AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 20 October 2017

R v ELLIS, Craig Martin

[2017] NSWDC 318

Public order & justice offences
CRIMINAL SENTENCE NO PRIOR CRIMINAL OFFENCES ‘EXTRA CURIAL’ PUNISHMENT STRONG FAMILY SUPPORT SYSTEM

Citation: R v Ellis, Craig Martin [2017] NSWDC 318
Court: District Court of New South Wales
Date: 20 October 2017
Judge: Judge S Norrish QC

Background

The offender was the General Manager of the Shelley Beach Golf Club on the Central Coast of New South Wales. In October 2011, police sought CCTV footage from the club in connection with a prosecution of a patron, Bernard Nash, for drink-driving and resisting police. The offender concealed that footage, knowing it may be required as evidence, thereby depriving the Local Court of material relevant to Nash's prosecution. Nash was acquitted, though the court accepted that the concealment did not directly cause that outcome.

Nash later sued the NSW Police Force in the District Court for wrongful arrest, assault, and malicious prosecution arising from the same incident. In 2013, the offender again concealed CCTV footage and loyalty ledger records that had been sought in connection with those civil proceedings. Nash ultimately obtained a verdict in his favour and a substantial damages award in 2015.

The offender pleaded guilty to two counts of suppressing or concealing evidence with intent to mislead a judicial tribunal, contrary to section 317(a) of the Crimes Act 1900 (NSW). Each count carries a maximum penalty of 10 years' imprisonment. He had no prior criminal history and had not previously spent time in custody.

  • What sentence was appropriate for two counts of misleading a judicial tribunal, each involving the deliberate concealment of evidence?
  • What discount should apply for the pleas of guilty, given the procedural history of each count differed significantly?
  • Whether mental health conditions arising after the offences should reduce the sentence.
  • Whether breach of trust constituted an aggravating factor in the circumstances.
  • Whether "extra-curial punishment" (that is, punishment already suffered through non-court consequences such as public exposure or reputational damage) was a relevant mitigating consideration.
  • Whether special circumstances existed to justify a non-parole period that departed from the standard statutory ratio.

Decision

Plea discounts. Count one had been the subject of a jury trial, which ran for approximately five days before the jury was discharged. The offender had been arraigned on a more serious charge under section 319 of the Crimes Act (maximum 14 years), with the section 317 charge as an alternative. Because the offender had an earlier opportunity to plead guilty and did not do so until after a trial had commenced and collapsed, the court allowed only a 5 percent discount on count one for the utilitarian benefit of the plea. Count two was committed directly for sentence and the plea was entered at the first reasonable opportunity, warranting a full 25 percent discount in accordance with the Court of Criminal Appeal guideline in R v Thompson and Houlton.

Breach of trust and other aggravating factors. The court declined to treat breach of trust as an aggravating factor. His Honour reasoned that the offence itself inherently involved a breach of trust, and it would be inappropriate to apply it as an additional aggravating circumstance in the sentencing calculus.

Mental health and extra-curial punishment. The offender's mental health had deteriorated significantly in the years following the offences. His Honour accepted this was relevant to sentencing, particularly in supporting a finding of special circumstances and the need for extended post-release supervision. The court also recognised that some degree of extra-curial punishment had occurred, though characterised it as limited rather than highly significant.

Totality and special circumstances. The sentences were partially accumulated to achieve an appropriate total. His Honour found special circumstances existed on two bases: first, that partial accumulation of sentences is itself an established special circumstance; and second, that the offender would require extended supervision on release to assist his psychological adjustment to the community.

Orders Made

  • Count 1: convicted and sentenced to 9 months and 2 weeks' imprisonment, commencing 20 October 2017 and expiring 3 August 2018 (starting point 10 months, with a 5 percent discount applied).
  • Count 2: convicted and sentenced to 6 months' imprisonment by way of non-parole period, commencing 20 February 2018 and expiring 19 August 2018, with a balance of sentence of 12 months expiring 19 August 2019.
  • Total effective sentence: 1 year and 10 months' imprisonment, with a non-parole period of 10 months.
  • The offender was directed to be released to parole at the expiry of the non-parole period, subject to conditions fixed by the Parole Authority.

Key Takeaways

  • Under section 317(a) of the Crimes Act 1900, deliberately suppressing evidence known to be potentially required in a judicial proceeding carries a maximum of 10 years' imprisonment and will ordinarily attract a term of full-time custody, even for a first offender.
  • A plea of guilty entered only after a jury trial has been commenced and discharged attracts a substantially reduced utilitarian discount. The District Court applied only 5 percent for count one, contrasted with the full 25 percent available for a plea at the first reasonable opportunity on count two.
  • Breach of trust was not treated as a separate aggravating factor where the character of the offence already incorporates a betrayal of the court's processes. Applying it again as an aggravating circumstance would amount to double-counting.
  • Post-offence mental health deterioration can inform sentencing, particularly in supporting a finding of special circumstances under section 44 of the Crimes (Sentencing and Procedure) Act 1999 and justifying an extended period of supervised parole.
  • Partial accumulation of sentences arising from separate offences is, of itself, a recognised basis for a finding of special circumstances, allowing the non-parole period to be reduced below the standard one-third ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 317(a), 319
- Liquor Act 2007 (NSW), s 110
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 44

Cases
- R v Thompson and Houlton (2000) 49 NSWLR 383
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Einfeld v Regina [2010] NSWCCA 87
- Iskander v R [2013] NSWCCA 235
- Kearsley v Regina [2017] NSWCCA 28
- Marinellis v Regina [2006] NSWCCA 307
- Pearce v The Queen (1998) 194 CLR 610
- Phanekham [2015] NSWCCA 295
- R v Allpass (1993) 72 A Crim R 561
- R v Engert (1995) 84 A Crim R 67
- R v Hammoud [2000] NSWCCA 540
- R v Malicki [2015] NSWCCA 162
- Regina v Daetz [2003] NSWCCA 216
- Regina v Giang [2001] NSWCCA 276
- R v Rivkin [2003] NSWSC 447; [2004] NSWCCA 7