Panetta v R

1. [1]

   WARD JA: I agree, for the reasons given by Adams J, that leave to appeal should be granted and the appeal upheld on the basis that the sentencing judge erred in failing to quantify the discount allowed for Mr Panetta’s assistance to the authorities.

2. [2]

   As to the re-sentencing exercise that this Court is therefore now required to undertake in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601; 238 A Crim R 134, I have had the advantage of reading in draft the judgments of each of Adams and Bellew JJ. Where their Honours depart, in essence, is as to the appropriate starting point before application of the respective discounts that must be applied in the present case and as to the appropriate discounts themselves. Each of their Honours considers that the cumulative operation of the respective discounts he would allow for Mr Panetta’s plea of guilty and his considerable assistance to the authorities would produce an overall sentence that was unreasonably disproportionate to the nature and circumstances of the offence; and hence would apply a reduced combined discount.

3. [3]

   The nature and circumstances of the offence and the subjective circumstances to be taken into account are set out in Adams J’s judgment and do not need here to be repeated.

4. [4]

   For the reasons expressed by Bellew J, I am of the opinion that the appropriate sentence before the application of any discount is 24 years. Though the murder was not premeditated, this was a brutal attack visited upon the deceased and the seriousness of the offence was aggravated by the steps that Mr Panetta then took to conceal his crime, including burying the body.

5. [5]

   I also agree with the conclusions Bellew J has reached as to the appropriate discounts to reflect the guilty plea (10%) and the high level of assistance to authorities (50%). As to the former, the guilty plea was entered only shortly before the commencement of the trial. Some of the delay in the entry of that plea was attributable to issues in relation to Mr Panetta’s legal representation and the need to obtain a psychiatric assessment of Mr Panetta. No criticism is made of the course taken by the defence in that regard. Nevertheless, when considering the utilitarian value of a plea the primary consideration is the timing of the plea (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104).

6. [6]

   As to the latter, I note the rationale for reducing a sentence by reason of assistance to the authorities as summarised in Isaac v R [2012] NSWCCA 195 and I agree that considerable leniency must be extended to Mr Panetta, who voluntarily disclosed the offence in circumstances where it was not known that a crime had been committed, let alone that he had or might have had any involvement in that crime, and whose assistance led to the discovery of the deceased’s remains. I further accept that, as is implicit in Adams J’s observations (at [49]), this is an unusual case. Nevertheless I agree with Bellew J that a 50% discount is appropriate for the assistance rendered by Mr Panetta to the authorities.

7. [7]

   As Bellew J has adverted to at [76], the view has been expressed that the constraint imposed by s 23(3) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) will not generally be met by allowing a combined discount of more than 50% (Z v R [2014] NSWCCA 323 at [33] per McCallum J). However, that does not mean that in an appropriate case the combined discount could not be more than 50%. In the present case a combined discount of 60% in my view appropriately reflects both the utilitarian value of the guilty plea and the high level of assistance provided by Mr Panetta in the very unusual circumstances of this case.

8. [8]

   However, I also consider that the operation of a 60% combined discount would result in a sentence unreasonably disproportionate to the nature and circumstances of the offence and that a reduction in the combined discount is required. I accept that views may reasonably differ as to the appropriate reduction for this purpose. Having considered the matters raised by Adams J, I nevertheless consider that the combined discount should be reduced to 50%, with the result that the total term of imprisonment should be 12 years, comprising a non-parole period of 9 years and an additional term of 3 years. I therefore agree with the orders proposed by Bellew J.

9. [9]

   ADAMS J:

Introduction

1. [10]

   On 14 November 2013 the appellant (since the appeal is allowed, it is convenient to so term him) was convicted on his plea of murdering Muhammed Shafique on 18 September 2008. He was sentenced on 7 March 2014 to a term of 17 years imprisonment with a non-parole period of 12 years and 9 months commencing on 12 November 2010. He seeks leave to appeal to this Court against his sentence. The maximum penalty for murder is imprisonment for life. A standard non-parole period of 20 years applies. These penalties are guideposts for the purposes of sentence, although it is, in substance, agreed that the objective seriousness of the offence is somewhat less than in the middle of the range.

2. [11]

   The grounds of appeal are as follows –

Factual background

1. [12]

   An agreed statement of facts was tendered without objection, from which the narrative in the reasons of the learned primary judge was largely drawn. Given that his Honour’s judgment has been published, I do not propose to set out the facts in the same detail and have confined myself to what I regard to be the most salient features. (I have mostly not indicated quotations, for ease of reading.)

2. [13]

   In 1987 the victim married Sharon Shafique but, in 2004 they separated, Sharon remaining at the family residence, with the children at first but they later went to live with the deceased. In 2007 the couple were divorced and, late that year, Ms Shafique commenced an intimate relationship with the appellant (whose intellectual functioning was between low average to average range – this matter is further discussed when dealing with subjective features), who believed Ms Shafique was 19 years old although she was in fact 39 or 40 years of age. She had introduced her two children to him as her younger brother and sister, telling them not to say that she was their mother and that they should refer to her by the name “Nadia” when they were in his presence.

3. [14]

   The victim was killed by the appellant on 18 September 2008 but both his death and the appellant’s involvement only came to light when he attended Dee Why police station on 12 November 2010 and confessed. His admissions to the police about the circumstances were not the subject of any dispute and may be accepted, although some details, for example concerning movements of the victim’s car on 18 September 2008, are not completely reliable (accepted by his Honour as possibly resulting from the lapse of time and the appellant’s distressed state when being interviewed). The appellant told police about commencing his relationship with “Nadia” who told him that the deceased was a bad person associated with the Taliban and was involved in fraud and criminal activity. He said she told him that the police had not been able to find any evidence against him and that he decided he would attempt to gather evidence against him to give to the police and started to follow him. For this purpose he purchased an electronic tracking device in early June 2008, which he attached to the deceased’s vehicle and he was able to use his computer to track its movements. On 18 September 2008 the appellant drove his van to the underground car park of the residential unit block where the victim had a “business office” and waited for him to arrive. Sometime after 2pm the victim drove his vehicle into the car park and parked alongside the appellant’s vehicle. When he alighted, the appellant grabbed him and attempted to put him in the rear of his van, intending to abduct and rob him, using cable ties that he had brought with him. The primary judge set out the following extracts from the transcript of the appellant’s interview –

4. [15]

   The appellant placed the victim’s body in the back of his van, found a hose and washed down the blood on the ground where the attack occurred. He panicked and, taking a briefcase from the victim’s vehicle, drove his van to a location near Campbelltown where, after dark, he buried the body in bushland. He disposed of the briefcase and contents and stole $1,400 from the victim’s wallet before discarding it. He burnt the documents that were in the briefcase. He had previously smashed the victim’s mobile phone and put it in a rubbish bin because he was worried about the phone being traced.

5. [16]

   The appellant told police that, at the time of the offence, he had alcohol in his system, having drunk two cans of Johnny Walker and coke.

6. [17]

   The appellant told police that he had broken up with “Nadia” in the months following the incident but frequently contacted her. He said he had come forward due to the overwhelming stress and anxiety that the matter had caused him, saying, “I couldn’t live with this anymore”. When speaking with police and being interviewed he appeared to be highly distressed.

7. [18]

   The area identified by the appellant as the place of burial was excavated and skeletal remains were located. The hands were cable tied to the rear. Dental records identified the body as being that of Muhammed Shafique. Information from the autopsy was limited due to the decomposition of the body. Two large fractures were located on the right side of the head consistent with the appellant’s admissions but the number of blows could not be accurately determined.

8. [19]

   Police confirmed that Ms Shafique had previously claimed the victim was involved in criminal activities, on 24 January 2007 having provided information to the Australian Federal Police alleging his involvement in fraud and possible terrorist activities. After his murder, on 24 October 2008, the New South Wales Police Fraud Control and Investigations “dob in line” was called by a female describing herself as “Claudia” (believed by police to be Ms Shafique) suggesting that he was a member of the Taliban involved in people smuggling. Investigations have not found support for her claims. This information provides independent support for the appellant’s account of his motive.

9. [20]

   Prior to the appellant handing himself in, there was no suspicion held by police that the victim’s disappearance was suspicious, let alone that he had been murdered, and the appellant was not a suspect in any way concerning his disappearance. As the primary judge found, without the appellant’s admissions to police there was no prospect of the murder or of the appellant’s involvement in it coming to light. Nor, in the absence of his taking police to the burial site, was there a prospect that the body would be located.

Subjective features

1. [21]

   Tendered on the sentence proceedings was the appellant’s criminal record, together with reports of Anita Duffy (psychologist) and a number of testimonials. His Honour also had available to him (by consent) reports of Drs Westmore, Allnut and Reid (psychiatrists) and Dr Susan Pulman (psychologist). The effect of these reports (as to which there is no issue) was summarised in the reasons of the primary judge as follows. The appellant was aged 35 years at the date of sentence, one of four sons, having two older brothers and a non-identical twin brother. He was living at home with his parents until his imprisonment. He told Ms Duffy that his parents were “very excitable and negative people” and remembered fights and arguments between them since he was young. Although he was not physically abused, he was continually on edge by their fighting and his father would often scream at him. He completed school at year 10, leaving when he was 16 years of age, then worked in a factory and later at a fruit market. He has also worked as a builder’s labourer and was self-employed as a handyman. He has always been employed since leaving school. Although he told Drs Allnutt, Reid and Pulman that he had been smoking marijuana and using amphetamines since he was 14 or 16, he told Ms Duffy he had never used illicit drugs. He told all of those who examined him that he started drinking at about 14 or 16, often to intoxication. The relationship he had with Sharon Shafique was his first serious relationship. He was with her for two to three years and they lived together for about 12 months. Ms Duffy administered various psychometric tests. The Wechsler Abbreviated Scale of Intelligence placed him in the Low Average range at 85 and his scores in the Vocabulary and the Similarities subtests indicated relatively limited word knowledge, verbal expression and a tendency to think in rather concrete terms. Testing of basic personality characteristics revealed a strong Depressive feature as well as Dependent, Passive/Aggressive and Self-Defeating traits. Ms Duffy said –

2. [22]

   On other scales, the appellant’s results lay just below significance on measures of Thought Disorder and Major Depression.

3. [23]

   Dr Allnutt noted that, when the appellant had confessed to the police, he had demonstrated significant symptoms of depression in the wake of the incident, according to him, “as a consequence of unresolved feelings of guilt” but by the time he came to be examined, these symptoms had ameliorated somewhat. He was taking antidepressants daily. He experienced mild panic attacks that had started when he was incarcerated. Dr Pulman, a clinical neuropsychologist and forensic psychologist, administered a number of tests. These showed his current intellectual functioning fell within the low average to average range at the fourth percentile. His General Ability Index fell in the low average range at the tenth percentile. There was some variability in the sub-test scores with his performance varying from Borderline on the task of non-verbal conceptual reasoning to Superior in the task of immediate attention span. His scores on the Depression, Anxiety and Stress Scales (DASS-21) were in the Extremely Severe range but these were inconsistent with his presentation during interviews. She did not find that he was not endeavouring to do his best, although Dr Reid found that the score achieved by the appellant showed he was not performing to the best of his ability. Dr Reid found that the appellant scored in the extremely low range for non-verbal intellectual functions (63), placing him at the first percentile for persons of similar age. He presented with depressed mood, was slow in his responses, his affect was flat and he offered little in the way of spontaneous speech. Dr Reid thought that the appellant appeared to have longstanding problems with attention, low self-esteem and a past history of drug and alcohol abuse. He was of the opinion that the appellant’s depression was having a significant impact on his cognitive abilities.

4. [24]

   As the primary judge noted, some caution needs to be adopted concerning these reports since, except for Ms Duffy’s, they were assessments designed to see whether the appellant was fit to stand trial. Nevertheless, his Honour concluded that, in general terms, they disclosed fairly similar pictures of the offender and were informative.

5. [25]

   Ms Duffy had noted that the appellant expressed remorse and regret about his actions. His Honour found that, although the appellant did not give evidence and therefore such expressions needed to be considered with care, they were entirely consistent not only with his confession but also with what had happened since. His Honour stated that his observations of him during the sentencing hearing served to confirm that he was extremely remorseful for what he had done.

6. [26]

   As to the appellant’s criminal history, this was inconsequential and did not disentitle him from being considered to be a person of prior good character.

Findings as to the circumstances

1. [27]

   The primary judge found that the appellant did not set out with the intention of killing the deceased but, rather, to abduct and rob him. It was whilst he was trying to restrain the deceased that the latter obtained a hammer and struck the appellant, at which point he grabbed the hammer and hit the deceased repeatedly in the head. His Honour thought that this was “perhaps about 15 times”, an approximation taken from the appellant’s admissions. It will be recalled that two fractures, indicating blows of considerable force, were found on autopsy, the force of the other blows is unknown. His Honour concluded that the appellant must have intended to cause grievous bodily harm but could not be satisfied beyond reasonable doubt that he intended to kill the deceased, rather, he was trying to subdue him to further his purpose of abducting and robbing him. The assault arose spontaneously without planning or premeditation.

2. [28]

   The primary judge accepted that the actions that led up to the murder (and, as I understand it, the murder itself) were unlikely to have occurred had it not been for the low intelligence and personal problems suffered by the applicant, who was obviously vulnerable and suggestible. His Honour pointed out that Ms Shafique, who provided the false information about the victim, was his first and only serious relationship and, in addition to his gullibility, he was (it appeared) endeavouring to please her, bearing in mind that he had no prior knowledge of him. His Honour summed up the position by observing “the deceased was an entirely innocent man who had become the victim of his ex-wife's obsession or vindictiveness or both, and the stupidity and criminality of the offender.” So far as subjective features are concerned, I have mentioned the psychiatric and psychological material that was before the primary judge which, in substance, his Honour accepted. His Honour concluded that he had good prospects of rehabilitation.

3. [29]

   None of these matters are disputed.

Ground of Appeal 2

1. [30]

   Since I am of the view that this must be allowed, with the consequence that the sentence is effected by an error of law, the Court must itself resentence the appellant (see Kentwell v The Queen [2014] HCA 37; 252 CLR 601; 238 A Crim R 134). The Court must therefore also consider for itself the appropriate discount to be allowed for the appellant’s plea of guilty and the assistance to the authorities arising from his disclosure of the offence (the issues raised by grounds 1 and 3) as well as the significance of the evidence concerning the appellant’s intellectual functioning (raised by ground 4). It is therefore not necessary to deal with these grounds.

2. [31]

   This ground of appeal is based on the submission that the primary judge did not comply with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which, so far as may be relevant, is as follows –

3. [32]

   Section 23(4), (5) and (6) were inserted in the Act in 2010, becoming effective on 14 March 2011. Section 101A was in the Act at the time, having been inserted in 2002, effective from 17 February 2003. The purpose of s 23(4) was generally understood to be that as explained in the judgment of Johnson J in R v Ehrlich [2012] NSWCCA 38 at [75] as applying to the situation where a discount was given for assistance to the authorities in respect of offences by another offender, part of which related to an undertaking to give further assistance (usually by giving evidence at the other offender’s trial), to facilitate a reconsideration of the reduced sentence should the Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW) in the event that the respondent failed to fulfil the undertaking. It was not understood to apply to reduction in the sentence otherwise appropriate because the offender had voluntarily disclosed his commission of an offence – the so called Ellis discount, after R v Ellis (1986) 6 NSWLR 603.

4. [33]

   Here, the primary judge followed what was the preponderant view in this Court (contrary to my own: see Raad v R [2011] NSWCCA 138; Ehrlich at [28]ff; R v Z [2006] NSWCCA 342; 167 A Crim R 436 at [116]ff), that “the weight of authority suggests that any Ellis discount should not be specified” by reference to R v Borkowski [2009] NSWCCA 102 at [32] per Howie J, R v Windle [2012] NSWCCA 222 where Basten JA (with whom Price and SG Campbell JJ agreed on this aspect) referred to Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [15] to suggest that it was not appropriate to give any numerical indication as to the degree of leniency which should be accorded and, lastly, a passage in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [34]. However, this matter requires reconsideration in light of the decision in CMB v Attorney General for New South Wales [2015] HCA 9, which was delivered on 11 March 2015 (four days after the judgment under appeal). Amongst other things, the appeal in CMB involved the question whether an Ellis discount fell within s 23(3). French CJ and Gageler J said –

5. [34]

   Once it is accepted that the Ellis assistance falls within s 23(1), it necessarily falls within the other sub-sections, in particular s 23(4), imposing on the Court the requirement, in substance, to make explicit the nature and extent of any reduction of the sentence from that which otherwise would have been imposed absent the assistance. The mere fact, as pointed out by the Crown prosecutor, that the Court in CMB did not refer to sub-s 23(4), does not affect this reasoning.

6. [35]

   What then is the effect of an omission to do so? At face value, s 23(6), in providing that the failure of a court to comply with s 23(4) “does not invalidate the sentence”, might suggest that the error should be regarded merely as a “process” error, and not such as would affect the legal propriety of the sentence itself. However, whatever subsection 23(6) means, s 101A permits the court to consider a failure to comply with it “in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence”. The relationship between a provision such as subsection 23(6) and s 101A was adverted to in R v Tuncbilek [2004] NSWCCA 139 though the error there, to my mind, was of somewhat greater significance, since it directly affected the way that the sentence itself needed to be considered as distinct from the situation here where we are dealing with the way in which the sentence should be expressed. Simpson J (with whom Spigelman CJ and Wood CJ at CL agreed) said –

7. [36]

   It seems to me that the failure to comply with subsection 23(4) is an error of law affecting the sentence which requires this Court to consider the issue of resentencing under s 6(3) of the Criminal Appeal Act 1912 (NSW). First, the subsection is in obligatory terms; secondly, it is not possible for this Court to correct the omission since the reasons of the primary judge do not indicate which penalty “would otherwise have [been] imposed’ as required by par 23(4)(b). Furthermore, this is not information merely for the public record but information to which, it is clear, the offender has a right. The only way by which that right can be vindicated, let alone the public record corrected, is by this Court resentencing in accordance with s 6(3) of the Criminal Appeal Act. Nor, in my view, is this a matter of mere technicality. Rather, the subsection reflects important public policy considerations. Whilst recognising that many of the relevant factors are incommensurable, as a matter of important general principle, the process which leads to the imposition of a particular sentence of imprisonment should be as transparent as circumstances permit. Where particular aspects are commensurable, there are at least three good reasons for specifying them and no good reasons for declining to do so: first, it is a fundamental aspect of the administration of justice that judicial decisions are explained in a way that enables not only the parties but also the public to understand both the process and the outcome, especially in cases dealing with the liberty of the subject; secondly, where there is a right of appeal, unless the process is adequately explained, the appeal court is inhibited in undertaking its own responsibilities in respect of the case and, since appeals concern not only outcome but also process, the latter needs to be sufficiently clear for the court to do its job; and, thirdly as this court identified in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, there is a distinct public interest in ensuring, so far as is possible, that persons considering whether they should go to trial will have a rational basis for giving appropriate consideration to the relevant issues, including the potential effect on their sentence – in the case of a plea of guilty the same reasoning applies with even greater force where the question being considered is whether a person will come forward to confess involvement in a crime.

8. [37]

   It follows that the sentence here is affected by an error of law requiring the Court to consider whether, in accordance with s 6(3) of the Criminal Appeal Act, “some other sentence, whether more or less severe is warranted in law and should have been passed”.

Objective seriousness

1. [38]

   It is not controversial in the present appeal that the primary judge’s conclusion that the appellant intended to cause grievous bodily harm rather than to kill the victim was open to his Honour. I am of the same view and it follows that the appellant falls to be sentenced on the basis that he intended to cause grievous bodily harm. Although it will not invariably be the case, this intention is taken to be less heinous than the intention to kill and should be so treated (as, indeed, was done by the primary judge) in this case. The primary judge also concluded that the appellant had not planned to grievously injure the deceased but, rather, had intended to restrain and rob him. Again this is not presently controversial and I would come to the same conclusion. The victim, whilst the appellant was attempting to restrain him, managed to grab hold of a hammer and struck the appellant with it. The appellant took the hammer from him and hit the victim repeatedly in the head. Whether this was the 15 times which the appellant told the police was probable is, I think, uncertain but perhaps does not matter much. I would infer that the appellant hit the victim many more times than was necessary to subdue him, very likely because he had to some degree lost his self-control. This assault was impulsive and not premeditated.

2. [39]

   There is, of course, no such thing as a murder of slight seriousness; all murders are gravely serious. Nevertheless, it is plain that there is a range of moral and criminal culpability. Without implying that this question admits of any precision, I would place the objective seriousness of this offence as significantly below the middle of the range.

The plea

1. [40]

   This was a matter of controversy in the appeal, the first ground submitting that the primary judge erred in the exercise of the discretion as to the appropriate discount to be allowed.

2. [41]

   The appellant had pleaded guilty on the second business day before the trial was due to begin, having been committed to this Court for sentence on 12 March 2012. The matter was adjourned several times, until 7 September 2012 when it was indicated that the charge was to be defended. As the primary judge found, some of the delay in that period resulted from issues with legal aid and the appellant’s legal representation. On 7 September 2012 the matter was set down for trial on 2 April 2013. On 15 March 2013 the legal representative of the appellant indicated that fitness to plea and diminished responsibility might be in issue and, on 20 March 2013 the trial date was vacated on the appellant’s application to enable a psychiatric assessment as to the possibility of diminished responsibility to be obtained. Reports were obtained in due course and on 14 May 2013 a new trial date was fixed of 18 November 2013. Further reports received on 28 October 2013 for the appellant and on 7 November 2013 from the Crown affectively disposed of any realistic possibility that the defence of diminished responsibility might be available and, as mentioned, the appellant pleaded guilty on 14 November 2013. In R v Thomson; R v Houlton Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) stated, in his conclusion (at [160]) –

3. [42]

   The chronology of events needs to be examined in somewhat greater detail. The following is taken largely from the submissions of Mr Dhanji SC and Ms Hutchinson, counsel for the appellant, but I apprehend that it is not controversial and is a convenient summary.

4. [43]

   The investigations and reports by Dr Reid and Dr Pulman concerned matters potentially relevant to both the issues of unfitness and substantial impairment. The report of Dr Allnutt as to fitness was not to hand as at 20 March 2013 when the defence applied successfully to have the trial date of 2 April 2013 vacated. Although it might be true that the question of substantial impairment had initially been raised by the defence, Dr Allnutt – who had been retained by the Director of Public Prosecutions – had recommended that further investigations be conducted in relation to this issue. It took almost two months to resolve the fitness and substantial impairment issues between 15 March 2013 when the potential of their being an issue concerning fitness was raised and the setting of a second trial on 14 May 2013. The fitness issue was not resolved until 7 November 2013.

5. [44]

   It is submitted on behalf of the appellant that, to the extent to which delay was occasioned by the resolution of the fitness issue, this ought not to have reduced the discount which was otherwise appropriate. It is submitted that fitness is an issue that is “non-adversarial” in nature: ss 6, 11 and 12 Mental Health (Forensic Provisions) Act 1990 (NSW); R v Krbavac [2013] NSWSC 313 per Price J at [6]. The obligation to raise fitness binds both parties, even in spite of instructions to the contrary: Eastman v R [2000] 203 CLR 1 at [297] (per Hayne J). Reliance was also placed on Hawkins v R [2011] NSWCCA 153, where delay attributable to considering the question of the offender’s mental illness was, in effect, disregarded.

6. [45]

   To my mind it is of vital importance to consider the context in which pleas of guilty occur to charges as serious of murder. First, a plea of guilty to murder should be looked at with a considerable degree of caution if the offender is legally unrepresented and it would be necessary for the court to take steps to ensure, so far as was practicably possible, that the accused was adequately aware of the import of the indictment including the elements of the charge. Secondly, it would be to my mind remiss in the extreme for a legal representative to advise an offender to plead guilty where there was a real risk that a question of mental fitness needed to be explored, without first obtaining the medical information essential to that advice. It is self-evident that offenders may be – and in this case the appellant certainly was – unable to adequately assess their own mental condition. Of course, where no such issue arises and the facts are sufficiently known to and understood by the offender, a plea may readily be the subject of sensible advice. The mere fact that in this case the result of the medical enquiries was that the appellant was fit to be tried and no defence of diminished responsibility was available did not mean that it was unnecessary for appropriate enquiries to be made, as occurred. It is not suggested by the Crown that those enquiries were inappropriate or in some way a mere fishing exercise or unreasonably delayed. To my mind, it appears they were undertaken with reasonable promptitude. It would be most unfortunate if necessary medical enquiries in a case such as this were not made because of the fear that a delay in pleading guilty would lead to a significant loss of the discount that otherwise would be available. In the nature of things, of course, it was necessary that the Crown obtain its own advice, which it did. As I see the matter, it is very different when the delay is the result of negotiations between Crown and defence for lesser charges or less culpable facts, though it is not every case of this kind which would justify a reduction in the discount.

7. [46]

   Where it is reasonable to apprehend that mental illness or diminished responsibility might be relevant, as in this case, it is not practicably or professionally responsible to advise on the appropriateness of a plea in the absence of appropriate expert opinion. I note that it appears that, although Professor Coyle thought that the appellant was fit to plead, he is not a psychiatrist and the view was reasonably taken that the issue was one which required psychiatric opinion, which was obtained; indeed, Dr Allnutt was of the view that such enquires should occur. He also recommended psycho-neurological testing, which was then undertaken. In relation to impecunious defendants such as the appellant, the obtaining of these reports is a matter for the Legal Aid Commission and it seems that some delay was occasioned by the need to seek a grant of legal aid for those purposes. It should also be borne in mind, I think, that although there might be – indeed there ultimately was – a dispute about whether the appellant intended to kill or inflict grievous bodily harm, there was no real dispute about the salient facts, for which the appellant was for practical purposes the sole source. The Crown was not placed in the position where an array of witnesses were needed to be kept on hold pending the outcome of the arraignment and it is not suggested here that there was any expense whether of time or money in this regard. It is apparent that the Crown case, in terms of the admissions, the location and identification of the body and the results of the autopsy were never in dispute.

8. [47]

   In my view, the appropriate discount is 20 per cent. In saying this, of course, I should not be taken to suggest that the primary judge erred in assessing the appropriate discount at 10 per cent. I should make it clear that, despite my own view, if the question needed to be determined as a ground of appeal, I would have concluded that his Honour’s discretion had not miscarried.

The Ellis discount

1. [48]

   I discussed this question at some length in Raad. The Bench in that case agreed that the appeal should be upheld for the reasons expressed in my judgment but McClellan CJ at CL and Button J did not agree with me on the issue of whether a finding of special circumstances should be made within the meaning of s 44 of the Crimes (Sentencing Procedure) Act such as to require an adjustment of what might be called the default ratio specified by that section: I thought there were special circumstances that justified such a reduction of the non-parole period but my colleagues did not. In dealing with the issue upon which the Bench was agreed, I discussed the policy considerations relevant to assessing the appropriate discount in an Ellis situation and referred to the cases of murder where this question had arisen. My views are unchanged and I have therefore adopted the convenient course of setting out in this judgment what I said in Raad –

2. [49]

   To this list of examples should be added R v TNT [2002] NSWSC 537, to which Buddin J drew attention in his judgment in Raad (at [79]) –

3. [50]

   The very logic that accepts that sentences should be set to deter crime, by parity of reasoning, is set to deter persons who have committed crimes from voluntarily coming forward and admitting to them. The circumstances, of course, vary enormously. In some cases, the offender will already be a suspect and may think that by coming forward their likely or inevitable conviction and sentence can be significantly discounted. Where, however, the crime itself is not suspected and unlikely in the extreme to be detected, different considerations arise. The only motivation in such a case, as here, appears to be the attempt to assuage serious feelings of guilt. This may be regarded in some sense as an advantage but this does not qualify, to my mind, the essential reality that coming forward involves considerable cost with no countervailing advantage. It was rightly submitted for the appellant that, in a general sense, a person who exposes his own involvement in a crime, especially one so serious as murder, might properly be seen as more deserving of leniency than a person who, for reasons of self-interest discloses the crime of another. The discount, therefore, generally allowed in cases of assistance to the authorities by way of informing on accomplices or other criminals is of no real guide in an Ellis situation except, perhaps, to indicate that the latter discount might well be greater. Persons who are minded to come forward should not be deterred from doing so by the prospect of too lengthy a gaol sentence.

Subjective circumstances

1. [51]

   I have already referred briefly to the findings of the primary judge in this respect, which are not presently controversial and which, if I may respectfully say so, fairly reflect the evidence.

2. [52]

   The primary judge observed, as I have mentioned, that the offence was “unlikely to have occurred had it not been for the low intelligence and personality problems suffered by the offender” who was “obviously a vulnerable and suggestible person”. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 McClellan CJ at CL helpfully, with respect, set out the principles developed in sentencing an offender who is suffering from a mental illness, intellectual handicap or other mental problems (at [177]), reciting a significant number of cases in which the issue has been considered and summarising the principles as follows –

3. [53]

   This issue was also discussed in Muldrock v R [2011] HCA 39; 245 CLR 120 where the Court restated the principle in somewhat different terms, but to the same effect, as that in the second dot point quoted above. The Court (at [53]) quoting from the judgment of Young CJ in R v Mooney (unreported Victorian Court of Appeal, 21 June 1978) at [5], cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at [160] said –

4. [54]

   The court went on to say (citations omitted) –

5. [55]

   It is not controversial that the appellant was fully remorseful, the prospects for rehabilitation are good and, in light additionally of the somewhat unusual circumstances in which the crime came to be committed, it is most unlikely that he will reoffend.

Conclusion

1. [56]

   In my view, an appropriate starting point before applying the discounts is a sentence of 20 years imprisonment; to this sentence I would apply an Ellis discount of 60 per cent and a discount for the plea of 20 per cent, in total 80 per cent. This would result in an overall sentence of 4 years. Even taking full account of the substantial public policy considerations arising from the appellant’s having come forward and making a full and frank confession of his involvement in a previously unknown crime, this figure is not only disproportionate to the nature and circumstances of the offence but unreasonably so in the sense of sub-s 23(3) of the Act. Moreover, given the reasons for the Ellis discount, there is also a degree of double counting in the accumulation of the Ellis and guilty plea utilitarian discounts. I would therefore propose that the overall sentence should be reduced to 8 years, resulting from a contraction of the Ellis discount from 60 per cent to 50 per cent and the discount for the plea from 20 per cent to 10 per cent. Applying what might be called the default ratio specified in s 44 of the Act, this would lead (absent special circumstances justifying change) to a non-parole period of 6 years. Since, as it seems to me, this period is the minimum necessary for the appellant to serve in the circumstances and (though minds may reasonably differ as to this) there are no matters of particular significance pointing strongly to the existence of the relevant special circumstances, I would not propose that this non-parole period be further reduced. This explanation satisfies the requirements of sub-s 23(4). It follows that I propose the following orders –

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal upheld.

   3. (3)

      Sentence quashed, in lieu thereof there be substituted a sentence comprising a non-parole period of 6 years commencing 12 November 2010 and expiring on 11 November 2016 with an additional term of 2 years commencing 12 November 2016 and expiring on 11 November 2018.

Additional remarks

1. [57]

   Since writing the above, I have had the benefit of reading in draft the judgments of Ward JA and Bellew J. Whilst accepting the desirability of reaching unanimity if possible on the setting of the new sentence, given especially the consideration that there is a substantial range within which a sentence may be said to be appropriate, with unfeigned respect, I find myself unable to agree with the sentence their Honours propose. (In this respect, it should be borne in mind that the relevant comparison is that between the discount I propose and that proposed by the majority before applying the s 23(3) considerations.) To my mind it does not, by a considerable margin, reflect the exceptional character of the circumstance in which the appellant came forward and the marked difference between the situation when assistance to authorities is given by someone facing an inevitable term of imprisonment in order to bargain for a reduction and that occurring here where then appellant was not in danger of imprisonment at all and now faces incarceration for a lengthy period.

2. [58]

   Furthermore, in my respectful view, the allowance made for the plea in effect gives inadequate significance to the unusual circumstances which led to the delay, in particular, because the approach adopted will place pressure on those advising a mentally compromised individual to plead early without obtaining the expert opinion which is essential to enable proper consideration to the appropriate plea. Where obtaining such an opinion is beyond the means of the offender, the unfairness of disregarding the cause of delay is manifest. The public policy underlying the scheme is not adversely affected by recognizing practical realities.

3. [59]

   Since my conclusion as to the appropriate discount are so far removed from that proposed by the majority, and the sentence I propose cannot be imposed, there is clearly no point in my reconsidering the starting point which, in the nature of things, is susceptible to a greater range of outcomes. Here, however, it appears we differ both as to the level of objective seriousness and the impact of the appellant’s subjective features, especially the significance of the appellant’s problematic mental capacity.

4. [60]

   BELLEW J: I have had the advantage of reading, in draft, the judgment of Adams J. I agree, for the reasons that his Honour has expressed, that ground 2 of the appeal should be upheld.

5. [61]

   That being the case, it is for this Court to exercise the sentencing discretion afresh. In exercising that discretion, I have come to a different view than that reached by his Honour as to the appropriate sentence.

6. [62]

   The circumstances surrounding the offending are summarised by Adams J at [13]-[16] and are not in dispute. It is evident that the deceased was killed as a consequence of being struck by the appellant with a hammer. A post mortem examination established that the deceased had suffered two separate skull fractures, and that his hands had been bound with plastic cable ties.

7. [63]

   The appellant then took a series of steps in an obvious attempt to ensure that he was not identified as the deceased’s killer. They included cleaning the scene of the killing to remove traces of blood, and disposing of the deceased’s wallet, briefcase and mobile telephone. Importantly, the steps taken by the appellant also included travelling to a remote area where he waited until dark before taking the deceased’s body from his van and burying it in the bushland.

8. [64]

   The appellant’s actions in burying the deceased’s body can only have been undertaken for the purposes of attempting to hide his crime. In my view, those actions are particularly significant and can be taken into account in assessing the objective seriousness of the offence: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 at [28] per McClellan CJ at CL (Latham and Adams JJ agreeing) citing R v Yeo [2002] NSWSC 315 at [36] per James J; R v Garforth (unreported, New South Wales Court of Appeal, Gleeson CJ, McInerney and Mathews JJ, 23 May 1994); Director of Public Prosecutions v England (1999) 106 A Crim R 99. In my view, those actions of the appellant significantly aggravate his offending: R v Goundar [2010] NSWSC 1170 at [69] per Kirby J.

9. [65]

   It has been observed that a sentencing court, in determining the level of objective seriousness of an offence, need not (and arguably should not) attempt to quantify the distance between the offence before the court and a putative offence in the middle of the range: PK v R [2012] NSWCCA 263 at [25]-[26] per McCallum J (Macfarlan JA and Price J agreeing). However, an assessment of the objective seriousness of offending is an obviously essential part of determining the appropriate sentence. As I have noted, it was found on post mortem examination that the deceased sustained two skull fractures. That finding does not sit entirely comfortably with the appellant’s statement to the police that he had struck the deceased “probably about fifteen times”. Irrespective of how many blows were struck, and on any view of it, the appellant’s offending was most serious, constituted as it was by a brutal attack upon the deceased with a hammer with sufficient force to fracture his skull in two places, and ultimately kill him. Were it necessary to do so, I would regard the objective seriousness of the offence as falling marginally below the mid-range.

The plea

1. [66]

   The circumstances leading to the appellant entering a plea of guilty are comprehensively set out by Adams J commencing at [42]. It is evident that some of the delay leading up to that point was occasioned as a consequence of difficulties in having the appellant medically examined, and obtaining associated reports. Equally, as Adams J has pointed out at [42] (by reference to the judgment of Spigelman CJ in Thomson and Houlton) the primary consideration in determining where, in the range, a particular case should fall, is the timing of the plea.

2. [67]

   In the present case, the plea of guilty was entered two days before the scheduled commencement of the trial. In those circumstances I would allow a discount of 10% to reflect the appellant’s plea of guilty.

The appellant’s subjective case

1. [68]

   The circumstances relevant to an assessment of the applicant’s subjective case are set out by Adams J commencing at [22] and it is not necessary for me to repeat them. I agree that in view of the medical evidence, questions of general deterrence assume less significance in the present case. Personal deterrence is also of little significance in light of the appellant’s voluntary disclosure of his offending to police.

2. [69]

   I also accept that the appellant is genuinely remorseful, that his prospects of rehabilitation are good, and that he is unlikely to re-offend.

The Ellis discount

1. [70]

   Adams J has reviewed (commencing at [49]) a number of authorities in which an Ellis discount has been applied. Because the facts of cases necessarily differ, those authorities are of limited assistance in determining the extent of Ellis discount which should be applied in a given case. In my view, for that reason, there can be no general principle derived from the authorities that an Ellis discount is likely to be greater than the discount applied to reflect other forms of assistance, such as informing on accomplices or other criminals. The level of discount will necessarily depend upon a variety of circumstances.

2. [71]

   Further, and although voluntary disclosure of offending is to be encouraged, the determination of an appropriate sentence in any case will obviously depend upon the consideration of a range of factors. For that reason I am unable to agree with the observation of Adams J (at [51]) that persons should not be deterred from voluntarily disclosing their offending by the prospect of a custodial sentence which is “too lengthy”. In my respectful view, such an observation has the capacity to convey some expectation that voluntary disclosure of offending will, without more, result in the imposition of a sentence within a low range. In my view, consistent with principle, it needs only to be stated that persons who are minded to voluntarily disclose their offending can proceed in the knowledge that taking that course will entitle them to an element of leniency on sentence: Ellis at 604 per Street CJ. The degree of leniency will necessarily depend upon a number of factors.

3. [72]

   In the present case, the appellant’s voluntary disclosure was made in circumstances where he was not a suspect in the investigation. The agreed facts make it clear that in the absence of the appellant’s admissions, there was no prospect of the deceased’s murder, or the appellant’s involvement in it, coming to light. Considerable leniency must be extended to the appellant in those circumstances: Ellis at 604 per Street CJ.

Conclusion

1. [73]

   Having regard to all of the circumstances, I regard an appropriate sentence, before the application of any discount(s), to be 24 years imprisonment.

2. [74]

   Where, as here, a discount is to be applied to reflect a plea of guilty, the terms of s. 23(3) of the Act must be separately applied with respect to any discount for assistance. However, a sentencing court should be mindful of the combined effect of the two discounts: SL v R [2015] NSWCCA 30 at [11]-[12] per Basten JA.

3. [75]

   The court should also be mindful of the fact that the constraint imposed by s. 23(3) will not generally be met by allowing a combined discount of more than 50%: Z v R [2015] NSWCCA 323 at [33] per McCallum J, Garling J agreeing, Hoeben CJ at CL dissenting but not as to the principle.

4. [76]

   I have already concluded that the appropriate discount to reflect the appellant’s plea is 10%. The appellant’s assistance in voluntarily disclosing his offending was obviously high. It included leading the police to the location at which the deceased’s body had been buried, so as to allow the deceased’s remains to be exhumed. In these circumstances the assistance was fulsome. Of itself it would, in my view, attract a discount of 50%. The combined discount would therefore be one of 60%.

5. [77]

   Applying a combined discount of 60% to a sentence of 24 years imprisonment would result in a total sentence (rounded slightly down) of 9½ years imprisonment. There being no proper basis for a finding of special circumstances such a sentence would comprise a non-parole period (rounded down) of 7 years imprisonment, with a balance of term of 2½ years. However in my view, in terms of s. 23(3), such a sentence would be unreasonably disproportionate to the nature and circumstances of the offence. This is particularly so having regard to what I consider to be the brutality of the appellant’s attack, and his subsequent conduct in (inter alia) burying the deceased’s body in an attempt to avoid detection.

6. [78]

   I would therefore propose that a combined discount of 50% be applied. This would result in the imposition of a total term of imprisonment of 12 years, comprising a non-parole period of 9 years and an additional term of 3 years.

7. [79]

   The matters which are required by s. 23(4)(a) and (c) to be indicated or stated will be apparent from my reasons. For the purposes of s. 23(3)(b), I state that the total sentence I would otherwise have imposed would have been a term of imprisonment of 21 years and 6 months: SL (supra) at [10] per Basten JA citing Horne v R [2014] NSWCCA 133.

Orders

1. [80]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Sentence imposed by the primary judge quashed.

   4. (4)

      In lieu thereof, the appellant is sentenced to a non-parole period of 9 years imprisonment commencing on 12 November 2010 and expiring on 11 November 2019, with an additional term of 3 years imprisonment, commencing on 12 November 2019 and expiring on 11 November 2022.