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[2012] NSWCCA 280
Court of Criminal Appeal (NSW)
2012-10-30
Basten JA, Adams J, Hulme J
Original judgment source is linked above.
-07-29 00:00:00 Before: English DCJ File Number(s): 2010/20313
Judgment 1BASTEN JA: The Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to impose a lesser penalty than it otherwise would, where the offender has assisted law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, "the offence concerned or any other offence": s 23(1). The applicant was charged with and entered pleas of guilty to two offences of sexual assault on a child. An overall sentence of 10 years imprisonment was imposed, with a minimum term of mandatory custody of six years and six months. The applicant has appealed on the basis that the sentencing judge (English DCJ) declined to reduce the sentence for assistance provided to the authorities. 2The circumstances of the offending and the assistance provided have been detailed by R A Hulme J and need not be repeated. It is sufficient to note that after commencing to offend, but before being charged, the applicant disclosed to police details of the child abuse to which he had been subjected by his grandfather. Because the applicant was a victim in respect of those offences, and not a co-offender, the sentencing judge held that "the rationale of the section" did not extend to his circumstances. In my view, that conclusion was in error and a discount should have been allowed. 3The applicant made a statement to police in respect of his grandfather's offending on 23 June 2009, some three months after his daughter first complained of his conduct and about seven months after his own offending commenced. He told a psychologist that he was motivated to go the police "because he suspected his grandfather might be preying on one of his twin brother's sons": Report, 19 July 2011, Dr Mark Milic, p 3. If that statement were accepted, it may be incorrect to identify the applicant purely as a victim in relation to his grandfather's offences. The sentencing judge appears to have accepted the motivation, but noted that no prosecution was brought in respect of any offences against his brother or his nephew: Judgment, p 6. 4The Director of Public Prosecutions accepted that the sentencing judge was in error in concluding that the power did not extend to this case, but submitted that no error was revealed in declining to reduce the sentence. 5Precisely how the sentencing judge viewed the matter is a little unclear. Whether she held that the power was not engaged with respect to a person whose only role was as a victim, or whether, although engaged, the power should not be exercised in such a case, absent some additional circumstance, is of limited relevance. Although the power is expressed in language wide enough to include any form of assistance, whatever the role of the provider, a purposive approach to statutory construction could conceivably limit its operation. 6The real question in the present case is whether a victim is not to obtain a reduction and, perhaps, whether an independent witness would be in the same position. In addressing that question, issues were raised as to the possible operation of the section in respect of assistance which was provided before the charges were laid with respect to the sentence sought to be reduced and possibly before the commission of those offences. However, it is not necessary to decide the full scope of the provision for present purposes. The purposive approach adopted below does not deal with the question of independent witnesses, nor with assistance provided before the offences the subject of the sentencing were committed. There is no reason to suppose that the answers to those questions would materially affect the construction of the section in relation to victims of crime. 7The approach adopted by the sentencing judge and supported by the Director on appeal, is that the primary purpose of the section is to encourage reporting and other assistance with respect to prevention and detection of crime by those involved in criminal activities or who derive information from the criminal milieu in which they operate. Underlying that conception is an assumption that there is an obstacle to reporting such crime, which, in the public interest, should be reduced by the grant of an incentive. It is, of course, an incentive only available to those who themselves commit crime, but to that extent it may be effective. 8Where the offender has knowledge of others involved in the same criminal activity, particularly serious crime, or where the criminal activities of which the person learns, whether in prison or otherwise from contacts in the relevant subculture, the proffered reduction in sentence is designed to overcome the fear of retribution or other harm which provides a strong disincentive to the reporting of crime. Without access to inside information, those responsible for organised crime and other serious forms of crime would be harder to identify. 9There are other situations which involve disincentives to revealing criminality. Reporting of sexual abuse is notoriously rare: even victims require encouragement, for a range of reasons which need not be explored here. There is a public interest in increasing the level of reporting of sexual abuse. No doubt an incentive that applies only to those charged with other crimes will have a limited effect, but that is true of assistance to law enforcement authorities in cases which are squarely within the accepted scope of s 23. Neither the limited scope of the incentive, nor the fact that the reporter was indeed the victim, destroy the public interest in encouraging the provision of assistance in such circumstances. 10There was little consideration given in argument to the value of a discount in a case such as the present, which is thought not to fall within the primary field of operation of s 23. This factor warrants a more limited discount than might otherwise be applied. There is also the need not to reduce the sentence to one unreasonably disproportionate to the offending: s 23(3). In the circumstances, a discount of 10% is appropriate. That should apply to each of the offences, but in a way which would maintain the degree of accumulation and the proportion between the minimum custodial period and the aggregate sentence period. 11Questions as to the availability of a discount, and as to its level if available, in circumstances where the assistance was provided before both the discovery and commission of the offences for which the beneficiary of the discount is being sentenced, should await a case in which they squarely arise. In the present case there should be a grant of leave to appeal, the sentences below should be quashed and the applicant should be resentenced so as to achieve a period of nine years imprisonment with a minimum custodial term of five years and 10 months. 12The Court should make the following orders: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentences imposed in the District Court on 29 July 2011. (4) Sentence the applicant: (a) On count 1, to imprisonment comprising a non-parole period of 4 years to date from 15 April 2011 with a balance of the term of the sentence of 2 years 3 months. The non-parole period expires on 14 April 2015. The total term of the sentence expires on 14 July 2017. (b) On count 2, to imprisonment comprising a non-parole period of 4 years 10 months to date from 15 April 2012 with a balance of the term of the sentence of 3 years 2 months. The non-parole period expires on 14 February 2017 when the offender will become eligible for release on parole. The total term of the sentence is to expire on 14 April 2020. 13ADAMS J: I agree with Basten JA. 14R A HULME J: This is an application for leave to appeal against sentences imposed for two child sexual assault offences committed against the applicant's seven year old daughter. Nothing may be published that would lead to the identification of the complainant: s 578A of the Crimes Act 1900 (NSW). 15The sentences were imposed in the District Court by her Honour Judge English on 29 July 2011. 16The applicant was sentenced for two offences. Count 1 was an offence of having sexual intercourse with a person under the age of 10 for which s 66A of the Crimes Act 1900 (NSW) prescribes a maximum penalty of imprisonment for 25 years. A standard non-parole period of 15 years applies. Her Honour imposed a sentence of 7 years with a non-parole period of 4 years 6 months commencing on 15 April 2011. 17Count 2 was an offence of aggravated sexual intercourse with a person under the age of 10 for which s 66A(2) prescribes a maximum penalty of imprisonment for life. A standard non-parole period of 15 years also applies. The circumstance of aggravation was that the victim was under the applicant's authority. Her Honour was asked to take into account his guilt in respect of two further offences listed on a Form 1 document: committing an act of indecency towards a person under 10 (s 61O(2)) and aggravated indecent assault (s 61M(2)). She did so and imposed a sentence of 9 years with a non-parole period of 5 years 6 months commencing on 15 April 2012. 18The overall sentence was one of 10 years with a non-parole component of 6 years 6 months. 19The applicant seeks to rely upon a single ground of appeal: The judge failed, or failed properly, to exercise the discretion to discount the sentences on account of the applicant's assistance to authorities.
Facts 20The applicant separated from his wife in 2005. They had two children, a daughter, HT, who was born in 2001 and a son, LT, who was born in 2004. There was an arrangement whereby the children would stay at the applicant's home every second weekend. On an occasion during one of these weekends at the end of 2008, just after HT had turned seven, the applicant asked her to come into his bedroom. There he pulled her pants down, rubbed his hand over her vaginal area before removing the lower part of his own clothing and holding his penis (Form 1 offence: commit act of indecency towards a person aged under 10). He then rubbed his penis around her upper legs and vagina before committing an act of cunnilingus upon her (Count 1). At the conclusion of the incident he told her not to tell anyone and that it was their "pinky secret". 21On another weekend in January or February 2009 the applicant went to the complainant's home in order to look after her and her brother. During some play activity he told LT to go and play outside and then took HT to her bedroom. There he pulled her underpants down and rubbed his hand on her vagina (Form 1 offence: aggravated indecent assault). He then removed his own pants and underpants, laid next to her and rubbed his penis on her legs and around her vaginal area. He then committed an act of cunnilingus upon her (Count 2). 22The statement of agreed facts includes that "[t]hese counts are representative of wider number of similar acts which were committed upon the complainant". 23HT disclosed the offences to her grandmother in March 2009. The applicant was interviewed by police in September 2009 and January 2010. During the first interview he said he had only touched the complainant's vagina when applying cream given to him by her grandmother. He also told police he had been sexually assaulted when he was a child and he feared that HT may have been assaulted so he asked her if "she had given head jobs". He said he made a "pinky promise" with her but it was to keep this question a secret from her mother. In the second interview he said HT had given him a "French kiss" and this added to his concern that she had been sexually abused by someone else. He was charged on 22 January 2010. He pleaded guilty on 7 March 2011, a few days before his trial was scheduled to commence. 24A victim impact statement was before the sentencing judge. For something written by a nine year old it is extraordinarily eloquent in describing the hurt and betrayal of trust that she had suffered and the ongoing psychological harm the applicant's offences had caused. It was submitted that the statement exhibited "language that seems somewhat sophisticated for a nine year old child", but the judge found that she had no reason to doubt its authenticity. Her Honour's conclusions included that the applicant had "destroyed her innocence and her childhood". 25The judge described the offences as "simply heinous" and took into account that the charged offences were not isolated incidents. However, she also concluded that they were not in the worst category; rather, they were "towards the lower end of the scale".
Subjective features 26Given the limited scope of the ground of appeal it is only necessary to briefly note the findings made by the learned sentencing judge concerning matters subjective to the applicant. 27The most significant matter was her Honour's acceptance of the evidence that the applicant had been sexually abused as a child. In the period between the complainant disclosing his offences, and the police interviewing him about them he had made a statement setting out offences committed against him by his grandfather from when he was aged 7. His grandfather was subsequently charged, pleaded guilty and, at the age of 80, sentenced to a significant period of imprisonment. 28The applicant was 38 years old when he stood for sentence. He had experienced what was described as an extremely dysfunctional upbringing, even leaving aside the sexual abuse. His schooling was adversely affected, although he had not resorted to alcohol or drugs. He had been in employment for the past 11 years and was well regarded by his employer. 29Her Honour said the applicant was at a loss to explain his offending behaviour. He had attended counselling funded by the victims compensation scheme. He wished to participate in an intensive counselling and treatment program to free himself from his past and start a new life. A psychological report included an opinion that individuals with the applicant's background of victimisation were more likely to become sexual abuse predators. As to this her Honour said: It is a matter which the offender is entitled to have taken into account in [mitigation] as reducing his moral culpability, as the causal link has been established and I have done so. 30Her Honour also referred to the psychologist's opinion that the applicant had significantly enhanced prospects for rehabilitation because of the disclosure of his own abuse, his acceptance of guilt of the offences committed against his daughter and his willingness to participate in an appropriate treatment program. She subsequently said that she was satisfied that he had "enhanced prospects of rehabilitation" and that if he accepted treatment and adhered to regimes put in place it would lessen the risk of re-offending. 31Other findings included that there should be a 10 per cent reduction of sentence on account of the utilitarian value of the applicant's pleas of guilty, he was "truly remorseful and contrite", and he was a person of otherwise good character. 32Her Honour found special circumstances (s 44 Crimes (Sentencing Procedure) Act 1999 (NSW)) on the basis of "a need for a lengthy period of post release supervision to ensure attendance at a sex offender's treatment program and to ensure compliance with the other requirements which would be put in place upon his release from custody and he will be registered as a sex offender".
Ground of appeal (failure to reduce sentence on account of assistance to authorities) 33The applicant disclosed to police the abuse by his grandfather and made a lengthy statement setting out the detail of it. He was also actively involved in the subsequent police investigation by wearing a listening device and engaging his grandfather in incriminating conversations for some five hours. The applicant suspected that the grandfather may have abused other family members (but there is no evidence that this in fact occurred). Counsel then appearing for the applicant submitted that there was "personal detriment" to the applicant in that he had to spend time in conversation with the man who had "abused him so badly". 34It was submitted that all of this amounted to assistance to authorities which should have led to a reduction of sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act. 35The representative for the Crown in the court below did not dispute any of this and confirmed to her Honour that the grandfather had subsequently pleaded guilty and had been sentenced to a significant term of imprisonment. 36There was a dispute, however, as to whether s 23 applied. Her Honour concluded that it did not, on the basis that the applicant's assistance had been provided to the authorities as a victim of crime. She said: The offender seeks an additional discount for disclosures made to police about the crimes perpetrated upon him by his grandfather and perhaps upon his brother or his nephews. Pursuant to s 23 of the Crimes (Sentencing Procedure) Act, the rationale of that section is to encourage offenders to supply information to authorities which will assist the authorities in bringing other offenders to justice and to give evidence against those other offenders in relation to the information given. It is submitted on behalf of this offender that by agreeing to wear a wire tap and to enable conversations to be recorded, that he has facilitated the course of justice. With respect, he is the victim. It is not unheard of in cases of sexual assault, for a complainant to participate in recorded conversations, in order that evidence be gathered in support of a prosecution. This offender was not a co-offender. He was, as I have said, a victim. There is no evidence before me to establish that the information he gave to police resulted in a prosecution of his grandfather in respect of his brother or nephew. No authority has been provided to me in support of the submission made on his behalf for a discount. Discounts for assistance apply principally in two circumstances. The first, where an offender, following his arrest, reveals the full extent of criminal activity in which he was involved and identified others who were involved in the same crime or related criminal activity. The second occasion is where the offender is a police informer, giving information about crimes in which he was not involved directly but had knowledge about, because of his mixing within the criminal milieu. That is certainly not the situation here. I am not persuaded that the rationale of the section is such that it extends to victims, to entitle them to a discount in respect of crimes that they have not committed. (emphasis added) 37Section 23 of the Crimes (Sentencing Procedure) Act was amended by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW). The amendments took effect on 14 March 2011 but they applied to the sentencing of the applicant notwithstanding his offences preceded their enactment (Pt 21 of Sch 2 of the Act). Section 23 provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. 38Two observations can be made about the terms of the section. First, construed literally, the "assistance" with which the section is concerned is only limited by the terms of s 23(1). It must be assistance to "law enforcement authorities" and must be "in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence". Secondly, if there has been assistance of that type, the court is not required to impose a lesser penalty, but "may" do so. 39Leaving aside everything other than the terms of the section itself, it could be construed as providing a power to reduce a sentence on account of any assistance to law enforcement authorities that an offender has provided in the past or has undertaken to provide in the future. It does not matter whether the assistance relates to the offence for which the offender stands to be sentenced or not. There is nothing in the terms of the section that excludes assistance given in relation to offences in respect of which the offender is a victim. 40If the reach of the section is as broad as this, as the applicant contends, it would be open to a court to consider reducing the sentence to be imposed upon anyone who has ever assisted police with the prevention, detection or investigation of any crime, or in proceedings relating a crime. The only limit to the discretion to reduce a sentence would be that the court must consider the matters in s 23(2). Thus, anyone who has ever reported a crime to the police would be entitled to ask a court to consider reducing their sentence if they were ever subsequently convicted of a crime themselves. For example, the victim of a home burglary could ask to be taken into account that he or she had reported a crime to police. Such a person could also ask to be taken into account things done to assist the investigation, perhaps permitting police to enter their home for a forensic examination; or attending a police station to make a statement, and to peruse photographs or an identification parade of possible offenders; or attending court to give evidence. 41Counsel submitted at the hearing of the application that even if the assistance was given a long time prior to the sentencing exercise, even 20 years earlier, the offender would still be entitled to ask for his or her assistance to be taken into account, although he conceded that the discretion would not necessarily be exercised in such a case. 42This submission is certainly novel. Counsel were unable to identify any previous example of an offender asking for a reduction of his or her sentence on account of assistance provided as a victim of crime. That does not necessarily mean that it cannot be accepted. But it does indicate that the submission requires close scrutiny. It also requires consideration of the effect of accepting the submission. It would involve extending the principle that those who assist authorities should generally receive a reduction of their sentence to situations such as I have described in the previous paragraphs which, on the face of it, appears absurd. 43Section 23, and its predecessor s 442B of the Crimes Act, are restatements of the common law principles concerning discounts granted for providing assistance to authorities: Raad v R [2011] NSWCCA 138 at [23], per Adams J; R v Downey (1997) 97 A Crim R 41 at 47, per Hidden J. In Downey there was reference to R v Davies (NSWCCA, 1 December 1995, unreported) where Sully J observed that an additional purpose of s 442B was to add the constraint that a court must not reduce a sentence to the point that it becomes unreasonably disproportionate to the nature and circumstances of the offence. That same constraint now appears in s 23(3). 44Given that the common law principles were based upon public policy considerations, it is useful to examine their genesis and rationale. 45The first reported case in this State to consider the relevance on sentence of an offender's assistance to authorities was R v Perez-Vargas (1986) 8 NSWLR 559. Street CJ drew upon the judgment of Wells J in R v Golding (1980) 24 SASR 161, particularly in view of its extensive reference to English authorities on the subject. One of those cases was R v James and Sharman (1913) 9 Cr App R 142 in which Darling J said of an offender: "... [H]e betrayed the thieves; it is expedient that they should not be persuaded to trust one another, that there should not be honour among thieves. He is now rewarded for informing against his accomplices ..." 46Another English authority referred to by Wells J was R v Lowe (1977) 66 Cr App R 122 where Roskill LJ said (at 125): "It must therefore be in the public interest that persons who have become involved in gang activities of this kind should be encouraged to give information to the police in order that others may be brought to justice and that, when such information is given and can be acted upon and, as here, has already been in part successfully acted upon ... substantial credit should be given ... Unless credit is given in such cases there is no encouragement for others to come forward and give information of invaluable assistance to society and the police which enables these criminals ... to be brought to book." 47Street CJ in R v Perez-Vargas also referred (at 562-563) to three English cases for the proposition that a reduction of sentence should also be allowed on the basis that the person who has provided significant assistance will be held in protective custody. 48Finally, Street CJ (at 564) approved of the following from the judgment of Wells J in R v Golding (at 172-173): "Courts are opposed to the precept that there should be honour among thieves and, all other considerations apart, sentences and published reasons for them should be so adjusted as to further that opposition ... Where a prisoner is shown to have been an informer (whether in the matter in which he had been convicted or some associated matter or matters, or in some matter or matters that has or have no direct relation to the offence for which he has been convicted), the court, other considerations apart, will be disposed to show leniency to mark the good he has done and in furtherance of the policy ... above." 49In R v Cartwright (1989) 17 NSWLR 243, Hunt and Badgery-Parker JJ (at 250) cited R v Golding and R v Perez-Vargas as authority for the proposition that a substantial discount must be given (and be seen to be given) in order to encourage other offenders to give useful information to the authorities as well as to compensate for harsher custodial conditions they would experience as a consequence. They also cited R v Sinfield (1981) 3 Cr App R (S) 258 at 260 where it was said that the discount given in return for assistance was in the public interest, because it stimulates others to give information so that more criminals will be caught and punished. 50After referring to a number of other cases in a similar vein, their Honours summarised (at 252) a number of the principles which emerged. These included that: + It is in the public interest that offenders be encouraged to supply information to the authorities which will assist them being brought to justice and to give evidence against them. + To ensure that such encouragement is given, there should be a reward no matter what the offender's motive may have been. What is to be encouraged is a full and frank co-operation. 51In R v Many (1990) 51 A Crim R 54 there was reference (at 66-67) to two types of assistance that the courts have encountered. The first and most commonly encountered kind of case was where the offender, following arrest, revealed the full extent of the criminal activity in which he was involved and the identities of co-offenders in that activity, or related activity, so as to enable their arrest and prosecution. 52The second and less commonly encountered kind of case was where a person had on one or more occasions prior to his arrest acted as an informer by providing information about criminal activity in which he was not himself directly involved, but of which he had knowledge by reason of his moving within the criminal milieu. This was described as conduct which never carried any connotation of contrition, but would appear to be conduct undertaken in the hope of "a quid pro quo", namely "a good word put in for the prisoner on any occasion when he himself might come before a court". 53R v Many itself, however, was characterised as not being of either kind of cases. The applicant had provided assistance in relation to crimes totally unrelated to those for which he was to be sentenced. He had no involvement in those crimes. His information did not come to him from involvement in the criminal milieu. The assistance did not pre-date his arrest. It was observed (at 67-68): The law imposes on every citizen the duty to report to the police any information which he has as to the commission of a felony - as to the fact of its commission and as to the perpetrators. The law does not, however, impose a similar obligation of provision of information about a crime in contemplation. It is, nevertheless, clearly in the public interest that persons aware of the plans of others to commit serious crime should bring that information to the notice of the authorities so that the crime may be prevented and its intended victims saved, and so that if the intending perpetrators have committed the offence of conspiracy, they may be apprehended and dealt with. If the provision of the information does not enable the offence to be prevented, it may yet be of considerable value in securing the conviction of the perpetrator. It seems clear that there is a public interest in every respect similar to that discussed in Cartwright and Golding, which dictates that a person who acts as this appellant has done should be rewarded by an appropriate discount of his sentence in order that others may be encouraged to do likewise. To secure such encouragement, the discount should be substantial even though it may lead in the particular case to a sentencing outcome which might otherwise be thought inadequate. 54In R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ, after reference to R v Perez-Vargas and R v Cartwright, said (at 227) that there will usually be a number of grounds upon which an offender may be entitled to have assistance to authorities taken into account, at least some of which may overlap with other subjective considerations. There is the utilitarian consideration of encouraging persons to provide information which would permit the apprehension and successful prosecution of other offenders. There is the remorse and contrition which may be demonstrated by the co-operation with authorities. There is also the more onerous custodial conditions which would be experienced as a result of having co-operated. 55It was acknowledged that the latter two of those matters may be very difficult to separate from other considerations which might arise quite apart from the matter of assistance. Gleeson CJ continued (at 228B): "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical". 56There has been nothing said, to my knowledge, in subsequent cases to deny the rationale described in the cases above for providing benefits on sentence to those who assist authorities. The only significant modification has been the circumspection which is now adopted when factoring into the discretionary exercise the onerous conditions in which a person who has provided assistance would serve their sentence. It was previously assumed to be the case, but in more recent times that assumption has been shown to be dubious and any onerous conditions should be established as a matter of fact: see, for example, R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [4], per Howie J; FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 at [21], per Rothman J; and Isaac v R [2012] NSWCCA 195 at [46]-[47], per Garling J. Legislative history 57The forerunner of s 23 was s 442B of the Crimes Act which was enacted by the Criminal Legislation Amendment Act 1992 (NSW). The second reading speech of the Attorney General, the Hon Peter Collins MP, did not explain the reasons for the introduction of the amendment; it had previously been sought to make the amendment in the Crimes (Amendment) Bill 1991 which failed to complete its passage through Parliament because the Bill lapsed when Parliament was prorogued prior to an election. The Attorney General implicitly adopted the reasoning provided by the previous Attorney General, the Hon John Dowd MP, in relation to the lapsed Bill: New South Wales Legislative Assembly, Second Reading, Crimes Amendment Bill (Hansard) 18 April 1991 at 2519. 58Mr Dowd explained that the amendment was "to give guidance to courts when sentencing those who have assisted law enforcement authorities". He referred to "great community concern" since the decision in R v Many about the extent of the discount given to those who assist authorities. He added (at 2520), however, that R v Many said nothing new in terms of principle: It is a well-established principle of sentencing that those who provide assistance to the authorities should be given a discount on the sentence which the court would otherwise impose. The reason for this is to encourage the provision of inside information which leads to the conviction of many criminals. 59Part of the "guidance to courts" was the requirement that consideration be given to certain specified matters before deciding whether to reduce a sentence, and the extent of any reduction. These included whether the offence for which the offender is being sentenced is related to the offence about which information is given. The latter, it was said, was because of an expectation that an offender who is being sentenced for an offence which is unrelated to the offence about which assistance is given will receive a smaller reduction. Why that was so was not explained. Particular emphasis was given to the new provision that a sentence should not be reduced to the extent that it becomes unreasonably disproportionate to the nature and circumstances of the offence. That provision is replicated in the present s 23(3). 60Section 442B was repealed and replaced by s 23 of the Crimes (Sentencing Procedure) Act in 1999. The new s 23 was, in substance, in the same terms as the former s 442B. 61The amendments to s 23 brought about by the Crimes (Sentencing Procedure) Amendment Act in 2010 are not of present relevance. Paragraphs (a) and (j) were deleted from s 23(2) and s 23(4)-(6) were inserted. Nothing was said in the relevant second reading speech which has any bearing on the present issue. Submissions 62It was contended in written submissions for the applicant that the terms of s 23 are not inconsistent with allowing a discount for assistance to authorities in the case where an offender is the victim of the offence in respect of which assistance is provided. 63It was submitted that the utilitarian considerations underlying discounts for assistance recognised at common law are equally pertinent to circumstances where the offender is the victim of the offence in respect of which assistance is provided. Society benefits from assistance with respect to the investigation and prosecution of crimes, even when the person providing the assistance is the victim. 64It was acknowledged that the fact that the offender is the victim of the offence must be taken into account in the exercise of the discretion pursuant to s 23(2)(d), (f) and (i). However, it was submitted that this was not a circumstance that precluded the exercise of the discretion. 65For the Crown, it was conceded that s 23 did have application and that her Honour's discretion miscarried in that she did not proceed to consider the matters in s 23(2) and determine whether any reduction of sentence should be allowed. However, it was also submitted that whilst the matter should have been considered, there was no error in not granting a reduction to the applicant in the present case. It was submitted, "[The] error was in the process... rather than the conclusion." Her Honour had already accounted for the assistance the applicant had provided to authorities, and the effect of his grandfather's abuse, in relation to other factors that had led her to impose a lesser sentence. No further reduction of sentence pursuant to s 23 was warranted. 66At the hearing of the application, counsel for the applicant took the Court to the various paragraphs of s 23(2). The relevance of matters in (b) and (c) (significance, usefulness, truthfulness, completeness and reliability) is readily apparent having regard to the fact that the grandfather pleaded guilty to the offences which were based upon the applicant's disclosures to police. 67The nature and extent of the assistance (s 23(2)(d)) was of three types: disclosure, assistance in the investigation, and an implicit undertaking to give evidence if required. 68Timeliness of the assistance (s 23(2)(e)) must, in my view, relate to the time between the offences the subject of the assistance and when the offender provided the assistance. That is consistent with the requirement to consider the usefulness of the assistance. I do not accept the submission of counsel for the applicant that "there is no reason to think it was belated" (30.10.12 at T4.29); the assistance came 20 years or so after the offences had been committed. I acknowledge that often in cases of child sexual assault offences there are, of course, good reasons why there is a delay in complaint. 69The question of benefits the applicant gained because of his assistance (s 23(2)(f)) was a matter of some controversy. I simply record that if this is a relevant consideration, it is important to consider any benefit derived from the fact of assistance and not otherwise. The Crown cited as one example that the applicant had gained some insight into his own offending. That was a product of counselling, not of having provided assistance. 70The other paragraphs in s 23(2) did not appear to have any significance. Determination 71Notwithstanding the seemingly broad scope of s 23, its provisions have been found not to operate in two respects. 72In R v Calderoni [2000] NSWCCA 511, they were held not to apply to unwitting assistance. In that case the offender gave evidence in his trial for murder that inculpated him in respect of a charge of robbery in company. He was acquitted of the murder and subsequently prosecuted, and sentenced, for the robbery. The sentencing judge was held to have erred by allowing a reduction of sentence pursuant to s 23 in its then form (which was not materially different for present purposes to its current incarnation). Sully J, with whom Bell and Whealy JJ agreed, gave as an example a burglar unwittingly leaving behind at the crime scene a set of fingerprints and later claiming an entitlement to a reduction of sentence for assistance. His Honour said: [13] It is trite that a statute is not to be construed in a fashion that imputes to the Legislature an intention to bring about so transparently absurd a result. 73In R v Fernando [2004] NSWCCA 147 the applicant had provided assistance in relation to the investigation of his own offence. He had voluntarily supplied police with a DNA sample which ultimately assisted police in identifying him as the offender. A ground of appeal asserted that the sentencing judge "erred in failing to give an appropriate allowance for the applicant's assistance to authorities by way of the supply of a DNA sample". It was noted (at [42]) that the judge had acknowledged the applicant's co-operation and said that she took it into account. There was no error in her failure to elaborate or quantify a discount. Kirby J (with the concurrence of Tobias JA and Bell J) additionally observed: [41] ... Where an offender unwittingly assists the police, whether by making statements which he does not recognise as incriminating, or providing a sample of his handwriting or DNA, not fully appreciating its evidentiary significance, it is difficult to see why any discount is justified unless it can be seen as evidence of contrition. 74I am not prepared to accept the general proposition inherent in the applicant's submissions that reporting a crime will always amount to assistance to authorities for the purposes of s 23. Such a proposition is inconsistent with the rationale that underlies the section as identified above at [43] to [56] above. I am prepared to accept that there may be a case in which a victim who reports the crime committed against him or herself could be entitled to consideration of a reduction in sentence pursuant to the section, but it would be a most unusual case with the most exceptional circumstances. It would have to be a case in which there was a public policy to be served that is consistent with the policy underlying the common law principle and adopted by the legislature. Such policy is considerably more specific than the general proposition that society benefits when crimes (including sex crimes) are reported to police and offenders are successfully prosecuted. 75Acceptance of the applicant's general proposition would lead to absurd results. The victim of the home burglary I referred to earlier is but one example. And the applicant's general proposition would not be limited to victims of crime; it would also apply to witnesses. Any person who has ever witnessed a crime and has disclosed to police what they saw would be entitled to call in aid s 23 if ever they were convicted of an offence themselves. The witness may well have provided information which was significant and useful (s 23(2)(b)), truthful, complete and reliable (s 23(2)(c)) and timely (s 23(2)(e)). The assistance may take the form of not only informing the police of the crime, but co-operating by making a statement and attending court to give evidence (s 23(2)(d)). And the person would usually receive no benefit (s 23(2)(f)). 76This is not to say that the offences committed against the applicant by his grandfather were not a relevant consideration in the present case; it was a matter of considerable significance. 77The sentencing judge accepted the that the applicant was a victim of "what can only be described as horrendous sexual abuse at the hands of his grandfather, from a very young age, up until his early adulthood". She referred to him having attended counselling through the victims compensation scheme and his wish to participate in intensive counselling treatment programs "to free himself from his past and to start a new life". She accepted the psychologist's opinion that "individuals with this offender's background of victimisation are more likely to become sexual abuse predators". This led her Honour to find that there was a causal link between the past abuse and applicant's own offending behaviour, thereby reducing his moral culpability. Another matter she accepted from the psychologist's report was that he had "significantly enhanced prospects for rehabilitation", in part due to disclosure of his own abuse history. 78The applicant did not give evidence. Ordinarily in that situation a sentencing judge should approach the history set out in psychological reports and the like with some circumspection: see, for example, R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; and Ballard v R [2011] NSWCCA 193 at [18]-[21]. In this case, the most significant subjective feature was the applicant's history of having been abused as a child. But because he had reported it to police and assisted the police in their successful investigation, the judge was not required to assess the credibility of the claim and the applicant was not exposed to the risk that she might not accept it. Her Honour accepted his claim without question and took it into account in a variety of ways. 79The applicant received a sentence which was less than it otherwise would have been and the degree to which this was so must have been significant. 80Her Honour found that his own offences were "simply heinous". It was an element of each offence that the victim was under the age of 10. In this case, the applicant's daughter was barely 7. It was an agreed fact that the offences were not isolated incidents but representative of a wider number of similar acts. Her Honour regarded the maximum penalties provided of imprisonment for 25 years and for life as an indication of the "abhorrence and concern" with which the legislature regarded such offences. She remarked that general deterrence was "of the utmost importance". She found that the applicant had "destroyed [the complainant's] innocence and her childhood", and took into account that "she is suffering from hurt and anger and anxiety" and that she was "at a very young age, full of self-loathing". 81Despite these matters, the sentences imposed in comparison to the maximum penalties available were relatively modest. Undoubtedly that was because of matters relating to the applicant's own history of abuse, particularly her Honour's finding of reduced moral culpability. Even if, contrary to the view I have formed, it was open to her Honour to consider reducing the sentence on account of the applicant's assistance to authorities, the discretion to do so should not have been exercised.
Orders 82I propose the following orders:
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: 14 December 2012
RJT
R
(1991) 23 NSWLR 220
(1980) 24 SASR 161
(1986) 8 NSWLR 559
(1989) 17 NSWLR 243