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Court of Criminal Appeal 14 August 2003

REGINA v 'GLB'

[2003] NSWCCA 210

Sexual offences
CRIMINAL LAW SENTENCE APPEAL VOLUNTARY DISCLOSURE SPECIAL CIRCUMSTANCES GUILTY PLEA UTILITARIAN VALUE

Citation: REGINA v 'GLB' [2003] NSWCCA 210
Court: Court of Criminal Appeal, New South Wales
Date: 14 August 2003
Judges: Sheller JA, James J, O'Keefe J

Background

The applicant pleaded guilty in the District Court to three charges of sexual intercourse with a child under ten years of age and one charge of indecent assault on a child under ten years of age. The victim was his own daughter. All offences occurred on 12 or 13 October 2000 while he had temporary custody of the child.

The case had an unusual origin. Before any complaint had been made to police, the applicant voluntarily attended a police station on 16 October 2000 and confessed to part of his conduct. He made further disclosures in a second police interview on 30 July 2001, after police had in the interim spoken to the complainant. The sentencing judge, Hock DCJ in the District Court, imposed sentences of four years' imprisonment (with a two-year non-parole period) for each sexual intercourse offence, and a fixed term of one year for the indecent assault, all sentences running concurrently from 15 November 2002.

The applicant sought leave to appeal, arguing that the sentencing judge had not given sufficient weight to his voluntary disclosures and had treated them only as evidence of contrition, rather than as a separate and independent basis for a more substantial sentencing discount.

  • Whether the sentencing judge erred by failing to allow a sufficient discount for the applicant's voluntary disclosure of offending, independent of its value as evidence of contrition.
  • Whether the sentences imposed were manifestly excessive when the voluntary disclosures were properly taken into account alongside all other sentencing factors.

Decision

The Court of Criminal Appeal, agreeing in a joint judgment authored by James J, rejected the argument that the sentencing judge had committed a specific error in treating voluntary disclosure only as evidence of contrition. The Court accepted that voluntary disclosure does carry an independent basis for leniency beyond its role as evidence of remorse, as established in R v Ellis (1986) 6 NSWLR 603. However, it found that the sentencing judge had in fact recognised this principle and had applied it in her remarks on sentence.

The Court noted that the applicant's disclosures were not straightforward. His initial confession on 16 October 2000 was qualified and incomplete. His further disclosures on 30 July 2001 came only after police had already interviewed the complainant, who had by then made allegations against him. These factors qualified the weight properly attributable to the voluntary disclosure.

James J concluded that the applicant was entitled to a "substantial, in the sense of a not insignificant" discount for his voluntary disclosures, and that the sentencing judge appeared to have allowed such a discount, as reflected in the relatively short length of the sentences. Taking all circumstances into account, including the aggravating factors (the very young age of the victim, the breach of trust, some premeditation, and the non-isolated nature of the offending), the sentences were within the proper exercise of the sentencing discretion and were not manifestly excessive.

Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Voluntary disclosure of offending carries an independent basis for sentencing leniency, separate from its value as evidence of contrition, as confirmed by the Court of Criminal Appeal following R v Ellis.
  • In dismissing the appeal, the Court clarified that the discount for voluntary disclosure is properly described as "substantial" in the sense of being not insignificant, rather than necessarily "significant" or "considerable" in a more emphatic sense.
  • The weight of a voluntary disclosure discount is reduced where the initial confession was incomplete or qualified, and where further disclosures were made only after police had already obtained information from a complainant.
  • No error was established in the sentencing judge's approach merely because her remarks emphasised contrition, provided the overall sentence reflected an appropriate allowance for the voluntary disclosure.
  • A finding of special circumstances (justifying a longer than usual parole period) was upheld where the offender had no prior imprisonment, had physical disabilities, and would serve his sentence in protective custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Ryan v The Queen (2001) 206 CLR 267
- R v CDH [2002] NSWCCA 13
- R v Oades [2003] NSWCCA 155