant made his initial approaches to the law enforcement authorities at a time when he was aware, - the evidence does not quite disclose how, or particularly when, but aware in fact, - that the law enforcement authorities were pursuing a number of alleged serial paedophiles of whom he was understood to be one.

21 The evidence seems to me to establish that his understanding and motivation are caught with complete clarity in the uncontradicted evidence of the witness this morning, that the applicant had come to the relevant authorities as a matter of "self preservation". There was later from the same witness evidence expressing the view, which I see no reason to doubt, and on the contrary every reason to accept, that what the applicant clearly had in mind by his initial approaches was that if he did something for the police, then in due course, and in his own hour of need, they would do something for him.

22 When there is added to the totality of that material the proposition, which it seems to me is an overwhelming rational inference to be drawn from the available material, that the Court is dealing in the present case with what might be described as a man of the world, who knew who was who and what was what in the milieu in which he moved, and in the milieu law enforcement as related to his own kind of activities and life style, then it seems to me to be an overwhelming inference that he did know at the time when he stood for sentence that he had done things which, if disclosed, might well be of benefit to him; and that he made a choice, - which I should myself have thought was entirely understandable, - that it was better overall from his position as he saw it not to disclose the assistance to authorities, and thereby to ensure that his imprisonment, - and it was as certain as could be that he would be imprisoned, - would not be made any more harsh than it undoubtedly was going to be in any case, by the disclosure of his assistance to law enforcement authorities.

23 My own view is that the Court should always make plain in any case where it is suggested that there is to hand fresh evidence genuinely so described and genuinely fitting within the prescribed criteria, that such an application involves in a real, substantial, and not merely formal sense an onus of proof on the applicant to bring his particular case squarely within the stated criteria. It would do no service to the administration of criminal justice to allow the development of a mind-set in the kind of milieu with which the Court is dealing in this case, to the effect that the offender can, as it were, make a cool-headed calculation prior to sentence of where his interest best lies in terms of disclosing past assistance to authorities; and then, if he gets a result that he happens not to like, bring to light for the first time before this Court that past assistance.

24 As I have said, for the whole of those reasons it would be my own view that on a proper, strict application of the relevant law to the known facts, the second of the three stated criteria to be derived from the decision in Goodwin could not fairly be found on the probabilities to have been established.

25 From my point of view, that itself would be sufficient to dispose of the present application; but I am content to accept for the purpose of present discussion that, contrary to my stated view, the preferred view ought to be that the applicant has at least brought himself within the Goodwin guidelines; and that there is on that account a proper opportunity for this Court to look for itself at the nature and proper effect of the assistance in question. 26 It is one thing to say that the primary sentencing Judge, had his Honour been aware of this material, ought to have taken it into account, and might well have come on that basis to an end result more favourable to the applicant than the result reached. It is an entirely different thing to say that it necessarily follows in such a case that this Court will, without more, interfere with what in fact happened in the Court below.

27 It is true that an offender, even a serious offender, who gives assistance to law enforcement authorities is entitled on that account to some proper consideration. One does not need to go beyond the provisions of section 23(1) of the Crimes (Sentencing Procedure) Act 1999 in order to find plain warrant for that proposition. But equally plain is the requirement in subs. (3) which is to this effect: "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."

28 There is, as well, the consideration arising under section 6 of the Criminal Appeal Act 1912 that this Court is required to dismiss an appeal unless it is itself satisfied that some other and more lenient sentence is "warranted in law". I reaffirm yet one more time my own respectful concurrence with the opinions expressed in that connection by Lee AJ in Astill No. 2 (1992) 64 A Crim R at 305.

29 Equally relevant for present purposes are the warnings given by the former Chief Justice of this Court in Gallagher (1991) 23 NSWLR 220. They are quoted in my own judgment in Fisk to which, this morning, submissions have specifically taken the Court. Fisk is an unreported judgment of the Court of Criminal Appeal delivered on 21 July 1998.

30 It is not necessary to quote at length what is there said; but it is, I think, timely to recall the emphasis given by the Chief Justice to the paramount need to maintain proper public confidence in the administration of criminal justice; and of the need to ensure that the resourceful forensic submissions upon sentence are not allowed to create a situation where the elegant splitting of fine hairs results in an overall sentence that responsible and properly informed members of the public, who are expected to obey the law, would find wholly repugnant to their sense of justice on the given facts.

31 It seems to me, therefore, that if one accepts the proper admissibility of the suggested fresh evidence, its proper consideration in the context with which this particular application is concerned does not justify any interference by this Court with the sentence imposed in the Court below. To tinker with that sentence would be an entirely inappropriate exercise of this Court's powers and discretions. To interfere in a significant and substantial way would entail a result which so far from maintaining public confidence in the administration of criminal justice, would have exactly the opposite effect.

32 For the whole of the foregoing reasons, and upon whichever of the two available bases the case is ultimately to be decided, I would myself be of the opinion that the application for leave to appeal should be granted; and that the substantive appeal should be dismissed. I propose orders accordingly. 33 MASON P: I agree.

34 DOWD JA: I also agree. 35 MASON P: The orders of the Court will be as indicated.

36 I return to the custody of the Registry the envelope which is to be re-sealed and I order it not be opened or inspected without approval of a Judge.

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