Citation: George (a pseudonym) v R [2021] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 22 December 2021
Judge(s): Basten JA, Davies J, Button J (Button J delivering the principal judgment; Basten JA and Davies J agreeing)
Background
The applicant was the father of a six-week-old baby, Richard, who was severely and repeatedly brutalised by the baby's mother. The applicant witnessed multiple acts of violence against his son, including the mother shaking the baby, holding him upside down by his feet, and dragging his head along a bassinet. Despite this knowledge, the applicant concealed what he knew from police, treating medical staff, and anyone else for several days, during which time his son came close to death and suffered permanent cognitive and physical deficits.
The applicant pleaded guilty in the Local Court to failing to report a child abuse offence under s 316A(1) of the Crimes Act 1900 (NSW). A further offence of failing to provide a child with the necessities of life under s 43A(2), which covered his inaction in obtaining urgent medical attention, was placed on a Form 1 (a mechanism that allows additional offences to be taken into account when sentencing for the principal offence without recording a separate conviction).
In the District Court, the sentencing proceedings took an unusual turn. On the first day of the hearing, the applicant gave sworn evidence that contradicted the agreed facts he had signed that same day, denying that he had personally witnessed the violence. At a later hearing, he retracted that denial and confirmed he had seen the assaults. He was ultimately sentenced to a head sentence of 2 years and 7 months imprisonment with a non-parole period of 1 year and 8 months. He appealed to the Court of Criminal Appeal.
Legal Issues
- Whether the applicant's sworn denial of the agreed facts on the first day of sentencing constituted a "traversal" of his guilty plea, such that the sentencing judge should have refused to proceed to sentence.
- Whether the sentencing judge applied the correct approach to the utilitarian discount for the guilty plea, given the applicant's mid-proceedings denial and subsequent retraction.
- Whether the sentencing judge erred in the discount applied for assistance provided by the applicant to authorities.
- Whether the sentencing judge gave adequate reasons for rejecting an Intensive Correction Order, finding full-time imprisonment appropriate, treating specific deterrence as significant, limiting the rehabilitation finding, and using the Form 1 offence to increase the sentence.
Decision
On the traversal question, Button J confirmed that a traversal of a guilty plea occurs when an offender, through their conduct in sentencing proceedings, contradicts the factual basis of the plea to a degree that undermines the plea itself. Here, the applicant had signed agreed facts and ultimately retracted his contradictory evidence, reverting to the position consistent with his plea. Critically, defence counsel never submitted during proceedings that the plea had been traversed. The Court found that, having regard to the overall arc of the proceedings and the ultimate position the applicant adopted on oath, the sentencing judge did not err in proceeding to sentence.
On the question of the utilitarian discount for the guilty plea, the Court accepted that some reduction was warranted given the applicant's mid-proceedings denials, which had complicated and prolonged the sentencing proceedings. However, the Court found the judge's approach to the discount was within the permissible range and disclosed no error.
Regarding the discount for assistance to authorities, the Court found no appellable error in the sentencing judge's assessment. The applicant's assistance had to be weighed against his dishonesty during proceedings, including lying on oath, which legitimately moderated the weight available to be given to his cooperation.
On the adequacy of reasons, the Court rejected each particular of this ground. The sentencing judge had recited the relevant facts in detail throughout the judgment, and the conclusions on the ICO, full-time imprisonment, specific deterrence, rehabilitation, and the Form 1 offence each flowed plainly from that recitation. No additional elaboration was required beyond what was provided.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A guilty plea is not automatically traversed by an offender giving contradictory sworn evidence during sentencing proceedings, particularly where the offender ultimately retracts that evidence and no submission of traversal is made by defence counsel.
- Where an offender's mid-proceedings conduct complicates sentencing, a reduction in the utilitarian discount for the guilty plea is a legitimate sentencing response, provided the reduction reflects the degree to which the proceedings were affected.
- Lying on oath during sentencing proceedings is a factor that can appropriately reduce the weight given to an offender's assistance to authorities, as well as limit findings about prospects of rehabilitation.
- In dismissing the adequacy-of-reasons ground, the Court of Criminal Appeal confirmed that detailed reasons are not always required for every discrete sentencing finding, provided the factual narrative in the judgment makes the conclusions self-evident.
- Under s 43A of the Crimes Act 1900 and s 316A, the principal offence and the Form 1 offence were treated as distinct in character: one concerned concealing a serious offence, and the other concerned failing to obtain urgent medical attention, even though both arose from the same general course of conduct.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 43A, 316A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25F
Cases
- Dean v R [2019] NSWCCA 27
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jones (a pseudonym) v R [2021] NSWCCA 106
- R v Hamilton v DPP [2020] NSWSC 1745
- R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174
- R v VHP (Unreported, NSWCCA, 7 July 1997)