Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Irwin v R [2021] NSWCCA 172 Hearing dates: 28 June 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Before: Bathurst CJ at [1]; Rothman J at [2]; Garling J at [99] Decision: (1) Leave to appeal is granted; (2) Appeal dismissed. Catchwords: CRIME – Sentence Appeal – sexual offences on child – breach of Child Protection Orders – alleged failure to provide reasons for objective seriousness determination – failure to afford reduction for alleged assistance – reasons read as a whole provide sufficient basis for understanding why determination was effected – reasons delivered ex tempore – alleged admissions and plea not assistance that required reduction – no error disclosed Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) Crimes Act 1900 (NSW), ss 66DA(a), 86(1)(a1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23 Cases Cited: Ahmad v The Queen [2021] NSWCCA 30 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Browning v R [2015] NSWCCA 147 CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 DBW v R [2007] NSWCCA 236 GAS v the Queen (2004) 217 CLR 198; [2004] HCA 22 Hili v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Howard v R [2019] NSWCCA 109 Meissner v the Queen (1985) 184 CLR 132; [1995] HCA 41 Mulato v R [2006] NSWCCA 282 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Ellis (1986) 6 NSWLR 603; (Court of Criminal Appeal (NSW), 17 October 1986, unrep) R v SS [2021] NSWCCA 56 R v Windle [2012] NSWCCA 222 Salafia v R [2015] NSWCCA 141 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Christopher Irwin (Applicant) Regina (Respondent) Representation: Counsel: J Paingakulam (Applicant) C Gleeson (Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/171603 Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the victim is prohibited. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2020] NSWDC 199 Date of Decision: 14 April 2020 Before: Colefax SC DCJ File Number(s): 2019/171603 Judgment 1. BATHURST CJ: I agree with the orders proposed by Rothman J and generally with his reasons. 2. ROTHMAN J: The applicant, Christopher Irwin, seeks leave to appeal, and, if leave be granted, appeals, the sentence imposed upon him in the District Court. The Applicant pleaded guilty in the Campbelltown Local Court on 6 November 2019 and the sentence proceedings occurred on 14 April 2020, at which time the learned sentencing judge imposed a sentence and issued ex tempore remarks on sentence. 3. The sentencing judge imposed an aggregate sentence of imprisonment of 10 years, including a non-parole period of 7 years and 6 months, commencing on 31 May 2019. 4. The offences and the maximum sentences in relation to each of them were: 1. Sequences 3, 4: failed to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), committed on 31 May 2019, being a contravention of s 17(1) of the Child Protection (Offenders Registration) Act a maximum penalty for which is 5 years' imprisonment and/or 500 penalty units; 2. Sequence 5: take/detain with intent to commit serious indictable offence (sexual intercourse with child under the age of 10 years), committed on 31 May 2019, being a contravention of s 86(1)(a1) of the Crimes Act 1900 (NSW), for which the maximum penalty is 14 years' imprisonment; 3. Sequence 6: sexually touch child under 10 years of age, also committed on 31 May 2019, being a contravention of s 66DA(a) of the Crimes Act, the maximum penalty for which is 16 years' imprisonment and for which there is prescribed a standard non-parole period of 8 years. 1. His Honour set out indicative sentences for each of the foregoing offences, which were: 1. Sequence 3: imprisonment for 2 years and 3 months; 2. Sequence 4: imprisonment for 6 months; 3. Sequence 5: imprisonment for 7 years and 6 months; 4. Sequence 6: imprisonment for 3 years and 9 months, with an indicative non-parole period of 2 years and 9 months. 1. The applicant seeks the quashing of the sentence imposed in the District Court and his resentencing, for which he seeks a less severe sentence. The application for leave and the appeal are based upon two grounds: 1. Ground 1: the sentencing judge erred by failing to provide reasons for his Honour's finding as to the objective seriousness of the offences; 2. Ground 2: the sentencing judge erred by failing to afford the applicant any benefit for his admissions to police in relation to Sequence 5, pursuant to the principle in R v Ellis (1986) 6 NSWLR 603 and/or s 23 [of the] Crimes (Sentencing Procedure) Act 1999 (NSW) and/or as evidence of remorse. Background Facts 1. The circumstances giving rise to the offences can be summarised very briefly. On 21 February 2014, the applicant had been sentenced to imprisonment for using a carriage service to access child pornography. That offence was based upon the applicant using a mobile phone to search for child pornography. 2. When the police searched the applicant's phone, they found a file, which fell within the CETS 5 classification. As a consequence of that offence, the applicant was placed on the Child Protection Register pursuant to the Child Protection (Offenders Registration) Act 2000. The applicant remained on the Register until 21 February 2020. 3. In May 2019, the applicant was in a relationship with a woman (hereinafter "his partner" or "the applicant's partner") with whom he resided in Macquarie Fields. His partner also owned another house in Macquarie Fields (hereinafter "the unoccupied premises") and the applicant regularly stayed overnight in the unoccupied premises. The applicant did not report, as was required, any alteration in his residential premises on those days or nights in which he was residing at the unoccupied premises. 4. On 31 May 2019, the applicant was at the unoccupied premises when a seven-year-old victim was playing in the street with a number of other children. The applicant had spoken with the victim on prior occasions and, pursuant to the reporting obligation in the Child Protection (Offenders Registration) Act, the applicant was required to inform police of the name, age and address of any child with whom he came into contact. The applicant failed to comply with that obligation in relation to this child. 5. The failure to inform police of the details of the child is the offence in Sequence 4. The failure to report the times at which the applicant resided at the unoccupied premises gave rise to Sequence 3. 6. The victim lives in the street with her grandmother. As the victim was rollerblading in the street, her grandmother was speaking with a neighbour, a short distance away. [1] At the time the applicant was sitting in the gutter outside the unoccupied premises, smoking a cigarette and watching the victim and the other children. 7. A short time later, the applicant approached the victim, when she was alone and said to her: "Do you want to see something cool?", to which the victim replied: "No!". 8. Nevertheless, the applicant took the victim's hand and walked her down the driveway of the unoccupied premises. 9. They walked inside the house; the applicant closed the door behind them; and locked it (Sequence 5). This activity was witnessed by a neighbouring resident who told the victim's grandmother. 10. When the applicant took the victim into the house, the applicant took off the victim's jacket and stood behind her. He then undid the buttons on her shorts, pulling them off and putting them on the floor (Sequence 6). 11. The applicant then removed his own pants and held the victim. A DNA profile was obtained from inside the victim's shorts, the analysis of which revealed that the applicant could not be excluded as a contributor to the mixed profile DNA. 12. At about that point, a group of neighbours banged on the front door of the unoccupied premises and called out repeatedly that they were calling the police. No response was heard, but muffled noises were heard from inside the house. The applicant had put his hand over the victim's mouth and told her to "be quiet and we'll wait for your nan to go. Then I will let you go." The victim replied: "You have to let me go otherwise the Police will come." 13. Other neighbours joined the group outside the unoccupied premises and the grandmother, who was outside, heard the victim yell "Nan" in a muffled tone from inside the house. The neighbours were yelling that they were "calling the Police". 14. Before the grandmother found an object with which she could break the front window, the front door opened and the applicant released the victim. The victim walked out of the front door with one arm out of the jacket she was wearing at the time. She was taken, by her grandmother, back to her house and another neighbour called Police. 15. When Police arrived, they found the applicant seated on the veranda of the unoccupied premises, with blood coming from his nose. The applicant identified himself and told Police he was on the Child Protection Register. The applicant denied having had the victim in his house. 16. The applicant was taken to Campbelltown Police Station and had the benefit of a support person, because he told Police he suffered from an intellectual disability. In the presence of the support person, the applicant refused to be interviewed in relation to the matter. As to the injuries inflicted on him, the applicant said he was punched by a man he did not know and refused to say anything further. 17. Some two months later, on 29 July 2019, Police attended the Metropolitan Remand and Reception Centre (MRRC) and spoke with the applicant. At the time the applicant was accompanied by a support person, being his grandmother. 18. During the course of the interview, the applicant told police the following: 1. On the day of the offences his mind was in "complete overload" and "something snapped"; 2. He took off the victim's jacket and took off her shorts before pulling his track pants down; 3. He then heard knocks on the door and let the girl go. He copped five or six good punches, implicitly, from the group of neighbours; 4. He gave a version of the conversation with the victim that was similar to but not the same as the agreed facts and, in particular, he did not mention that the victim indicated that she did not want to come into the house or "see something cool". Rather, he indicated that he did not recall her response; 5. He confirmed he had been holding the victim; let her go; the victim ran to the door; opened it; and ran outside; 6. He had a vague recollection of putting his hand on the victim's mouth; 7. When asked what would have happened if he wasn't interrupted, the [applicant] said "something could have happened if I, if I wasn't interrupted, and I don't even really want to think about what, what could've happened", and "I'm sure there could've been penetration"; 8. He said he felt ashamed, remorseful, regretful and wanted to hang himself; 9. He confirmed his obligations under the Child Protection Register. [2] Remarks on Sentence 1. As earlier indicated, the remarks and sentence were given ex tempore. His Honour set out the offences with which the applicant was charged and summarised the agreed facts that were before the Court. 2. During the course of the proceedings, the learned sentencing judge had pointed out that the two premises, being the applicant's usual place of residence and the unoccupied premises, were just over 2 km apart, with which neither the Crown nor counsel for the applicant cavilled, and was approximately a two-minute drive. 3. During the course of the remarks on sentence, his Honour posed, understandably, in reference to the submission that the offending was "opportunistic", why it was necessary for the applicant to stay overnight in the unoccupied premises, even if it were necessary for the applicant to attend those premises for the purposes of maintaining the gardens and the house. Nevertheless, his Honour was not prepared to speculate about what motive existed for that conduct. [3] 4. His Honour then, after setting out all of the relevant facts, made the following remark: "[36] The Court is required to make findings as to the objective seriousness of each offence for an offence of its kind. [37] In relation to Sequence 3 (failing to inform police as to your correct residence) it is slightly above a mid-range offence. In relation to Sequence 4 (failing to inform police about your communications with children) it is towards but not at the bottom of the range. In relation to Sequence 5 (the take and detain with intent to commit serious indictable offence, namely, sexual intercourse with a child under 10) it is above the mid-range and into the upper range. And in relation to Sequence 6 (the intentionally touching of a child under 10) it is a mid-range offence." 1. His Honour then set out the subjective circumstances pertaining to the applicant in his very early years; his school years; and later in life. His Honour examined the issue of whether treatment had been provided previously to the applicant and made the comment that, if there were to have been treatment during his previous imprisonment, it had not been effective. 2. Further, the sentencing judge made comments about the truthfulness of the applicant compared with the objective facts recorded by Justice Health and the circumstances of the offending, both on this occasion, and on the previous occasion. His Honour remarked that the applicant had "either … no insight … or that [the applicant] sought to deliberately mislead the practitioners and the Court." [4] 3. His Honour was satisfied that it was more likely that the lack of insight occasioned the inaccuracies. Nevertheless, his Honour took the view that the lack of insight was a matter that affected the sentence to be imposed and was "a matter of very great concern". [5] 4. His Honour then remarked that there had been no direct expression of remorse to the Court or to the victim or to her family, but only to the psychiatrist and, in light of the lack of insight, that expression was of reduced significance. His Honour took the view that the prospects of rehabilitation were extremely guarded and remarked that no sentence other than one of imprisonment was appropriate for any one of the offences. 5. His Honour remarked that because of the applicant's intellectual disability, general deterrence is somewhat reduced but remained relevant. Specific deterrence was also relevant, as was the protection of the community. 6. His Honour reduced the sentence that he might otherwise have imposed by 25% for the utilitarian value of the plea of guilty given at the earliest time, but remarked that they were entered "in the face of a strong Crown case". His Honour declined to find special circumstances or to fix a ratio of the head sentence to the non-parole period that was less than the prescribed relationship. 7. As has already been indicated, his Honour set out indicative sentences, including an indicative non-parole period for that offence which had prescribed for it a standard non-parole period and imposed an aggregate sentence of a non-parole period of 7 years and 6 months from 31 May 2019, concluding on 30 November 2026, with a balance of term of 2 years and 6 months, concluding 30 May 2029. Principles on Appeal 1. Before dealing with the grounds of appeal, given the nature of the grounds raised on appeal, it is necessary to restate some principles associated with the task of sentencing and the role of an appeal against the sentence imposed. Some of these principles are trite. Their application or an understanding of them sometimes needs reinforcing. 2. First, the sentencing process is an exercise of discretion in which the sentencing judge evaluates the facts and circumstances relating to the offence and the offender and determines the sentence to be imposed, bearing in mind those relevant facts and circumstances. 3. The High Court [6] reinforced the principles associated with the different roles of the prosecutor, offender and sentencing judge in the process of sentencing. First, it is for the prosecutor, alone, to determine the charges to be preferred against an accused; secondly, it is for the accused, alone, to determine the plea to be entered in relation to the charge that has been preferred; thirdly, and, for present purposes, most importantly, it is for the sentencing judge, alone, to determine the sentence to be imposed. [7] 4. The High Court in GAS, supra, made clear that the submissions of counsel are for the assistance of the sentencing judge, but it is for the sentencing judge to determine the facts and to apply to them the relevant law and sentencing principles. However, the sentencing judge is not bound by any agreement between the prosecutor and the accused nor by any range or limits suggested by either or both to the Court. [8] 5. The process of sentencing is a process that has been described as instinctive or intuitive synthesis. It is not mathematical; nor does it lend itself to a process which results in only one correct answer. 6. It is for that reason that the appropriate sentence for a particular offence, within offences of that kind, for the offender, is usually referred to by a range of sentences. But one cannot lose sight of the principle that in determining an appropriate sentence, the sentencing judge takes into account all of the relevant facts, both as to the nature of the offence and the subjective factors of the offender and synthesises them to seek to achieve the purposes of sentencing. 7. It is unnecessary to deal, in these proceedings, with the purposes of sentencing, which have been described many times and are the subject of statutory prescription. Those purposes do not all, or always, point in the one direction and many are, almost of necessity, conflicting, in the sense that they point in different directions. 8. In the process of sentencing, it is necessary for a sentencing judge to determine the objective seriousness of an offence and factor that objective seriousness, together with the subjective circumstances of the offender, into the ultimate conclusion as to the appropriate sentence to impose. However, the process of determining objective seriousness is not a process that applies the opinion as to objective seriousness expressed either by the Crown or by the representatives of the accused. 9. The assessment of objective seriousness is a conclusion; it is certainly an evaluative process, which is part of the fact-finding and exercise of discretion that is essential to the sentencing process. 10. The function has been described by this Court in the following terms: "[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." [9] 1. As stated, the assessment of objective seriousness is a conclusion. Notwithstanding the deference with which an appeal court will treat the determination by a sentencing judge of objective seriousness, it is capable of being challenged. However, the challenge to an assessment of objective seriousness must be confined to the kind of error with which one can challenge the sentence that is ultimately determined. 2. Once the sentencing judge has determined the objective seriousness of an offence, on appeal, that determination may be challenged, if the sentencing judge were shown to be acting upon a wrong principle; allowing extraneous or irrelevant matters to guide or effect the determination; making a mistake of fact; or not taking into account some material consideration. [10] 3. As was stated in House, supra, error may appear even though it is unable to be identified. In order for that to occur the outcome of the exercise must be shown to be unreasonable or plainly unjust, by which result the Court on appeal can infer that there has been a failure properly to exercise the discretion conferred on the sentencing judge. [11] 4. The mere fact that a judge on appeal arrives, or would arrive, at a different conclusion than the sentencing judge does not, of itself, result in the conclusion that the sentencing judge has arrived at a conclusion which is unreasonable or plainly unjust, nor done so by a process which involves error of the kind to which the High Court referred in House. 5. The conclusion by a sentencing judge of the objective seriousness of a particular offence is, by definition, a conclusion. It does not admit of lengthy exposition. [12] 6. Given the grounds of appeal raised in these proceedings, it is unnecessary to expand further on the principles applicable. However, given that I have referred earlier to issues associated with the range of sentences, it should be made clear that the term is not synonymous with the pattern of past sentencing. As the High Court has made clear stating an available range of sentences is a process apt to mislead. [13] 7. Further, as already stated, the process is not mathematical. The pattern of past sentencing does no more than establish a range of sentences which have been imposed. Until a sentencing judge comes to consider the particular offence and the particular offender, the history of past sentences does not establish that the sentences that have been imposed in the past mark out the bounds of the permissible discretion reposed in the sentencing judge. [14] 8. The pattern of past sentencing is a yardstick against which a sentencing judge should measure the intended sentence; but, without a proper comparison of those sentences, it does not mark out the upper and lower limits that may be imposed in any particular sentence. 9. The foregoing principles are those that are to be applied in determining the grounds of appeal raised by the applicant. I turn then to those grounds of appeal. Grounds of Appeal; Submissions and Consideration 1. As already stated, Ground 1, raised by the applicant, submits that error occurred because the sentencing judge failed to provide reasons for his findings as to the objective seriousness of the offence. As already stated, the determination of objective seriousness is a conclusion. 2. The applicant relies upon the failure of the sentencing judge to indicate all of the factors that his Honour took into account in making the assessment. The applicant also relies upon that circumstance as being particularly important because there was a defence submission, in relation to Sequence 4, being the failure to comply with reporting obligations, that it was "at the lowest level of seriousness" and in relation to Sequence 6, being the intentionally sexually touch child under 10, that it was "towards the lower end of the scale". 3. First, whether one describes the submission of the applicant below as an opinion [15] or a conclusion, it is, at its highest, a suggestion or submission by the accused which does not bind the Court. 4. The Court stated its conclusions as to the objective circumstances of the offences in question; and of all of the offences. The applicant relies upon comments of Spigelman CJ in DBW. [16] However, a reading of the entirety of the reasons for judgment of Spigelman CJ in DBW does not assist the applicant in these proceedings. 5. In DBW, the Court was dealing with the application of aggravating features under the provisions of s 21A of the Crimes (Sentencing Procedure) Act. The sentencing judge referred to the fact that he had applied the provisions of s 21A, without specifying that which the sentencing judge considered was aggravating or, on the other hand, that which was said to be ameliorating or mitigating. 6. In his reasons, Spigelman CJ restated the proposition that it was important for the sentencing judge to identify those matters that have been taken into account in determining the sentence. [17] In DBW, the submission was that the sentencing judge had erred and his reasons were defective, because he had failed to identify the matters of aggravation that he had considered. The Court rejected that submission, even though there was no particularisation of the factors. 7. In this case, the learned sentencing judge provided ex tempore remarks. He did so by reciting the facts and circumstances that he considered relevant to the exercise that he was required to perform. 8. All the relevant facts relating to objective seriousness were recited by the sentencing judge. There is no submission that the sentencing judge omitted a relevant fact or relied on a fact that was irrelevant. 9. Further, there is no suggestion, in this appeal, that the sentence imposed is manifestly excessive. Nor is there a suggestion that the conclusion as to objective seriousness is wrong. 10. The Court should take the view that, where all relevant matters have been set out in ex tempore reasons and, thereafter, the sentencing judge states a conclusion on objective seriousness, those relevant factors have been taken into account in determining the conclusion. Any other approach would be to impose a burden on sentencing judges to explain a conclusion that has often been described as a "value judgment", in which the conclusion reached is a discretionary one for which there is no definitively correct answer and for which the process is not mathematical. [18] 11. For my own part, I would have reached a conclusion as to objective seriousness which was, at least, at the level determined by the learned sentencing judge. In my view, the failures to report as required by the Child Protection Register are serious offences. 12. The requirement to report is aimed, plainly, at policing more serious offences. The fact, if it were the fact, that a more serious offence did not occur, but almost occurred, hardly puts the failure to report in the lowest category of seriousness or towards the lower end of the scale. 13. Similarly, in relation to the intentional sexual touching of the child, given that the DNA of the applicant was found on the inside of the shorts of the victim and the applicant was interrupted in his exercise only by the vigilance of the victim's grandmother and neighbours, I do not consider that the offence was anything other than mid-range or that it could be otherwise classified. 14. The conclusion of the learned sentencing judge as to the objective seriousness of each of the offences is manifestly correct. It is certainly not a conclusion which discloses manifest error. 15. Nor has there been identifiable error in reaching that conclusion. It is not appropriate to concentrate on the two paragraphs which refer expressly to objective seriousness, without taking into account the whole of the remarks on sentence and treating those remarks on sentence fairly and appropriately. 16. In my view, the remarks on sentence sufficiently disclose the process of reasoning of the learned sentencing judge and his path to the conclusion as to objective seriousness. 17. The learned sentencing judge detailed the previous offences that caused the applicant to be placed on the Child Protection Register and characterised them as "disturbing". [19] Further, the learned sentencing judge referred to the absence of any legitimate explanation for the applicant staying overnight at the unoccupied premises; [20] referred to the victim playing in the street and the applicant watching her and the other children; [21] explained the conduct that constituted each of the offences in question and did so in a manner that connected the judge's observations on the previous offences and the absence of a legitimate explanation for the overnight stay at the unoccupied premises. 18. Over and above the foregoing, the learned sentencing judge explained the circumstances of Sequence 6, including the resistance of the victim and the applicant's insistence by holding her hand and taking her with him as well as the detaining of the victim by the locking of the door. 19. Having described the circumstances of each of the offences, the sentencing judge was entitled to reach a conclusion as to their objective seriousness, without further explanation. 20. In all the circumstances, the first ground of appeal should be rejected. 21. In the second ground of appeal, the applicant seeks to rely upon error in that the learned sentencing judge did not provide any benefit or discount for assistance to authorities pursuant to the terms of s 23(2) of the Crimes (Sentencing Procedure) Act or the principle established in Ellis. [22] 22. Essentially, the applicant submits that he assisted Police by admissions made in his ERISP on 29 July 2019 and, in particular, that, in the absence of the admissions made during the ERISP, it would not have been possible to prove beyond reasonable doubt that it was the applicant's intention to have sex with the victim. This is a reference to the statement, made by the applicant, to which earlier reference has been made, that, if the applicant were not to have been interrupted, "something could have happened", and if he were not interrupted "there could've been penetration". 23. First, the possibility of the provision of an allowance for assistance to authorities under the provisions of s 23 of the Crimes (Sentencing Procedure) Act was not a submission on which the applicant relied during the course of the sentencing proceedings. As a consequence, it can hardly be said that the sentencing judge fell into error in failing to deal with an aspect that was not the subject of any submission before him. 24. More importantly, the comments made by the applicant during the course of the ERISP were comments as to what could have happened. The closest that the applicant comes to stating his intention is the comment that he was "sure there could've been penetration". 25. Properly understood, that statement is still a statement of possibility. It does not, in and of itself, admit to intention in a way that would allow it to be used to prove, beyond reasonable doubt, the intention of the applicant. 26. Over and above the foregoing, the circumstances of the offending were well known and easily proved. That which was said by the applicant was not said in circumstances "where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence". [23] 27. In terms referable to s 23 of the Crimes (Sentencing Procedure) Act, that which is required to be assessed is the degree to which the offender has assisted authorities in, relevantly, the detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. The evidence of offending was overwhelming, without the admission of the applicant. 28. The inference that would, almost necessarily, be drawn as a result of the conduct of the applicant, without any admission, would have been that the taking or detaining, with which he was charged, was for the intention of committing a serious indictable offence. That is the charge preferred and it carries a maximum penalty of 14 years' imprisonment. 29. I have above cited a passage from Ellis, supra, which is now codified, as stated above, in s 23 of the Crimes (Sentencing Procedure) Act. [24] Notwithstanding the codification of the allowance for assistance, the comments of the Court in Ellis and the cases that followed it in time provide guidance for the application of s 23. [25] 30. Assistance is a matter of mitigation and the offender bears the onus of proof, on the balance of probabilities, to establish that such assistance has been given and that a discount ought to follow. [26] 31. This Court has described three types of voluntary disclosures that might allow for the kind of leniency to which an Ellis discount would apply. They are: 1. Revelation of an offence not known to the authorities; 2. Revelation of the identity of the offender; or 3. Revelation of an aspect of the offending not known to the authorities. [27] 1. In any event, the applicant did not voluntarily disclose "otherwise unknown guilt". His guilt was discoverable and, even in relation to the possible intention, a matter that was readily available as an inference from the conduct that had already been discovered. That evidence was discovered independently of the applicant's admissions. [28] 2. Further, in deciding whether to impose a lesser sentence as a consequence of what was said to be assistance to the authorities, a sentencing judge is required to consider those factors prescribed by s 23(2) of the Crimes (Sentencing Procedure) Act and to come to a view that any discounted sentence is not "unreasonably disproportionate" to the nature and circumstances of the offence. [29] 3. Nevertheless, the provisions of s 23 of the Crimes (Sentencing Procedure) Act do not impose upon a court an obligation to impose a lesser penalty in the case of assistance; it permits a court so to do and requires a court to take into account mandatory considerations and not to impose a sentence that is unreasonably disproportionate, when so doing. 4. Further again, the provisions of s 23 of the Crimes (Sentencing Procedure) Act are not confined, necessarily, to assistance in relation to offences, where the guilt was otherwise unknown. It can, if the sentencing judge so determines, have work to do in circumstances of an admission to Police during the course of an interview, as is submitted by the applicant in these proceedings. However, ordinarily, the participation of an accused or suspect in a Police interview will not, in and of itself, warrant any discount under the provisions of s 23. [30] 5. As Garling J pointed out in Browning, supra, to provide a discount in every case where a suspect participates in an electronic interview would have the effect of punishing suspects who exercised their right to silence. It is important to realise that the provisions of s 23(1) of the Crimes (Sentencing Procedure) Act require the Court to look at the degree to which an offender has assisted or undertaken to assist and, therefore, unlike its Commonwealth counterpart, [31] it deals with the utility of the information as distinct from cooperation that may not necessarily advance the prevention, detection or investigation of the offence or facilitate the proceedings relating to the offence. 6. Further, a plea of guilty, in and of itself, ought not be the subject of a lesser sentence on account of the provisions of s 23 or those matters to which the Court referred in Ellis. So to do would be to double count the allowance or discount for the plea of guilty. 7. Ultimately, even though admissions made in an ERISP [32] and, in particular, an admission as to subjective intention [33] may allow a lesser sentence under the principles in Ellis or under s 23, the admission, as already stated, during the course of the ERISP, did not prove, beyond reasonable doubt, or at all, that the intention of the applicant was sexual intercourse. It proved that sexual intercourse was a possible outcome. 8. That which "proved" an intention to engage in sexual intercourse was the plea of guilty to the charge that was preferred. [34] 9. In the current proceedings, as already stated, the likelihood of the commission of a serious indictable offence occurring was an irrefragable inference available from the material already before the authorities and otherwise able to be proved beyond reasonable doubt. The admission of the possibility that the applicant intended to commit a serious indictable offence was, ultimately, of insignificant assistance. In those circumstances, this ground, also, must fail. 10. As a consequence of the foregoing, the applicant has not succeeded on either of the grounds raised on appeal. The foregoing does not rely upon the circumstances that the applicant did not raise the issue of assistance with the sentencing judge. 11. The Court should not lose sight of the fact that this is an appeal against sentence in which the Court is reviewing the exercise of a discretion. The jurisdiction of this Court is not, in circumstances such as this, to revisit every aspect that might have been raised, but was not. 12. The Court should not lightly entertain arguments that have not been raised below. On this occasion, I have done so, but I reinforce the observations of Johnson J in Zreika. [35] 13. The conclusion I have reached is that neither ground of appeal can succeed. As a consequence, I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed. 1. GARLING J: I agree with the orders proposed by Rothman J, and with his reasons for those orders. ********** Endnotes 1. Agreed Facts at [6], Exhibit 3 in the Sentence Proceedings, Appeal Book, p 33. 2. Agreed Facts at [22], Appeal Book, p 35. 3. Remarks on Sentence at [14], Appeal Book, p 18. 4. Remarks on Sentence at [45], Appeal Book, p 21. 5. Remarks on Sentence at [46], Appeal Book, p 22. 6. Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2. 7. GAS v the Queen (2004) 217 CLR 198; [2004] HCA 22 at [28]-[30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). 8. GAS v the Queen, supra, at [31]-[32]; Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2 at [47] (French CJ, Hayne, Kiefel and Bell JJ), and [56] (Gageler J). 9. Mulato v R [2006] NSWCCA 282 at [46] (Simpson J). 10. House v the King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ). 11. Ibid. 12. Hili v the Queen; Jones v the Queen (2010) 242 CLR 520 at 539; [2010] HCA 45 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), referring to a conclusion as to manifest error on appeal. 13. Barbaro, supra, at [28]. 14. Barbaro, supra, at [41]. 15. Barbaro, supra. 16. DBW v R [2007] NSWCCA 236 at [33] and [36]. 17. DBW, supra, at [33]. 18. Salafia v R [2015] NSWCCA 141 at [90] (Wilson J). 19. Remarks on Sentence at [8], Appeal Book, p 17. 20. Remarks on Sentence at [14], Appeal Book, p 18. 21. Remarks on Sentence at [20], Appeal Book, p 19. 22. R v Ellis (1986) 6 NSWLR 603; (Court of Criminal Appeal (NSW), 17 October 1986, unrep). 23. R v Ellis (1986) 6 NSWLR 603 at [605.D] (Street CJ, with whom Hunt and Allen JJ agreed); (Court of Criminal Appeal (NSW), 17 October 1986, unrep). 24. CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [41] (French CJ and Gageler J), [72] (Kiefel, Bell and Keane JJ); see also Ahmad v The Queen [2021] NSWCCA 30 at [24]. 25. R v SS [2021] NSWCCA 56 at [44]. 26. R v SS, supra; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. 27. R v Windle [2012] NSWCCA 222 at [36] (Basten JA). 28. R v SS, supra, at [84] (R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed) at [83] and [84]. 29. Crimes (Sentencing Procedure) Act s23(3). 30. Browning v R [2015] NSWCCA 147 at [123] (Garling J, with whom Gleeson JA and Johnson J agreed). 31. Crimes Act 1914 (Cth) s 16A(2)(h). 32. Howard v R [2019] NSWCCA 109. 33. Ibid at [5] (Fullerton J, with whom Macfarlan JA agreed). 34. Meissner v the Queen (1985) 184 CLR 132 at 157 (Dawson J). 35. Zreika v R (2012) 223 A Crim R 460; [2012) NSWCCA 44 at [81]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021