New South Wales Court of Criminal Appeal CITATION : REGINA v 'GLB' [2003] NSWCCA 210 HEARING DATE(S) : 17/07/2003 JUDGMENT DATE : 14 August 2003 JUDGMENT OF : Sheller JA at 1; James J at 2; O'Keefe J at 42 DECISION : Appeal dismissed CATCHWORDS : Criminal Law - sentence appeal - voluntary disclosure - special circumstances - guilty plea - utilitarian value LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v CDH (2002) NSWCCA 13 CASES CITED : R v Ellis (1986) 6 NSWLR 603 Rv Oades (2003) NSWCCA 155 Ryan v The Queen (2001) 206 CLR 267 PARTIES : REGINA v 'GLB' FILE NUMBER(S) : CCA 60156/2003 COUNSEL : TS Corish - Applicant D Frearson - Respondent SOLICITORS : D Humphreys - Applicant SE O'Connor - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0265 FILE NUMBER(S) : LOWER COURT HOCK DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60156/03 SHELLER JA JAMES J O'KEEFE J Thursday 14 August 2003 Regina v GLB Judgment 1 SHELLER JA: I agree with James J. 2 JAMES J: GLB applied for leave to appeal against sentences imposed on him in the District Court on 15 November 2002 by her Honour Judge Hock, after he had pleaded guilty to three charges of sexual intercourse with a child under the age of ten years, namely five years, and one charge of indecent assault on a child under the age of ten years, namely five years. The victim of all four offences was the same child, a daughter of the applicant. For each offence of sexual intercourse her Honour imposed a sentence of imprisonment for four years commencing on 15 November 2002, with a non-parole period of two years, and for the offence of indecent assault her Honour imposed a sentence of a fixed term of imprisonment of one year also commencing on 15 November 2002. Sexual intercourse with another person under the age of ten years is an offence under s 66A of the Crimes Act for which at the time the offence was committed the maximum penalty was imprisonment for twenty years. Indecent assault on a child under the age of ten years is an offence under s 61M(2) of the Crimes Act, for which the maximum penalty is imprisonment for ten years. 3 All of the offences for which the applicant was sentenced were committed on 12 or 13 October 2000, while the applicant, who was separated from the victim's mother, had temporary custody of the victim and her older sister. All of the three offences of sexual intercourse were committed by the applicant licking the child's vagina. The offence of indecent assault was committed by the applicant, while bathing the child, putting his hands between her legs and rubbing her vagina. 4 As the sentencing judge noted in her remarks on sentence the offences were unusual in the way in which they had come to light. On 16 October 2000 the applicant had voluntarily attended a police station and confessed to having kissed his daughter on the vulva. At the time he made this confession there had not been any previous complaint or report to the police that the applicant had committed any offence against his daughter. 5 On 16 October 2000 the applicant took part in a long electronically recorded interview by police. On that day the applicant, on the basis of the admissions he had made, was charged with an offence of aggravated sexual assault. After being charged, the applicant was released on bail. 6 In December 2000 police interviewed the applicant's daughter. The child told police that the applicant had licked her vagina on more than one occasion and had shown her magazines with pictures of women engaging in such behaviour. 7 After the interview of the applicant's daughter police sought a further interview with the applicant but the applicant declined to be interviewed again. 8 The applicant was admitted to the Cedar Cottage Rehabilitation Programme for sex offenders on 23 July 2001 but within a few days he declined to attend the Programme. 9 On 30 July 2001 the applicant took part in another electronically recorded interview by police. In that interview he disclosed three further offences committed by him on 12 and 13 October 2000. He also disclosed that he had committed at least one other indecent assault on the complainant 10 In the following year the applicant was again assessed as suitable for admission to a rehabilitation programme for sex offenders but he did not attend that programme. Finally, on 15 November 2002 the applicant was sentenced by her Honour. 11 In her remarks on sentence her Honour noted that the offences committed on 12 and 13 October 2000 were not isolated incidents. She found that there had been some premeditation, in that the applicant had admitted in the interview of July 2001 that he had shown pornographic magazines to the complainant on a number of occasions. Her Honour observed that the offences had not involved penile or digital penetration of the child but the objective seriousness of the offences was increased by the gross breach of trust and the very young age of the child. 12 In her remarks on sentence her Honour recorded some of the subjective circumstances of the applicant. He was thirty-seven years old at the time he was sentenced. He had no previous criminal convictions. He had been born with cerebral palsy which affected his mobility and dexterity. The applicant had never worked and had been receiving a Social Security disability pension since he was eighteen years old. He had met the woman he later married, when they were both members of a church group. However, he and his wife had separated about two years before the offences were committed. 13 Her Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, in that the applicant was thirty-seven years old, he had never been to prison before, he had physical disabilities and because of the nature of his offences his sentences would be served on protection. 14 Her Honour found that the applicant's pleas of guilty had been entered at the first available opportunity and that the applicant was therefore entitled to a 25 per cent discount for the utilitarian value of the pleas. 15 After referring to the utilitarian value of the applicant's pleas of guilty her Honour, in a passage in her remarks on sentence which is crucial to the determination of this application, said:- "A further significant matter which is evidence of remorse and which entitles the offender to leniency is the fact that he voluntarily disclosed his behaviour and thus it was as a direct consequence of his own actions that the offence on 13 October came to light. See Ellis (1986) 6 NSWLR 603. Quite obviously he did not initially make a complete confession to his activities and indeed he resisted a further interview after the police had spoken to his daughter in December 2000 and it then became apparent that this was not an isolated incident. However, given the tender age of the child and the well documented reluctance of victims of such conduct to come forward for many years, there is no question that the offences may have remained undiscovered for a long time, if not forever, had the offender not contacted the police as he did". 16 The grounds of appeal relied upon by counsel for the applicant were:- "1. The learned sentencing judge erred in failing to allow a sufficient and adequate discount in respect of those matters which were voluntarily disclosed by the applicant. 2. A less severe sentence was warranted in law". 17 It is convenient to deal with these grounds of appeal together, because the contention that a less severe sentence was warranted in law was based on the contention that an insufficient discount had been allowed for the applicant's voluntary disclosure of his guilt of the offences. 18 It was submitted by counsel for the applicant that, in the passage in her remarks on sentence which I have quoted, her Honour had wrongly limited the effect of the applicant's voluntary disclosure of his guilt of the offences to its being evidence of contrition on the part of the applicant. It was true that the applicant's voluntary disclosure of his guilt was evidence of contrition on his part. However, it was submitted, quite apart from its effect as evidence of contrition, the applicant's voluntary disclosure of his guilt entitled him to a separate discount or added element of leniency in sentencing, which was independent of his contrition. 19 It was further submitted that the applicant should have received a "significant" or "considerable" discount or added element of leniency by reason of his voluntary disclosure of his guilt and that the sentencing judge should in her remarks on sentence have made it clear that the applicant was receiving such a significant or considerable discount. 20 In support of these submissions counsel for the applicant referred to R v Ellis (1986) 6 NSWLR 603 at 604; the judgment of Kirby J in Ryan v The Queen (2001) 206 CLR 267; and R v CDH (unreported) 2002 NSWCCA 13. 21 On this application the Crown made various submissions. It was submitted that on 16 October 2000 the applicant had disclosed only one offence and had understated that offence as being merely an offence of indecent assault and that the subsequent disclosure by the applicant on 30 July 2001 had been made after the complainant had been interviewed by the police and had told police that she had been sexually assaulted by the applicant on a number of occasions. 22 It was further submitted by the Crown that, on a fair reading of the passage in her Honour's remarks on sentence, her Honour had not limited the effect of the applicant's voluntary disclosure of guilt to its being evidence of contrition and had considered what further leniency should be extended to the applicant under the principles stated in Ellis. 23 It was also submitted by the Crown that on this aspect of the appeal in Ryan Kirby J had been in a minority and this Court should apply the views, not of Kirby J, but of the majority and the majority had concluded that, although a sentencing judge should allow some discount for a voluntary disclosure of guilt, a sentencing judge was not obliged to allow a significant or considerable discount on this ground. 24 Having outlined the submissions made by counsel, I will proceed to determine the grounds of appeal. 25 In a well known passage in his judgment in R v Ellis Street CJ said at p 604:- "This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilty of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned". 26 It is clear that voluntary disclosure by a person of his guilt of an offence entitles that person to a discount or added element of leniency in being sentenced for the offence, which is separate from the leniency he is entitled to for having pleaded guilty or for having demonstrated contrition. However, I do not consider that, on a fair reading of the passage in her Honour's remarks on sentence, her Honour made the error which it was contended she had made, of limiting the effect of the voluntary disclosure of guilt by the applicant to its being evidence of contrition on the part of the applicant. Apart from the interpretation urged by counsel for the applicant, the opening words of the passage in her Honour's remarks are open to the interpretation that her Honour was saying that a further significant matter (apart from the early pleas of guilty) was that the applicant had voluntarily disclosed his guilt and that matter was evidence of contrition and entitled the applicant to leniency under the principles stated in Ellis. Her Honour's reference to Ellis and her discussion of the relevance of Ellis to the applicant's case indicate, to my mind, that her Honour correctly understood the principles in Ellis, was not limiting the effect of the voluntary disclosure of guilt to its being evidence of contrition and was allowing a separate discount under the principles in Ellis. 27 In Ryan v The Queen the sentencing judge had said in his remarks on sentence:- "The Crown's case against him in relation to many of his victims rests solely on his admissions to police. His admissions show his desire to make a complete disclosure of his conduct. These things go to his credit, show his contrition and entitle him to a discount in punishment". 28 In Ryan Kirby J said at pars 91-98:- "91. I turn to the specific errors which, in my opinion, are demonstrated in the reasons of the sentencing judge which the Court of Criminal Appeal failed to detect and correct. The first of these is that the sentencing judge failed to make substantial allowance for the appellant's acknowledgment of offences that were otherwise unknown to the authorities. 92. Clearly, it is in the public interest that the law should encourage offenders to acknowledge, and bring to official notice, offences not previously known to the authorities. In part, this interest derives from the saving of costs in the investigation and prosecution of criminal offences. In part, it is because it helps to improve the clear-up rate for crimes and vindicates the public process of punishing and deterring crime….". 93. The applicable public interest also includes a growing concern of modern criminal law and practice with a consideration that is of particular relevance to a case such as the present. I refer to enlarged attention to the position of the victims of crime. A confession by an offender allows a victim a public vindication. In the particular matter of serial criminal offences against children and young persons, a confession by the offender may also facilitate the provision, where appropriate, of community assistance to the victim or the payment of compensation and an extension of greater family understanding and support. Medical reports tendered in the appellant's sentencing proceedings indicated that some of the persons abused by him as boys were considered, years later, still to be in need of psychiatric treatment. 94. Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objectives of criminal punishment and thus of judicial sentencing. 95. In R v Ellis it was said that a 'considerable' or 'significant added' element of leniency is required in sentencing an offender in respect of offences disclosed that were otherwise unknown to the authorities. It is true that it was accepted in that case that the precise extent of that element will 'vary according to the degree of likelihood of that guilt being discovered…[and] guilt being established' against the person concerned. But take the present case as an illustration. Many victims later named by the appellant had not come forward earlier. This was despite local publicity and the widespread knowledge that inferentially would have followed the earlier proceedings before Judge Rummery. These facts tend to suggest that most of the offences to which the appellant confessed would not have come to light at all but for his confession. This inference is reinforced, in part, by the difficulties which police experienced in securing statements from most of the persons named by the appellant in his confession. In the sentence imposed on the appellant by Judge Nield, the greater part of the minimum term of incarceration concerned offences against persons that were previously unknown to the authorities Of those persons, most were either not found or did not make any statement to police. Therefore, in respect of the offences against those persons, the appellant's conviction and punishment effectively rested on his own admissions alone. 96. It follows that, in the words of McHugh J in AB v The Queen , (1999) 198 CLR 111 the appellant was entitled to 'considerable leniency because of his confession'. The sentencing judge did not express matters in those terms. Instead, the appellant's confession was simply considered in the context of the 'discount' to which a prisoner is ordinarily entitled for a guilty plea. There was no reference to R v Ellis . There was no indication that ' considerable' or 'significant added' leniency was allowed. The Court of Criminal Appeal did not suggest that there had been a reference to the particular consideration of 'lenience because of his confession'. Neither in the reasoning of the sentencing judge, nor in the resulting sentence, do I consider that the principle in R v Ellis was applied. It follows that, on the face of things, a specific error of sentencing principle has occurred which the appellant identified and the Court of Criminal Appeal failed to correct. 97. To say this is not to fall into a mistake of ascribing to the words of Street CJ in R v Ellis , or of McHugh J in AB v The Queen , a rigid or inflexible application. However, words represent images that conjure up ideas. The words ' significant' and ' considerable' are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as 'modest' or 'minimal' or perhaps the ever enigmatic 'appropriate'. For a long time now it has been the law – correctly in my view – that a 'significant' discount should be given in a case such as the present. That is the law that should have been applied in the sentencing of the appellant. 98. Lawyers often boast that, for the common law, even an hour of liberty lost without full lawful justification is intolerable. Where a difference between 'credit', on the one hand, and ' considerable' or 'significant added' lenience, on the other, may amount, in practical terms, to an increased loss of liberty not of hours but of months or years, there is no reason, in my respectful view, to decline appellate correction. This Court should uphold the appellant's appeal on this ground. He is entitled to a 'considerable' or 'significant' deduction in the sentence otherwise applicable by reason of his bringing to the notice of the authorities offences which were not previously known and which, but for his confession, would probably have remained unknown". 29 However, as was submitted by the Crown on this application, Kirby J was alone in considering that the appeal should be allowed on this ground. 30 At par 15 of his judgment McHugh J said:- "The appellant's argument based on the trial judge's failure to indicate that he was giving the appellant 'a significant added element of leniency' reflects a misunderstanding of the use that can properly be made of statements by judges in other cases. Judgments are not to be read as if they were Acts of Parliament. In Cassell & Co Ltd v Broome (1972) AC 1027 at 1085, Lord Reid pointed out that it is not the function of judges 'to frame definitions or to lay down hard and fast rules'. Their function is 'to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive'. The statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case". 31 At par 63 Gummow said that he agreed with Callinan J on this aspect of the appeal. At par 185 of his judgment Callinan J said:- "The appellant also submitted that Judge Nield failed to give due weight to the appellant's voluntary disclosure of offences other than those with which he had been charged. But Judge Nield did state that the appellant's admissions entitled him to a 'discount in punishment'. The Court of Criminal Appeal observed that Judge Nield had taken into account in favour of the appellant his disclosure of offences and 'gave him credit for that'. The appellant submitted however that he should have been given an identifiable, more substantial discount than the small unquantified one that in reality he must have been given by the sentencing judge. The appellant relied on R v Ellis in which the Court of Criminal Appeal said that voluntary confessions should lead to a 'significant added element of leniency'. The fact is that in this case the sentencing judge did make it clear that he would have imposed a greater sentence but for the disclosures made. For myself I do not think good reason will always exist for an abstention from stating the quantum of such a discount. In a case in which it is one of relatively few relevant 'subjective factors' it may be helpful to do so, and should not interfere with the intuitive process that sentencing involves. Not to identify the discount or credit for disclosure will not generally provide a ground for appeal however and certainly does not do so here". 32 At pars 152 and 153 of his judgment Hayne J said;- "152. A second issue was raised in the appeal to the Court of Criminal Appeal and to this Court. Here it was said that the Court of Criminal Appeal should have found that the sentencing judge did not take sufficient account of the fact that the appellant was sentenced for offences of which the authorities would not have known had the appellant not confessed to them. It is enough to say of this complaint that, as the Court of Criminal Appeal pointed out, the sentencing judge referred specifically to this matter as going to the appellant's credit, showing his contrition and entitling him to a discount in punishment. There is no substance in this contention. 153. The fact that the sentencing judge made no express reference to R v Ellis (to which he was referred in the course of the plea) and did not use an epithet like 'considerable' or ' significant' when referring to the credit he gave on this account does not demonstrate error. Error could be discerned only if it could be seen that the sentence imposed was excessive….". 33 On the basis of the judgments of the judges in Ryan who formed the majority on this aspect of the appeal, I consider that, although a sentencing judge should allow some discount for a voluntary disclosure of guilt, a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge's remarks on sentence that the judge has allowed a considerable or significant discount on this ground. 34 I consider that the opinions I have just expressed are in accordance with the judgment of Smart AJ in R v Oades (2003) NSWCCA 155, with which I concurred (see especially pars 16 to 24 of Smart AJ's judgment). The opinions I have just expressed are not in accordance with some recent two judge decisions of this Court, including R v CDH, in which, to judge from the judgments delivered, the members of the Court were referred to the judgment of Kirby J in Ryan but not to the judgments of the other members of the High Court in Ryan. 35 I have concluded that the sentencing judge did not make any of the specific errors alleged by counsel for the applicant. However, the question remains of whether, taking into account the applicant's voluntary disclosure of guilt and making an allowance for it and also taking into account all the other circumstances of the case, the sentences imposed by her Honour were manifestly excessive. 36 As noted by her Honour, the offences were objectively serious and circumstances aggravating the objective seriousness of the offences included some premeditation on the part of the applicant, the very young age of the victim, that the offences had been committed in breach of a relationship of trust and that the offences were not isolated incidents. 37 It is necessary to take into account, as her Honour did, the applicant's early pleas of guilty, his contrition, that he had no previous criminal history and that he had physical disabilities which would make the conditions of his custody more onerous. 38 The applicant was entitled to a discount or added element of leniency in sentencing, by reason of the disclosures he made on 16 October 2000 and 30 July 2001. Her Honour found that, if the applicant had not gone to the police, the offences the applicant disclosed might have remained undiscovered for a long time, if not forever. On the other hand, the disclosure made by the applicant on 16 October 2000 was a qualified, and not a full, disclosure and the further disclosures made by the applicant on 30 July 2001 were made after the complainant had been interviewed by police and had made allegations against the applicant. 39 I consider that in the circumstances of the present case the applicant was entitled to a substantial, in the sense of a not insignificant, discount for his voluntary disclosure of offences he had committed. It would appear to me from her Honour's remarks on sentence and the relatively short length of the sentences passed by her Honour that her Honour did allow such a discount. 40 In my opinion, taking into account the applicant's voluntary disclosures of guilt, the sentences imposed by her Honour were within the range of a proper exercise of her Honour's sentencing discretion and were not manifestly excessive. 41 In my opinion, leave to appeal should be granted but the appeal against sentence should be dismissed. 42 O'KEEFE J: I agree with James J ********** Last Modified: 08/28/2003 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. 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