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Court of Criminal Appeal 29 June 2015

Herbert v R

[2015] NSWCCA 172

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUND UPHELD APPLICANT RESENTENCED

Citation: Herbert v R [2015] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 29 June 2015
Judge(s): Hoeben CJ at CL, R A Hulme J, Campbell J

Background

The applicant was convicted in the District Court at Wollongong of three offences of aggravated sexual intercourse without consent, each carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The offences occurred on 27 October 2011 at Callala Bay, when the applicant attacked a 55-year-old woman on a beach, causing her significant physical injuries and lasting psychological trauma.

Two days after the attack, the applicant voluntarily attended a police station without legal advice. He told police he had seen media reports about the assault and was concerned he may have been responsible. He explained a history of alcohol and drug-induced blackouts and, when asked, said he believed he had committed the offences. His DNA was subsequently detected in evidence recovered from the victim.

The sentencing judge imposed a total sentence of 10 years with a non-parole period of 7 years, allowing a 25 per cent discount for early guilty pleas. The applicant sought leave to appeal, arguing the sentencing judge failed to apply a separate discount for his voluntary disclosure of guilt, and also erred in the structure of the sentences.

  • Whether the sentencing judge erred by failing to treat the applicant's voluntary attendance at a police station and disclosure of guilt as a distinct mitigating factor attracting a separate sentencing discount (the "Ellis discount"), independent of the discount for the early guilty plea
  • Whether the sentencing judge erred in the way he structured the individual sentences

Decision

The Court of Criminal Appeal allowed the appeal on the first ground. The "Ellis discount," derived from R v Ellis (1986) 6 NSWLR 603, recognises that a voluntary disclosure of guilt by a person who would not otherwise have been detected or convicted can independently reduce a sentence. The principle rewards conduct that demonstrates genuine remorse, assists the administration of justice, and reflects well on prospects of rehabilitation.

The sentencing judge acknowledged the applicant's voluntary attendance and treated it as relevant to his contrition and rehabilitation, but declined to treat it as an independent discount. The Court of Criminal Appeal held this was an error. The voluntary disclosure was a significant act: the applicant came forward without legal advice, before any charges had been laid, and at a time when the strength of the case against him was not yet established. These features called for a separate reduction in sentence, distinct from the utilitarian discount already given for the guilty plea.

On the sentencing structure ground, the Court found no error requiring intervention but proceeded to resentence the applicant in any event, given the first ground was upheld. Having regard to all circumstances, including the voluntary disclosure, the Court assessed appropriate sentences of 5 years 3 months for the first two counts and 7 years for the third count. The aggregate sentence was reduced from 10 years to 9 years, with the non-parole period reduced from 7 years to 6 years 3 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court on 18 April 2013 quashed
  • Aggregate sentence of 9 years imprisonment imposed, with a non-parole period of 6 years 3 months, dating from 29 October 2011, with the non-parole period expiring 28 January 2018

Key Takeaways

  • A voluntary disclosure of guilt, where an offender comes forward before charges are laid and without any certainty of detection, can attract a distinct sentencing discount under Ellis principles, separate from any utilitarian discount given for an early guilty plea.
  • Treating voluntary disclosure only as evidence of remorse and good prospects of rehabilitation, without also applying it as an independent discount, constitutes a sentencing error.
  • The strength of an Ellis discount depends on the circumstances of the disclosure: the absence of legal advice, the timing relative to the investigation, and the degree to which detection was genuinely uncertain are all relevant factors.
  • In upholding the appeal, the Court of Criminal Appeal reduced the total sentence from 10 years to 9 years imprisonment and the non-parole period from 7 years to 6 years 3 months, reflecting the weight properly attributed to the voluntary disclosure.
  • The finding of special circumstances by the primary judge was maintained, consistent with the reasons given at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(3), 53A

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
- R v Hasan [2005] NSWCCA 21
- R v LG [2012] NSWCCA 249
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Windle v R [2012] NSWCCA 222
- Zhang v R [2011] NSWCCA 233