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Court of Criminal Appeal 12 April 2000

Regina -v- Johnstone

[2000] NSWCCA 129

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE APPEAL

Citation: Regina v Johnstone [2000] NSWCCA 129
Court: New South Wales Court of Criminal Appeal
Date: 12 April 2000
Judge(s): Dowd J; Hulme J

Background

The applicant pleaded guilty before Coleman DCJ in the Newcastle District Court to three counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 20 years' penal servitude. The robberies, committed over three consecutive days in January 1999, each involved the applicant threatening victims with a blood-filled syringe and stealing cash from retail premises.

Upon his arrest in connection with the third offence, the applicant voluntarily confessed to all three robberies, including the first two, which police had not yet connected to him. The sentencing judge imposed accumulative sentences across the three counts, structured in accordance with the principles in R v Pearce (1998) 72 ALJR 1416.

The applicant sought leave to appeal on the ground that the sentencing judge failed to give sufficient credit for his voluntary disclosure of the first two offences and that this error also diminished the weight given to his guilty pleas.

  • Whether the sentencing judge failed to apply the principles in R v Ellis (1986) 6 NSWLR 603, which require a meaningful sentencing discount where an offender voluntarily discloses offending that might not otherwise have been detected or proven.
  • Whether that failure also had the effect of insufficiently crediting the guilty pleas on the first two counts.
  • Whether, and to what extent, the Court of Criminal Appeal should intervene and re-sentence on any or all of the three counts.

Decision

The Court found that the sentencing judge erred by failing to apply the Ellis principle to the first and second offences. Upon his arrest for the third robbery, the applicant volunteered information about the first two offences. Although the Crown submitted that detection may have been likely given a similar modus operandi in the same area, the Court held that this possibility did not eliminate the significance of the confession. The failure to specifically apply Ellis amounted to a manifest error in the sentences imposed on counts one and two.

The Court noted that the third offence was not affected by this error. Because the applicant was arrested in connection with the third robbery and did not confess to it in the same voluntary manner, the Ellis principle did not apply to that count. The sentencing judge's approach to the third count was therefore left undisturbed.

The Court accepted that the structure of accumulative sentencing under the Pearce principle made the error on counts one and two a distinct issue from the overall sentence. Even accounting for totality, the starting points on the first and second sentences were set too high through the failure to credit the voluntary disclosure. The sentences on those two counts were quashed and substituted with reduced terms.

Orders Made

  • Leave to appeal granted.
  • Sentences imposed on the first and second counts quashed.
  • First count: imprisonment for a total term of four and a half years, comprising a non-parole period of three years, both commencing 24 January 1999.
  • Second count: imprisonment for a total term of five and a half years, comprising a non-parole period of three and a half years, both commencing 24 January 1999.
  • Sentence on the third count: undisturbed and to remain as originally imposed.

Key Takeaways

  • The Ellis principle requires sentencing courts to extend a meaningful additional discount where an offender voluntarily discloses offending that was not otherwise known to, or readily provable by, police. The degree of discount varies with the likelihood of independent detection.
  • A sentencing court's failure to specifically advert to and apply the Ellis principle, even where the plea of guilty and cooperation are generally acknowledged, can constitute a reviewable error on appeal.
  • Where accumulative sentences are structured under the Pearce principle, an Ellis error affecting some counts does not necessarily infect the sentence on counts where the principle has no application.
  • The possibility that an offender might have been detected through circumstantial evidence does not, of itself, extinguish the entitlement to credit for a voluntary confession: it only affects the degree of leniency warranted.
  • The Court of Criminal Appeal confirmed its power to intervene on discrete counts within an accumulative sentence structure, leaving unaffected counts undisturbed where no error was established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon) and s 439 (credit for guilty plea)
- Crime (Sentencing Procedure) Act 1999 (NSW) (referred to in re-sentencing)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Pearce (1998) 72 ALJR 1416