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Court of Criminal Appeal 30 July 2002

REGINA v. HOLLIS

[2002] NSWCCA 306

Sexual offences
CRIMINAL LAW APPEAL PRINCIPLES IN REGINA V. PEARCE DISCOUNT FOR VOLUNTEERING CONFESSION REGINA V. ELLIS

Citation: Regina v Hollis [2002] NSWCCA 306
Court: Court of Criminal Appeal, New South Wales
Date: 30 July 2002
Judge(s): Sperling J; Greg James J

Background

The appellant was sentenced in the District Court in April 1999 following pleas of guilty to fourteen sexual offences against young children. The victims ranged in age from two to eleven years old, and the offending spanned from the mid-1970s through to 1996. The sentencing judge structured the sentences so that the dominant sentence, a minimum term of six years with an additional term of four years, related to the most serious offence: sexual intercourse with a two-year-old child.

All other sentences were made wholly concurrent. By the time of the appeal, every sentence except the one for the offence involving the two-year-old had been served. The appeal was therefore confined solely to that dominant sentence.

The appellant sought both an extension of time and leave to appeal, arguing the sentencing judge had erred in failing to apply a discount for his voluntary confession to police, and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to expressly apply an Ellis discount (a reduction in sentence for voluntarily confessing or assisting authorities) to the sentence for the most serious offence.
  • Whether the sentence for that offence was manifestly excessive, such that the Court of Criminal Appeal should intervene under s 6(3) of the Criminal Appeal Act 1912.
  • Whether the appeal, by isolating only the dominant sentence, proceeded on a sound basis given that the sentence was structured to reflect the totality of all offending.

Decision

Greg James J, delivering the primary judgment, found that the sentencing judge had given discounts on some charges but had not expressly articulated a discount on the dominant sentence for assisting police. However, the question was whether this constituted a reviewable error. The court examined whether there was a secure factual foundation for concluding the appellant had come forward and volunteered information independently, rather than in response to pressure or the actions of the victims' families. On the evidence available, including the wife's testimony, Greg James J was not satisfied that such a foundation existed.

Even if some Ellis discount had been warranted, the court noted that any such reduction is constrained by the requirement, reflected in both s 23(3) of the Crimes (Sentencing Procedure) Act 1999 and at common law, that any lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. Given the gravity of the offending, no error was established and no intervention was warranted.

Sperling J agreed with the dismissal but added a pointed observation. The appellant's argument effectively asked the court to assess the dominant sentence as though it were a sentence for a single offence, when in fact it was crafted to reflect the totality of all fourteen offences. The sentencing judge had not structured the sentences in accordance with Regina v Pearce, but that structural choice did not transform the dominant sentence into something it was not. Sperling J expressed doubt that leave to appeal was appropriate on the basis advanced, but agreed it was expedient to grant leave so the matter could be resolved on its merits.

Both judges concluded that, even accepting the appellant's framing, the sentence was not shown to warrant the court's intervention.

Orders Made

  • Extension of time granted.
  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An Ellis discount for volunteering a confession requires a secure factual foundation establishing that the offender genuinely came forward voluntarily; unsupported assertions or indirect evidence may be insufficient to compel such a discount.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999 and at common law, any sentence reduction for assistance or confession must not be unreasonably disproportionate to the nature and circumstances of the offence, a constraint that carries particular weight in cases involving serious sexual offending against children.
  • Where a sentencing judge structures sentences so that a dominant sentence reflects the totality of criminality across multiple offences, an appeal confined to that sentence alone may rest on a questionable premise, as Sperling J noted.
  • No error in failing to articulate a discrete Ellis discount was established where the overall sentencing approach addressed the totality of the offending and the factual basis for the discount was not made out.
  • In dismissing the appeal, the court confirmed that s 6(3) of the Criminal Appeal Act 1912 requires an appellant to demonstrate that a lesser sentence was warranted in law, not merely that a sentencing judge could have structured the discount differently.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61E, 61M, 66A, 66C, 66D, 76, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- The Queen v Ellis (1986) 6 NSWLR 603
- Regina v Pearce (1998) 194 CLR 610
- CDH [2002] NSWCCA 103
- Ryan [2001] HCA 21