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Court of Criminal Appeal 9 February 2022

McKinley v R

[2022] NSWCCA 14

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEAL ASSISTANCE TO AUTHORITIES ELLIS DISCOUNT INSUFFICIENT DISCOUNT APPLIED APPEAL GRANTED

Citation: McKinley v R [2022] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 9 February 2022
Judges: Macfarlan JA, Rothman J (with reasons), Dhanji J

Background

The appellant pleaded guilty in the District Court at Newcastle to five indictable offences committed across mid-2019: aggravated break and enter and steal, take and drive a conveyance without consent, break and enter and steal, armed robbery (with a tomahawk), and larceny. Two further offences were taken into account on Form 1 notices. The offences involved theft of cash and property from multiple victims, including a home invasion and an armed hold-up at a hotel in Stockton.

The appellant came to be charged in an unusual way. He was arrested in December 2019 for an unrelated, comparatively minor matter involving unlawful entry on enclosed lands and possession of a knife. At that point, he voluntarily told police he wished to disclose other offending, participated in an interview, and confessed to all the matters that formed the basis of the charges. He also provided information about the involvement of a co-offender and the circumstances of several of the offences.

In October 2020, the District Court sentenced the appellant to an aggregate term of seven years' imprisonment with a non-parole period of five years and three months. The sentencing judge applied discounts of between 35% and 40% across the individual counts, which she said reflected the utilitarian value of the guilty plea together with the assistance provided to authorities. The appellant appealed, contending the discount for voluntary disclosure of unknown guilt was insufficient.

  • Whether the sentencing judge gave adequate reasons for the extent of the discount applied in respect of voluntary disclosure of unknown guilt under the principle in R v Ellis (1986) 6 NSWLR 603.
  • Whether the sentencing judge failed to consider the broader effect of the voluntary disclosure on other sentencing factors, including deterrence, rehabilitation prospects, and community protection.
  • Whether the resulting sentence was manifestly excessive.

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach. The total discounts applied (25% for the guilty plea plus 15% or less for the Ellis component) did not adequately reflect the significance of the appellant's voluntary disclosure of offending that was entirely unknown to police at the time. The sentencing judge had not given adequate reasons for limiting the Ellis discount to that level, and had treated the plea and the disclosure as if they were closely linked when they were analytically distinct sentencing considerations.

Rothman J confirmed the well-established principle from R v Ellis that a person who voluntarily discloses previously unknown criminal conduct is entitled to a significant reduction in sentence, beyond the utilitarian discount for the guilty plea. This reflects the law's encouragement of such conduct and its relevance to the offender's prospects of rehabilitation. The Court noted that the voluntary disclosure also had direct relevance to how much weight should be given to general and specific deterrence and to the protection of the community, considerations the sentencing judge had not adequately addressed in that context.

The Court found that an error of the kind described in House v The King (1936) 55 CLR 499 had been established, justifying intervention and resentencing. The Court conducted the sentencing exercise afresh, applying a higher discount across the individual indicative sentences to reflect both the plea and the more substantial Ellis component.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 2 October 2020 quashed.
  • In substitution, the appellant was sentenced to an aggregate term of five years and three months, comprising a non-parole period of three years and eleven months commencing 11 December 2019 and concluding 10 November 2023, with a remainder of one year and four months concluding 10 March 2025.
  • The appellant became first eligible for parole on 10 November 2023.

Key Takeaways

  • The Ellis discount for voluntary disclosure of previously unknown guilt is a distinct sentencing consideration from the utilitarian discount for a guilty plea. The two must be assessed and, where possible, articulated separately.
  • A sentencing court must give adequate reasons for the extent of the discount applied under the Ellis principle. An insufficiently explained limitation on that discount may constitute appellable error.
  • Voluntary disclosure of unknown offending is relevant not only to the quantum of discount, but also to the court's assessment of deterrence, rehabilitation, and community protection as independent sentencing factors.
  • In resentencing, the Court of Criminal Appeal reduced the aggregate head sentence from seven years to five years and three months, and the non-parole period from five years and three months to three years and eleven months, reflecting the corrected Ellis discount.
  • Under House v The King, appellate intervention in sentencing requires identification of error in the exercise of the discretion. Here, the inadequacy of reasons and the failure to engage with the broader mitigating significance of the voluntary disclosure constituted that error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(1), 112(2), 117, 154A(1)(a), 195(1A)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(2)(a)-(i), 23(3), 23(4)

Cases
- R v Ellis (1986) 6 NSWLR 603
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- York v The Queen (2005) 225 CLR 466; [2005] HCA 60
- R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92
- SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19
- FS v R [2009] NSWCCA 301
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90
- R v Gallagher (1991) 23 NSWLR 220