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Court of Criminal Appeal 19 June 2023

DXH (a pseudonym) v R

[2023] NSWCCA 140

Homicide

Citation: DXH (a pseudonym) v R [2023] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 19 June 2023
Judges: Adamson JA (principal judgment); Davies J and Chen J (agreeing)

Background

The applicant was convicted by jury of murder following an incident in mid-2018 in which he accompanied a co-offender to an apartment in western Sydney. The co-offender shot and fatally wounded the deceased. The applicant, who was unarmed, did not know his companion was carrying a firearm until they were already in the building's lift.

Two days after the shooting, the applicant contacted police and voluntarily presented himself for interview. He participated in a lengthy electronically recorded interview that same night. He was arrested, charged with murder, and ultimately convicted. He also gave evidence in two trials against the co-offender, the second of which resulted in a guilty verdict.

Harrison J sentenced the applicant to 14 years' imprisonment with a non-parole period of 10 years and 6 months. The applicant sought leave to appeal on the basis that the sentencing judge had not adequately credited him for his voluntary disclosure of involvement, including by failing to properly apply s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge failed to consider the matters in each subparagraph of s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when assessing the discount for the applicant's voluntary disclosure of his own involvement (the so-called Ellis factor).
  • Whether the sentencing judge was required to provide a greater discount for that voluntary disclosure, in addition to any discount already granted for assistance relating to the co-offender's prosecution.

Decision

The Court of Criminal Appeal dismissed both grounds of appeal. On the first ground, Adamson JA found that a fair reading of the sentencing judge's reasons as a whole showed his Honour had in fact taken the applicant's voluntary disclosure into account when determining the discount under s 23(1). The obligation to address reasons fairly and as a whole meant the applicant could not succeed merely by pointing to an absence of express reference to individual subparagraphs.

On the second ground, the Court found no error in the sentencing judge's assessment of the value of the applicant's disclosure. A critical finding was that the applicant was clearly visible and identifiable on CCTV footage around the apartment complex. The sentencing judge had viewed that footage directly and found it was only a matter of time before police would have approached the applicant regardless. Accordingly, the applicant's act of presenting himself to police and disclosing his presence at the scene was of limited or no additional value.

The Court accepted that the genuinely valuable components of the applicant's assistance were the detail he provided about his and the co-offender's involvement and the circumstances that triggered it, together with his evidence in both co-offender trials. These were reflected in the existing discount. Adamson JA also found it necessarily implicit in the sentencing judge's reasons that a further discount would have been unreasonably disproportionate to the nature and circumstances of the offence, as contemplated by s 23(3) of the Act.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's reasons must be read fairly and as a whole: the absence of express reference to individual subparagraphs of s 23(2) does not, by itself, establish a failure to consider those matters.
  • Under the Ellis principle (reflected in s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)), the value of a voluntary disclosure to police is assessed in context. Where CCTV footage would have led police to the offender in any event, the disclosure that the offender was the person captured on that footage carries little or no weight.
  • A sentencing court may make findings about the probative value of CCTV footage from its own direct observation where that footage was tendered in evidence at trial, provided the finding is not challenged.
  • In dismissing the appeal, the Court confirmed that a discount for Ellis assistance is not unlimited: s 23(3) imposes a constraint where a greater discount would produce a sentence unreasonably disproportionate to the offence, and this constraint can be implicit rather than express in the sentencing judge's reasons.
  • Assistance that is genuinely valuable, such as providing detail about how the offence was triggered and giving evidence in a co-offender's trial, remains a legitimate basis for discount even where the initial act of presenting to police is found to be of limited independent value.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(1), 23(2), 23(3)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Isaacs (1997) 41 NSWLR 374
- CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- George (a pseudonym) v R [2021] NSWCCA 321
- Jones (a pseudonym) v R [2021] NSWCCA 106
- R v SS [2021] NSWCCA 56
- RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 54
- Vassiliou v R [2002] NSWCCA 91
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
- Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40