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Court of Criminal Appeal 30 July 2025

Denniss v R

[2025] NSWCCA 110

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE ASSISTANCE TO AUTHORITIES APPEAL ALLOWED APPLICANT RESENTENCED

Citation: Denniss v R [2025] NSWCCA 110
Court: Court of Criminal Appeal, NSW
Date: 30 July 2025
Judges: Adamson JA (dissenting); Garling J; Sweeney J (majority)

Background

The applicant pleaded guilty in the Local Court to one count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence involved a prolonged and ferocious unprovoked attack on a hotel night manager in Wollongong in the early hours of 30 August 2022, which left the victim with substantial and permanent brain damage, cognitive dysfunction, and physical and mental disabilities requiring ongoing care.

Approximately 40 minutes after the attack, the applicant walked to Wollongong Police Station. After asking a police officer for a cigarette, he stated that he had "murdered someone" and had "bashed" the victim. Police immediately attended the hotel and found the victim on the floor with serious injuries. The victim was later placed in an induced coma.

On 15 March 2024, Judge Harris of the District Court sentenced the applicant to 10 years and 6 months imprisonment with a non-parole period of 7 years, after applying a 25% discount for the guilty plea. The applicant sought leave to appeal on the sole ground that the sentencing judge failed to account for his self-report to police as evidence of assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and as evidence of remorse under s 21A(3)(i) of the same Act.

  • Whether the applicant's disclosure to police approximately 40 minutes after the offence constituted "assistance to authorities" warranting a sentencing discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether that disclosure was also relevant evidence of remorse under s 21A(3)(i) of the Act
  • Whether the sentencing judge's failure to address s 23 (no submissions having been made on the point at first instance) amounted to an error causing a miscarriage of justice in the sentencing process
  • Whether, if error were established, any reduction in sentence would be "unreasonably disproportionate to the nature and circumstances of the offence" within the meaning of s 23(3) of the Act

Decision

The Court allowed the appeal by majority (Sweeney J, with Garling J agreeing), with Adamson JA dissenting. The central issue was whether the applicant's self-report to police, which had not been raised by trial counsel at the sentencing hearing, should have been considered as both assistance to authorities and evidence of remorse.

Majority (Sweeney J, Garling J agreeing): The majority found that the applicant's disclosure to police, though not strictly "immediate," was sufficiently timely to constitute assistance to authorities under s 23. It enabled the police to locate the victim more promptly than would otherwise have occurred, potentially contributing to a better medical outcome. The failure by trial counsel to raise this matter for the sentencing judge's consideration caused a miscarriage of justice in the sentencing process. The majority also accepted the disclosure as evidence of early remorse, warranting separate allowance. Applying a discount of 7.5% for the s 23 assistance and taking remorse into account, the majority resentenced the applicant to a total term of 9 years imprisonment.

Dissent (Adamson JA): Her Honour would have dismissed the appeal. Adamson JA reasoned that the applicant had waited 40 minutes, approached the officer to ask for a cigarette rather than to report the offence, and believed at the time that the victim was already dead. In those circumstances, the conduct did not reach the threshold for ameliorating conduct capable of mitigating sentence under the principles established in cases such as Thewlis v R. Her Honour also found that the sentencing judge's reference to a report describing the applicant as "horrified" about the offence was sufficient to show that early acceptance of responsibility had been taken into account as remorse. Further, even if s 23 were engaged, any reduction would be unreasonably disproportionate given the objective seriousness of the offence and the fact that the sentence already reflected an adjustment for special circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge Harris on 15 March 2024 quashed
  • Applicant resentenced to a non-parole period of 6 years imprisonment, with an additional term of 3 years imprisonment, making a total sentence of 9 years imprisonment, dating from 30 August 2022 (non-parole period expiring 29 August 2028; head sentence expiring 29 August 2031)

Key Takeaways

  • A defendant's self-report to police shortly after an offence, where it enables more timely assistance to be rendered to a victim, can constitute "assistance to authorities" under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where the report is not strictly immediate and was not strategically motivated.
  • The same disclosure may simultaneously be treated as evidence of remorse under s 21A(3)(i) of the Act, attracting a separate allowance in sentence.
  • Where a sentencing factor of potential significance is not raised by trial counsel, the Court of Criminal Appeal may find a miscarriage of justice in the sentencing process, warranting resentencing. This is so even when the sentencing judge is not at fault for failing to address an issue that was never put to her.
  • The majority and dissent in this case disclose a genuine disagreement about the threshold for "ameliorating conduct": whether a 40-minute delay, combined with an indirect approach to police, is sufficient to attract a discount under s 23. The result turned on a two-to-one majority.
  • Under s 23(3) of the Act, a discount for assistance to authorities is not available where the resulting sentence would be "unreasonably disproportionate to the nature and circumstances of the offence." Adamson JA's dissent illustrates that this provision can operate as a constraint even where some degree of assistance is accepted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23

Cases:
- Ahmad v R [2021] NSWCCA 30
- Anderson v R [2019] NSWCCA 256
- CMB v Attorney General for the State of New South Wales [2015] HCA 9; (2015) 256 CLR 3
- Hamdan v R [2023] NSWCCA 80
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- McKinley v R [2022] NSWCCA 14
- Noonan v R [2020] NSWCCA 346
- R v Burke [2002] NSWCCA 353
- R v Ellis (1986) 6 NSWLR 603
- R v SS (2021) 104 NSWLR 454; [2021] NSWCCA 56
- Soars v R [2024] NSWCCA 218
- Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279
- Tohifolau v R [2018] NSWCCA 283
- White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460