Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Herbert v R [2015] NSWCCA 172 Hearing dates: 29 June 2015 Decision date: 29 June 2015 Before: Hoeben CJ at CL at [1]; R A Hulme J at [2]; Campbell J at [61] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentences imposed in the District Court on 18 April 2013 quashed. 4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months to date from 29 October 2011. The non-parole period will expire on 28 January 2018 at which time the applicant will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – three offences of aggravated sexual intercourse without consent – whether sentencing judge erred in failing to allow separate discount for voluntary disclosure of guilt – consideration of "Ellis discount" principles – ground upheld – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) s 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23(3), 53A Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Ellis (1986) 6 NSWLR 603 R v Gorman [2002] NSWCCA 516; 137 A Crim R 326 R v Hasan [2005] NSWCCA 21 R v LG [2012] NSWCCA 249 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Windle v R [2012] NSWCCA 222 Zhang v R [2011] NSWCCA 233 Category: Principal judgment Parties: Joshua Herbert (Applicant) Regina (Respondent) Representation: Counsel: Mr E Ozen (Applicant) Ms N Williams (Crown) Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions File Number(s): 2011/345714 Decision under appeal Court or tribunal: District Court Date of Decision: 18 April 2013 Before: Conlon SC DCJ File Number(s): 2011/345714 Judgment 1. HOEBEN CJ at CL: I agree with R A Hulme J. 2. R A HULME J: Joshua Herbert ("the applicant") applies for leave to appeal against sentences imposed in the District Court at Wollongong by his Honour Judge Conlon SC on 18 April 2013 for three offences of sexual intercourse without consent in circumstances of aggravation, namely the infliction of actual bodily harm. 3. These offences are contrary to s 61J(1) of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of imprisonment for 20 years. There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 10 years. 4. The applicant was sentenced to a total term of imprisonment for 10 years with a non-parole component of 7 years. This involved partial accumulation of individual sentences of 6 years, 6 years and 8 years. The first sentence was specified to date from 29 October 2011. The applicant will become eligible for release on parole on 28 October 2018. 5. Leave is sought to appeal on the following grounds: 1 The sentencing judge failed to allow a separate discount for the applicant's assistance to authorities (an "Ellis Discount") 2 The sentencing judge erred in the way he structured the sentences Facts 1. There was an agreed statement of facts which disclosed that on 27 October 2011 the victim, a 55 year old woman, was walking along a beach at Callala Bay in Jervis Bay, something she had done regularly in the recent past. The applicant approached her from behind, grabbed her and put a hand over her mouth. He punched her twice to the face as he told her to stop screaming. She fell to the ground and he dragged her towards some bushes. She pleaded, "I've got grandchildren. Please don't kill me". He told her he would not if she did what she was told. 2. He removed her pants, pulled her legs apart and digitally penetrated her vagina. She could smell alcohol on his breath. He said, "This is better than your poofter husband isn't it?" and repeated, "Isn't it, isn't it". Fearing for her safety she agreed. He told her to "Stop your fucking crying". He licked and sucked her genital area and then put his hands around her neck applying pressure to her throat with his thumbs. She thought she was going to die and soon lost consciousness. 3. When she regained consciousness she opened her eyes to see his face a short distance from hers. He said, "I'm sorry, I didn't mean to do that. I shouldn't have done that". She pleaded with him to let her go, swearing that she would not report what had occurred. He said, "You better not". She said, "I swear on my grandchildren's lives that I won't" and he responded by threatening her, "Fuck your grandchildren. Be worried about your children". He told her to count to 100 before she got up. She did so and when she got up she saw him further down the beach, ankle deep in the water. 4. The victim quickly made her way home and the matter was reported. Police and ambulance officers arrived a short time later. She was examined at hospital and the nurse noted that she had significant facial swelling and bruising. Her right ear canal was swollen to the extent that the canal could not be visualised. There was also extensive bruising and a number of abrasions to her head, neck and arms. There was a red abrasion to the posterior surface of the vaginal entrance which the nurse said was typically caused by stretching or friction. 5. The applicant voluntarily attended a police station two days later and told them that he had seen numerous media articles and reports on Facebook about the assault on the victim and became concerned that he may have been involved. He said that he had consumed a substantial amount of alcohol on the day as well as a number of pain killing tablets (Codeine). He said he had a history of alcohol and prescription drug abuse and experienced "black-outs" during which he would fly into a rage and become violent and aggressive. He said that after this occurs he feels exhausted the following day and this is how he felt the day after this incident. He did not remember the incident but when asked if he thought he committed the offences he said, "Yes, I think I did it". He had experienced nightmares or flittering visions of seeing a lady getting grabbed from behind and he was not sure if these were dreams or memories. 6. The applicant consented to police searching his home. They found two letters he had written to his girlfriend and the son of a friend apologising for his actions and indicating that he thought he would be "going away for a while". The applicant's DNA was subsequently detected in semen recovered from the victim's vagina. 7. A victim impact statement, which was tendered without objection, related the substantial psychological trauma the victim continued to experience as a result of the applicant's conduct. The applicant's personal circumstances 1. The applicant was born in 1984 and is now aged 30. 2. He has a criminal history which is of no present significance (low-range PCA in 2006 and assault occasioning actual bodily harm in 2008, in respect of both of which he was fined). 3. Amongst the material tendered to the sentencing judge were two reports by Dr Richard Furst, forensic psychiatrist, and a letter from the applicant's mother. The applicant gave evidence at the sentencing hearing. 4. He had an unremarkable upbringing. He was a promising junior rugby league player. His parents separated when he was 17. He tried out to play rugby league professionally but was unsuccessful. He stopped playing as a result of the increasing frequency and severity of headaches he was experiencing and he did not want to risk being knocked unconscious again. 5. The applicant commenced drinking at the age of 16 when playing first grade in a country rugby league side. By the age of 19 he was drinking a substantial amount on a daily basis. 6. At the time of the offences he was in a relationship and he and his partner had a 3 year old daughter. He had a 6 year old daughter from a previous relationship. He told Dr Furst that he had struggled with separations in his relationships, particularly when he and his current partner had separated two months before the birth of their daughter. He had carried out two attempts on his life at that time; one by overdosing on medication and the other by carbon monoxide poisoning. 7. The applicant had received treatment for depression. In 2011 he had been observed to have ongoing depression with symptoms of hopelessness, insomnia and agitation. He had moved with his family to Callala Bay early that year but he remained depressed and reported being stressed, tired and had trouble sleeping. Around the time of the offences he was working in two jobs as a cleaner but quit one the week before. Dr Furst said that this workload only added to his chronic tiredness and low mood. 8. The applicant said in his evidence that in the week leading up to the day of the offences, after having ceased work in one job and having his wages cut back in his second job he "really started pounding the drink and the drugs and the codeine too". On the day of the offences he had consumed alcohol and codeine and the drug known as "ice" as well. Findings by the sentencing judge 1. The learned judge accepted that the offences were not planned or premeditated; "it would seem that the attack was a spur of the moment decision by the offender under the influence of alcohol and drugs". However, he noted, it was swift and violent. The victim's physical injuries were not long lasting but the psychological and emotional impact was such that she "will continue to suffer consequences well into the future". 2. The applicant's intoxication by alcohol and drugs was not regarded as a mitigating factor but served to provide a possible explanation "as to how his judgment was impaired and led to this appalling out of character conduct". 3. His Honour regarded the offences as "most serious". 4. The applicant's remorse was accepted to be genuine; indeed the judge said: "I have presided over so many similar sentence proceedings yet I have not seen a more contrite offender." 1. His Honour accepted that the applicant had good prospects of rehabilitation. 2. The utilitarian value of the applicant's early pleas of guilty was rewarded with a 25 per cent reduction of the sentences imposed. 3. As to the issue of the applicant having voluntarily attended the police station to disclose his responsibility for the offences, his Honour said: "In accordance with the submissions of Mr Pearsall (counsel for the offender) I have taken into account the fact that it was the offender himself who came forward and handed himself in to the police. Whilst he was given the opportunity of seeking legal advice he declined and proceeded to voluntarily take part in the police interview. That factor does reflect well in respect of his contrition. In my view it also has a bearing on his prospects of rehabilitation. However, I do not believe that it rises to a level where the offender would be entitled to a 'significant added element of leniency' as per an Ellis type discount. This was a small community. There was an immediate complaint and investigation launched and there was, of course, the photograph of the offender fishing at the beach on the afternoon in question." 1. The judge referred to the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and said that he was mindful of the legislative guideposts provided by the maximum penalty and the standard non-parole period. 2. It was determined that the sentences for the individual offences should be partially accumulated so as to reflect appropriately the totality of criminality. This was said to be sufficient reason to find special circumstances so as to vary the statutory ratio in relation the non-parole and parole periods. (The overall non-parole component is 70 per cent of the total term.) Ground 1 – failure to allow a "separate discount" for assistance to authorities (an "Ellis discount") 1. An "Ellis discount" is a reference to R v Ellis (1986) 6 NSWLR 603 where Street CJ said (at 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. … 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 guilt 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." 1. The applicant conceded that the sentencing judge did take into account his voluntary attendance at the police station and disclosure of his responsibility for the offences but submitted nonetheless that there was error in not taking this into account in the way outlined in R v Ellis. 2. It was submitted that the applicant was not a suspect. It was not a case in which he knew he was going to be found out. His motivation for handing himself in was a realisation that he may have been involved, not that he feared he was going to be caught. 3. Counsel for the applicant accepted that the impact of such conduct may vary from case to case. An example of a case in which there was no need to afford significant leniency was Zhang v R [2011] NSWCCA 233 where there was a real likelihood that guilt would have been established without the offender's admission. It was submitted that this was not the case for the applicant. 4. It was also submitted that an "Ellis discount" is not reserved solely for cases involving a confession of guilt for offences police did not know occurred. In Windle v R [2012] NSWCCA 222, Basten JA said (at [36]) that a voluntary disclosure might include (a) revelation of an offence unknown to the authorities; (b) revelation of the offender's identity; or (c) revelation of an aspect of the offending unknown to the authorities. His Honour added: "The extent of the appropriate element of leniency must depend on the extent of the voluntary revelation." In that case the victim had told police of the offence and the offender; it was only that the offender had assisted police to prove the necessary element of intention that entitled him to a reduction of sentence for assistance. 5. Counsel argued that the applicant's assistance fell into the second of the categories listed by Basten JA. It could not be assumed, as the sentencing judge did, that the applicant's responsibility for the offences would have been discovered by police because it occurred in a small community; an investigation was being carried out; and that the police had a photograph of the applicant fishing at the beach on the afternoon in question. The photographs, it was submitted, were of such poor quality that it was not open to conclude that the applicant would have been identified. The community of Callala Bay might have been a small one but there were towns nearby; the larger town of Nowra was 20 minutes away; and it was a popular tourist area. 6. It was also submitted that even if it could be supposed that investigations might eventually reveal a person's involvement in some offending behaviour, this did not disentitle the offender from a "significant amelioration" of the otherwise appropriate sentence for promptly volunteering a confession. That was the situation in R v Hasan [2005] NSWCCA 21 where the offender received "some recognition and leniency". 7. Counsel also identified "a very strong public interest" in an offender such as the applicant coming forward, referring to Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [91]-[98] 8. In short, the applicant's submission was that he was entitled to a significant added element of leniency for his confession and the judge was wrong to dismiss this as a mitigating factor in the way that he did. 9. The Crown submitted that the judge did take into account the applicant's voluntary disclosure of his guilt by finding that it reflected well in respect of his contrition and his prospects of rehabilitation. It was submitted to have been open to the judge to take into account that the applicant's guilt would be discovered in determining that it was inappropriate to allow a further degree of leniency. Although he was not a suspect at the time, the police had other evidence both available at the time and to come, including DNA evidence which would have proved the applicant's guilt without any admissions on his part. 10. The Crown referred to s 23(3) of the Crimes (Sentencing Procedure) Act which is to the effect that a lesser penalty imposed to take into account an offender's assistance to authorities must not be unreasonably disproportionate to the nature and circumstances of the offence. With the 25 per cent discount for the plea of guilty and the finding of special circumstances, it was submitted that any further reduction would have rendered the ultimate sentence "too far out of touch with the circumstances of the offences". Consideration 1. In Ryan v The Queen, McHugh J said (at [15]): "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. 1. There are four components in the impugned passage of the sentencing remarks (see above at [27]): The judge said he had "taken into account the fact that it was the offender himself who came forward and handed himself in to the police". This reflected well in respect of his contrition. It also had a bearing on his prospects of rehabilitation. It did not rise to a level where the offender would be entitled to a "significant added element of leniency", implicitly because his responsibility would likely have been detected. 1. I cannot accept the Crown's reference to the police having evidence such as the identification of the applicant's DNA which would have proved the offence without his admissions. The point is that at the time he went to the police station there is no suggestion that he was a suspect. And the DNA evidence only arose because he agreed to provide a sample when he went to the police station. There was no suggestion that he had previously provided a sample with which a comparison could have been made. 2. I also cannot accept the Crown's reference to the finding of special circumstances in the submission about the potential for unreasonable disproportion if the applicant had been allowed any further leniency. A finding of special circumstances, of course, only affects the non-parole component of a sentence, not the total term. 3. There was ample evidence of the applicant's remorse and his good prospects of rehabilitation aside from his voluntary disclosure of his guilt. In other words, he was entitled to have those matters of mitigation taken into account in his favour in any event. 4. I cannot see that the sentencing judge has allowed the applicant any benefit over and above those two matters for his relatively prompt attendance at the police station and disclosure of what he thought might have been his guilt. There should have been some recognition by way of affording further leniency. Even if it could be said that the police investigation would at some stage have detected the applicant's responsibility (a subject about which the evidence is far from clear and involves a degree of speculation), it would be contrary to the public interest of encouraging offenders to come forward to deny him any practical benefit for having done so. And it would not necessarily have led to a sentence that was unreasonably disproportionate to the nature and circumstances of the offences. 5. I would uphold this ground. Ground 2 – error in the manner of structuring the sentences 1. Whilst acknowledging the discretion involved, the applicant's counsel submitted that it was not appropriate for the judge to partially accumulate the sentences in the way he did. It was submitted that the three forms of intercourse were "not just a continuum but really one continuous attack on a single victim". Reference was also made to the circumstance of aggravation, the infliction of actual bodily harm, being one and the same in respect of the three offences and the fact that they occurred within a very short time of each other. 2. In short, it was submitted that the accumulation by one year each of the second and third sentences was inappropriate and resulted in a total sentence that was unduly excessive. The submissions went further and contended that all of the sentences should have been ordered to be served concurrently. 3. The Crown placed particular reliance upon the discretionary nature of a decision as to the concurrency or accumulation of sentences. It referred to there being no rule that offences committed on the same day, or as part of the same criminal enterprise, should attract concurrent sentences. It was submitted that, having regard to the nature and seriousness of each of the offences, it was open to the judge to partially accumulate the sentences where the sentence for one offence could not comprehend and reflect the criminality of another. Consideration 1. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation. See Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]; and R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]. 2. In this case it cannot be accepted that the applicant should have received the same sentence for having committed one offence as he should have received for committing all three of them. Put another way, it cannot be said that each offence did not make some additional contribution to the totality of the applicant's criminality. 3. The partial accumulation of sentences for multiple sexual assaults committed on the one victim on the same occasion has been held to open to the discretion of a sentence judge: R v LG [2012] NSWCCA 249. In R v Gorman [2002] NSWCCA 516; 137 A Crim R 326 it was held to have been erroneous for there to have been no accumulation in such a case. 4. In my view, it was open to the sentencing judge to partially accumulate the sentences and so this ground should be rejected. Re-sentencing 1. Evidence of events which have transpired since the applicant was sentenced was provided in the form of affidavits affirmed by him and by his solicitor. They attest to the fact that he has been gainfully employed until he commenced full-time studies. He is presently engaged in tertiary preparation studies with a view to enrolling in a science degree course. He receives visits and retains family support. He has been of good behaviour. He has plans for his future following release. 2. I do not believe any of this further evidence impacts upon this Court's sentencing discretion if it proceeds upon a foundation of the findings made by the sentencing judge that the applicant was genuinely remorseful and has good prospects of rehabilitation. 3. Included in the material annexed to the solicitor's affidavit are the remarks on sentence by Conlon DCJ when he sentenced the applicant on 11 April 2014. He imposed sentences of 6 months for each of three offences of having sexual intercourse with a child aged between 14 and 16 and a sentence of 3 months for an offence of inciting an act of indecency. Those offences were committed in 2005. They occurred shortly before the victim's 16th birthday. They only came to light after his arrest for the present matter. 4. Conlon DCJ ordered that the sentences be served concurrently from the date of imposition. He took that course because he said that if the applicant had appeared for sentence before he committed the offences at Callala Bay on 27 October 2011 he would have imposed something other than full-time custodial sentences. He had found the offences were "very much towards the lower end of the scale (of seriousness)." 5. Given the unusual circumstances of those other offences they do not appear to impact upon the assessment of sentence here. 6. The present offences were found by the sentencing judge to be "most serious" and I agree with that assessment. However, having regard to all of the facts and circumstances, including the voluntary disclosure of guilt, appropriate sentences for each of the offences are 5 years 3 months (counts 1 and 2) and 7 years (count 3). I would notionally accumulate them to reflect the totality of criminality. The finding of special circumstances should be maintained for the same reason given by the primary judge. ORDERS: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentences imposed in the District Court on 18 April 2013 quashed. 4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months to date from 29 October 2011. The non-parole period will expire on 28 January 2018 at which time the applicant will become eligible for release on parole. 1. CAMPBELL J: I agree with R A Hulme J. ********** Amendments 11 March 2021 - [42] Amended paragraph reference 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: 11 March 2021