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Court of Criminal Appeal 3 April 2002

Regina v CDH

[2002] NSWCCA 103

Sexual offences
SENTENCE APPEAL

Citation: Regina v CDH [2002] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 3 April 2002
Judge(s): Levine J; Carruthers AJ

Background

The applicant, the natural father of the victim, pleaded guilty in the Local Court to multiple sexual offences against his daughter committed when she was aged four to five years. The offences included aggravated indecent assault, attempted sexual intercourse with a child under ten, and sexual intercourse with a child under ten. He was subsequently sentenced in the District Court at Gosford in February 2001.

Critically, the applicant had voluntarily presented himself to police and made full admissions in an ERISP (an electronically recorded interview). Prior to those admissions, the prosecution case was weak: the child had been interviewed by authorities and made no allegations, and any case would have relied substantially on hearsay statements from the child's mother.

The applicant sought an extension of time and leave to appeal his sentence on several grounds, including that the sentencing judge had failed to give sufficient weight to his voluntary confessions under the principle in R v Ellis, had not adequately considered his own history of childhood abuse as a mitigating factor, and had failed to make proper allowance for the hardship of serving his sentence in protective custody.

  • Whether the sentencing judge gave adequate weight to the applicant's voluntary admissions to police under the Ellis principle, given that those admissions effectively created the prosecution case
  • Whether the sentencing judge sufficiently took into account the applicant's own history of childhood sexual abuse as a mitigating factor
  • Whether the sentencing judge erred in finding special circumstances but then failing to reduce the non-parole period below the statutory ratio to reflect the hardship of serving the sentence on protection

Decision

On the Ellis ground, the Court of Criminal Appeal found that the sentencing judge had not adequately applied the principle. The Ellis principle, affirmed by the High Court in Ryan v The Queen, entitles an offender to "considerable" or "significant added" leniency where their confession effectively created the prosecution case. Here, without the applicant's admissions, there was no viable case against him, and the sentencing judge had not expressly acknowledged or applied that heightened leniency.

On the childhood abuse ground, the Court accepted that the sentencing judge was entitled, as a matter of discretion, to decline to treat the applicant's own history of sexual abuse as a meaningful mitigating factor in the context of his offending against his own child. That conclusion was within her Honour's discretion and was not overturned.

On the protective custody ground, the Court found that the sentencing judge had acknowledged the applicant would serve his sentence on protection but had not translated that acknowledgment into any reduction of the non-parole period. The Court considered this warranted some adjustment, though it limited the reduction to six months, taking into account the full protective custody term, rehabilitation efforts in custody, and the need for a meaningful parole period.

The Court allowed the appeal, reduced the head sentence on the principal count from six years to five years, and adjusted the non-parole period from four years and six months to three years and three months.

Orders Made

  • Leave to appeal granted (out of time)
  • Appeal allowed
  • Count 3 (sexual intercourse with a child under ten, s 66A): head sentence of five years from 9 February 2001, expiring 8 February 2006; non-parole period of three years and three months, expiring 8 May 2004 (incorporating the Form 1 matter)
  • Count 2 (attempted sexual intercourse with a child under ten, s 66B): two years from 9 February 2001 (confirmed)
  • Counts 1 and 4 (aggravated indecent assault, s 61M(1)): two years and six months each from 9 February 2001, expiring 8 August 2003
  • No separate non-parole periods fixed for counts 1, 2, and 4

Key Takeaways

  • The Ellis principle requires a sentencing court to apply "considerable" or "significant added" leniency where an offender's voluntary confession effectively created the prosecution case, not merely treat the confession as part of a standard guilty plea discount.
  • Where a child complainant makes no allegations during a formal police interview and the prosecution would otherwise have no viable case, the offender's voluntary admissions carry particular weight under Ellis.
  • A sentencing judge's finding that childhood abuse does not operate as a meaningful mitigating factor for a sexual offender who has committed similar offences against his own child falls within the proper exercise of sentencing discretion.
  • Acknowledging in reasons that an offender will serve a sentence on protection is not sufficient without translating that acknowledgment into a concrete adjustment, at least where special circumstances are in play.
  • In reducing sentences, the Court of Criminal Appeal confined the protective custody adjustment to six months, reflecting the limits of the principle rather than treating it as a substantial independent reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66A, 66B

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Ryan v The Queen [2001] HCA 21
- House v The King (1936) 35 CLR 499
- R v AB (CCA, 7 July 1997, unreported)
- R v AGR (CCA, 24 July 1998, unreported)
- R v Balfour (CCA, 31 July 1996, unreported)
- R v Davis [2001] NSWCCA 70
- R v Leon (CCA, 30 November 1994, unreported)
- R v McLear (NSWCCA, 1 September 1992)
- R v Mangoline (CCA, 17 August 1998, unreported)
- R v Simpson [2001] NSWCCA 534
- R v Wahabzadah [2001] NSWCCA (unreported)