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Court of Criminal Appeal 9 April 2021

R v SS

[2021] NSWCCA 56

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE BY CROWN RECKLESSLY CAUSING GRIEVOUS BODILY HARM BABY SHAKEN LIKE A RAGDOLL MISUNDERSTANDING OF R V ELLIS

Citation: R v SS [2021] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 9 April 2021
Judges: Hoeben CJ at CL; RA Hulme J; Adamson J

Background

A father pleaded guilty in the District Court to recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence involved shaking his four-week-old daughter described in the agreed facts as being shaken "like a ragdoll" after she would not stop crying. The baby suffered severe and multiple intracranial injuries resulting in permanent brain damage and cerebral palsy.

The District Court sentenced the father to a total of 1 year and 9 months imprisonment, with a non-parole period of 12 months. The sentencing judge applied a 25% discount for an early guilty plea and a further 25% discount for the father's belated admissions to police during a second recorded interview. The offence carries a maximum penalty of 10 years and a standard non-parole period of 4 years.

The Crown appealed on multiple grounds, arguing that the sentencing judge erred in assessing objective seriousness, wrongly applied a discount for assistance to authorities, and imposed a sentence that was manifestly inadequate.

  • Whether the sentencing judge's finding that the offence was not at the high end of objective seriousness was open on the facts
  • Whether a discount for voluntary disclosure of guilt (an "Ellis discount," derived from R v Ellis (1986) 6 NSWLR 603) was properly available given the circumstances of the admissions
  • Whether s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and was engaged before a discount for assistance to authorities could be granted
  • Whether the sentence imposed was manifestly inadequate
  • Whether non-publication and suppression orders made in the District Court were necessary given the automatic operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Decision

Objective seriousness: The Court of Criminal Appeal held that the sentencing judge's assessment of objective seriousness was not open on the evidence. The victim was a four-week-old baby, the offending caused severe permanent brain injury, and the agreed facts described shaking of significant force. Those factors placed the offence firmly toward the higher end of seriousness for the offence type.

The Ellis discount and s 23: The Court found that the sentencing judge erred in applying a 25% discount for the father's admissions to police. Under R v Ellis, a discount is available where an offender makes a voluntary disclosure of guilt that was otherwise unknown to authorities. Here, police already had significant grounds to suspect the father before the second interview. The Court also found that s 23 of the Crimes (Sentencing Procedure) Act 1999, which governs discounts for assistance to authorities, had not been properly engaged. Direct evidence from investigating officers is needed to prevent speculation about the value of any assistance, and the onus rests on the offender to establish the discount. Neither condition was satisfied on the material before the sentencing judge.

Manifest inadequacy: Given the compounding errors in the assessment of objective seriousness and the wrongly applied discount, the Court found the sentence manifestly inadequate and concluded that resentencing was appropriate.

Non-publication orders: The Court noted that the non-publication and suppression orders made in the District Court were unnecessary. Section 15A of the Children (Criminal Proceedings) Act 1987 operates automatically to prohibit publication of material likely to identify a child victim, rendering separate court orders of that kind redundant. The Court revoked those orders.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court on 17 August 2020 quashed
  • Respondent resentenced to imprisonment comprising a non-parole period of 3 years, with a balance of term of 1 year and 6 months (total sentence of 4 years and 6 months)
  • Sentence to date from 14 August 2020; respondent eligible for parole on 13 August 2023
  • Non-publication and suppression orders made in the District Court on 14 August 2020 revoked, noting the automatic operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Key Takeaways

  • A sentencing court must treat the youth and extreme vulnerability of a victim, together with the severity and permanence of resulting injury, as significant factors bearing on objective seriousness; the District Court's contrary finding was held not to be open on these facts.
  • Under R v Ellis, a voluntary disclosure discount is available only where the offender reveals guilt that was otherwise unknown to authorities; where police already have a significant basis to suspect the offender before admissions are made, the discount will not apply in the same way.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, the onus lies on the offender to establish entitlement to a discount for assistance to authorities, and direct evidence from investigating officers is ordinarily required to avoid impermissible speculation about the value of that assistance.
  • Section 15A of the Children (Criminal Proceedings) Act 1987 operates automatically to prohibit publication of material likely to identify a child victim in proceedings; courts need not (and should not) make separate non-publication or suppression orders to achieve the same effect.
  • Cumulative errors in assessing objective seriousness and discounts can together produce a sentence that is manifestly inadequate, justifying intervention and resentencing by the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Ahmad v R [2021] NSWCCA 30
- Browning v R [2015] NSWCCA 147
- Buckley v R [2021] NSWCCA 6
- CMB v Attorney General for The State of New South Wales (2015) 256 CLR 346
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Forti v R [2016] NSWCCA 127
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Griffiths v The Queen (1977) 137 CLR 293
- Herbert v R [2015] NSWCCA 172
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Le v R [2019] NSWCCA 181
- Lewins v R [2007] NSWCCA 189
- Markarian v The Queen (2005) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- R v AA [2017] NSWCCA 84
- R v Bell [2005] NSWCCA 81
- R v CDH [2002] NSWCCA 103
- R v Dodd (1991) 57 A Crim R 349