DXH (a pseudonym) v R

1. [1]

   ADAMSON JA: DXH (a pseudonym) (the applicant) seeks leave to appeal against the sentence imposed on him by Harrison J (the sentencing judge) of 14 years’ imprisonment commencing on 24 July 2018 and expiring on 23 July 2032 with a non-parole period of 10 years and 6 months expiring on 23 January 2029. The sentence was imposed following his conviction for murder after a trial by jury over which the sentencing judge presided.

2. [2]

   The grounds of appeal, if leave is granted, are as follows:

The facts

1. [3]

   The sentencing judge was required to sentence the applicant by reference to the facts as found by his Honour (including from the evidence adduced at the trial), which were required to be consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374 at 380D (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). The facts as found by the sentencing judge can be briefly summarised. The paragraph references are to his Honour’s reasons.

2. [4]

   In mid-2018, the applicant and his co-offender (the co-offender) entered an apartment (the apartment) in a suburb in the western Sydney metropolitan area (the suburb). Both were wearing latex gloves and had their faces covered. Inside the apartment, there were four people, including the deceased. Shortly after the co-offender and the applicant entered the apartment, the co-offender shot the deceased with a pistol. The applicant, who was unarmed, was standing slightly behind the co-offender at the time ([4]). The deceased later died in hospital as a result of the shooting ([3]).

3. [5]

   Earlier that afternoon, there was a disagreement between the deceased and an associate of the co-offender (the associate) in the apartment, in the course of which the deceased had assaulted the associate and demanded money from him. A witness to this assault rang the co-offender from the apartment and told him that the associate was being assaulted. The applicant, who was at the co-offender’s home at the time, noticed a change in the latter’s mood as a consequence of the call. The co-offender told the applicant that he had “a little bit of drama” in the suburb; that “there was a little problem there”; and that he wanted to “go talk to this bloke” ([6]-[7]).

4. [6]

   Before they left the co-offender's home, the co-offender handed the applicant some latex gloves which the applicant placed in his pocket. The co-offender's father drove the co-offender and the applicant to a dead-end street several blocks away from the complex in which the apartment was located. As they neared the complex on foot, the co-offender told the applicant to “put [his] hoody on”. The applicant did so ([7]).

5. [7]

   The owner of the apartment buzzed the co-offender into the complex when he told her to “open the fucking door”. The applicant observed the co-offender to be angry. At that point, the applicant handed the co-offender the gloves that he had earlier put into his pocket and they both put them on. The applicant also lifted his jumper to conceal the bottom of his face ([8]).

6. [8]

   Both men got into the lift. While in the lift, the co-offender put a balaclava on. The applicant got out of the lift first, and turned to see that the co-offender was wearing a balaclava and had pulled out a handgun from which he was unwrapping tape. This was the first time that the applicant had seen the gun ([9]).

7. [9]

   The co-offender got out of the lift and entered the apartment, with the applicant close behind, and, as referred to above, immediately shot the deceased ([3]). The co-offender then tried to kick the deceased in the face as he slipped off the couch. The applicant said to him, “Oh that’s enough bro, come on, let’s go”. The co-offender pointed the gun at the other three people present and said, “if anyone says anything, I’m coming back to knock yous [sic] all”. The applicant tried to push the co-offender’s arm up so the gun was not pointed at anyone ([10]).

8. [10]

   The applicant and co-offender parted when they left the apartment. The applicant went home. Two days later, the applicant rang the [local] Police Station and said he wished to speak to them about the shooting. Police attended his home where he was arrested and charged with murder. He took part in a lengthy recorded interview later that night ([11]).

The proceedings on sentence

1. [11]

   Because the grounds of appeal are limited to the question of a discount for the applicant’s assistance to authorities pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), it is not necessary to address other factors which bore on the sentence imposed. It is sufficient to consider the evidence before the sentencing judge, the submissions made to his Honour as well as the reasons his Honour gave in respect of that matter.

2. [12]

   In written submissions provided in advance of the sentence hearing, the Crown submitted that the applicant’s assistance had two components: first, the contact he made to police on 24 July 2018 and the resultant participation in an Electronically Recorded Interview of a Suspected Person (ERISP); and the applicant’s undertaking to give evidence in the prosecution case against the co-offender. The Crown accepted that these were related as the version the applicant gave in the ERISP became part of the Crown case against him at trial, as well as the Crown case against the co-offender.

3. [13]

   The Crown also pointed to the applicant’s answers in the ERISP which demonstrated that he understood that he had already attracted police attention by reason of CCTV cameras which he believed identified him and that the investigation was already underway. The Crown submitted that:

4. [14]

   The Crown also submitted that some of what the applicant had told the police in the ERISP was not true (and can be taken to have been rejected by the jury) including: that the applicant told the police that he “had nothing to do with [the co-offender]” (when the evidence established that they had been in each other’s company previously when the co-offender received the call); that it was “just all spur of the moment” in the apartment (which was contradicted by the evidence that the applicant and co-offender had made attempts to disguise themselves); and that the applicant did not know that the co-offender had a gun (which was contradicted by the applicant’s evidence about being shown the gun before they went into the apartment).

5. [15]

   As to the applicant’s undertaking to give evidence in the trial of the co-offender (and another accused) in accordance with what he said in his ERISP, the Crown:

   1. (1)

      accepted that although the Crown case was strong, the applicant’s evidence would be “useful and many aspects of the Crown case at trial will draw on [the applicant’s account]”;

   2. (2)

      regarded the applicant’s evidence to be largely “truthful and reliable”, and, “[w]ith limited exceptions, … complete”;

   3. (3)

      submitted that the applicant’s assistance (which falls within s 23(2)(d) and (i) of the Act) ought be taken into account in the applicant’s favour under s 23(2)(f) and lead to a discount in the sentence imposed on the applicant; and

   4. (4)

      accepted that the applicant’s custodial conditions could be expected to be harsher as a consequence of his assistance, as referred to in s 23(2)(f) of the Act.

6. [16]

   At the sentence hearing, the Crown submitted that the present case did not warrant an “Ellis discount” (after R v Ellis (1986) 6 NSWLR 603) (which applies when an offender voluntary discloses his or her involvement in a serious crime about which the police had no knowledge) because his detection was “inevitable”.

7. [17]

   However, the Crown accepted that the applicant was the sole source of the following facts (set out in its submissions):

8. [18]

   The applicant’s written submissions at the sentence hearing were relevantly as follows (as formatted in the original):

9. [19]

   In oral submissions, the applicant’s counsel submitted that the gravity of the offence (murder) meant that the assistance assumed greater significance. It was common ground by the time of the sentence hearing that the co-offender had been tried but no verdict had been returned, with the consequence that the co-offender was to be re-tried, thereby necessitating the applicant giving evidence again, which he agreed to do, which was a further matter on which the applicant’s counsel relied.

10. [20]

    The applicant’s counsel also submitted orally:

11. [21]

    The sentencing judge addressed matters germane to the applicant’s assistance to authorities (and therefore to the discount pursuant to s 23 of the Act) throughout the judgment. The relevant passages include:

Consideration

1. [22]

   As both grounds of appeal require an examination of the sentencing judge’s reasons, it is useful to summarise the applicable principles regarding the need for, and purpose of, reasons and how they ought be read.

2. [23]

   Judges are required to give reasons which set out the material findings of fact and explain why a decision has been reached. One of the purposes of this requirement is to reveal any error might warrant a challenge to the decision by an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 382 (Asprey JA) and 388 (Moffit JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA). The judicial obligation to give reasons was considered by this Court in Strbak v Newton [1989] NSWCA 202 at 3 (referred to in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [73] (Bell CJ)), where Samuels JA (Gleeson CJ and Priestley JA agreeing) said at 7:

3. [24]

   In Orr at [74], this Court approved the observations of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 that, when making a discretionary judgment, it is sufficient “if the inference as to what is found is appropriately clear” from the judge’s reasons.

4. [25]

   Mr Neild SC, who appeared for the applicant in this Court, submitted that the sentencing judge’s discretion had miscarried because his Honour had failed to address each of the matters referred to in s 23(2) of the Act with respect to the applicant’s voluntary disclosure of his own involvement in the reasons for sentence, but had confined his consideration of such matters to the applicant’s assistance regarding the involvement of the co-offender.

5. [26]

   Section 23(1) of the Act empowers a sentencing court to impose a lesser penalty on an offender “having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence”. Such lesser penalty must not be “unreasonably disproportionate to the nature and circumstances of the offence”: s 23(3). The court is required to distinguish between past and future assistance and quantify the discount: s 23(4).

6. [27]

   Section 23(2) provides:

7. [28]

   The wording of s 23 of the Act makes plain that each of the matters, if applicable, is a mandatory relevant consideration (in the sense identified in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40; see also Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38]). Thus, an error to take into account any one of them has the potential to vitiate the discretion exercised by the sentencing judge: Jones (a pseudonym) v R [2021] NSWCCA 106 at [65]-[67] (Davies J, Basten JA and Button J agreeing) and George (a pseudonym) v R [2021] NSWCCA 321 at [65]-[69] (Button J, Basten JA and Davies J agreeing).

8. [29]

   Section 23(2) required the sentencing judge to address, expressly or implicitly, each of the applicable matters: Vassiliou v R [2022] NSWCCA 91 at [49]-[50] (Harrison, Davies and Hallen JJ). In ascertaining whether the sentencing judge has done so, his Honour’s reasons are to be read fairly and “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing, at fn 25, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

9. [30]

   It was open to the sentencing judge to use the subparagraphs of s 23(2) of the Act as a checklist and to address them in the order in which they appear in s 23(2), by reference to the terms of the section. However, his Honour was not required to fulfil his obligation to give reasons in this, somewhat mechanical, way: Vassiliou at [49]. There are various audiences for a sentencing judgment, including the offender, the victim (if surviving); the victim’s and offender’s friends, family and associates; the public at large; the legal profession and this Court. Sentence judgments are delivered orally, usually in open Court (although the court may be closed in cases such as the present where assistance to authorities has been given). It is desirable that sentencing judgments be understood by the person who is to be sentenced. Thus, it is common in such judgments to avoid references to authority or statutory provisions in terms, but rather to indicate, through the language used, that the correct principles and law have been applied.

10. [31]

    I accept the Crown’s submission that it would have been artificial to try to separate the applicant’s evidence as to his involvement from his evidence as to the co-offender’s involvement: the events he was describing were the same events involving them both and they were both inextricably linked. The only relevant distinction which his Honour was required to (and did) draw was the one between past and future assistance (his Honour divided the 25% equally between past and future: see [30] of the reasons): s 23(4) of the Act.

11. [32]

    While the structure of the judgment and the headings used (which are considered further in relation to ground 2) imply that the sentencing judge addressed the applicant’s assistance with respect to the co-offender’s involvement separately from the consideration of the applicant’s disclosure of his own involvement, it is plain from the substance of his Honour’s reasons that both were considered in arriving at the appropriate discount under s 23 of the Act.

12. [33]

    In my view, the reasons of the sentencing judge demonstrate that his Honour addressed, either expressly or implicitly, each of the following, with respect not only to the applicant’s assistance regarding the co-offender’s involvement, but also in disclosing his own involvement:

13. [34]

    In my view, the reasons of the sentencing judge indicate that his Honour took into account each and every relevant subparagraph in s 23(2) of the Act in determining the discount for assistance under s 23(1) (which incorporated the applicant’s assistance in providing information and evidence of both the co-offender’s involvement as well as disclosing his own). Accordingly, ground 1 has not been made out.

14. [35]

    The complaint in ground 2 (which is related to the complaint in ground 1) is that, while the sentencing judge allowed a discount for the applicant’s assistance in respect of the co-offender, his Honour did not allow any discount for the applicant’s disclosure of his own involvement.

15. [36]

    Mr Neild argued that the sentencing judgment ought be read by reference to the headings used by his Honour, which he submitted revealed his Honour’s failure to have regard to the applicant’s disclosure of his own involvement. On this basis, he argued that assistance to authorities in respect of the co-offender was exhaustively addressed under the heading “assistance to authorities” and the paragraphs beneath it ([27]-[30]) and that the applicant’s disclosure to authorities of his own involvement was exhaustively addressed under the heading “Ellis discount” and the paragraphs beneath it ([36]-[38]). He submitted that it was also telling that his Honour had addressed other unrelated matters (“[r]emorse and contrition”, “[d]eterrence” and “[r]ehabilitation”) in between “[a]ssistance to authorities” and “Ellis discount”, thereby emphasising the demarcation between an assessment of the value of the applicant’s assistance in the Crown case against the co-offender and the value of his disclosure of his own involvement.

16. [37]

    Thus, Mr Neild contended that his Honour failed to have regard to the applicant’s assistance (in his own case) in so far as it pertained to his voluntary disclosure of his own involvement in the offending by omitting that matter from the consideration of s 23(2) factors in [27]-[29]. He submitted that the absence of reference to the applicant being unknown to police or to any of the eyewitnesses meant that his Honour failed to take into account the value of the applicant’s voluntary disclosure by allowing an additional discount, as required by s 23(2) of the Act. Mr Neild submitted that this matter was separately (and exclusively) considered under the heading “Ellis discount” and that, if the concluding words of [38] (set out above) were read as referring back to [27]-[29], what his Honour said in [36]-[37] would be otiose.

17. [38]

    It was common ground that the reference to “Ellis discount” must be taken to be a reference to the common law principle, established in R v Ellis, which was decided before s 23 of the Act became operative: see the legislative history to s 23 in RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 54 at [57]-[61] (R A Hulme J).

18. [39]

    In R v Ellis, this Court held that an offender who voluntarily discloses his or her involvement in a serious crime about which the police had no knowledge was entitled to a “significant added element of leniency”. In R v Ellis, the respondent voluntarily disclosed his involvement in (and pleaded guilty to) seven armed robberies to police, who were otherwise unaware of that involvement. Street CJ said, at 604, that the degree of leniency which would be afforded to an offender in such cases depended on the likelihood of discovery of the offence.

19. [40]

    In CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 (CMB), French CJ and Gageler J said, at [41], that the policy behind the Ellis discount found statutory expression in s 23 of the Act: see also [72]-[73] (Kiefel, Bell and Keane JJ). R v Ellis continues to provide guidance as to why such assistance may warrant a discount pursuant to s 23 of the Act: see R v SS [2021] NSWCCA 56 at [43]–[44], and the discussion at [59]–[65]. It follows that what would have warranted an Ellis discount before the enactment of s 23 of the Act, remains, if established, one of the matters to be taken into account under s 23(2). Thus, if the sentencing judge’s reasons are properly to be read as excluding matters germane to the Ellis discount when assessing the appropriate discount under s 23 of the Act, the applicant will have established a House v The King (1936) 55 CLR 499; [1936] HCA 40 error which would require the sentence to be set aside.

20. [41]

    However, I do not consider that the sentencing judge’s reasons ought fairly be read as Mr Neild contended. Although it would have been open to his Honour to refer to the Ellis discount component of the s 23(2) factors under the heading “Assistance to authorities” (which would have more closely accorded with the approach approved in CMB), it was not necessary that his Honour do so. As can be seen from the recitation of the parties’ submissions at the sentence hearing above, the applicant’s counsel addressed the Ellis discount separately in the written submissions. His Honour may have adopted the heading to indicate to the applicant that he had taken into account that submission.

21. [42]

    Further, while what was referred to before the enactment of s 23 of the Act as the Ellis discount now falls within s 23, the expression “Ellis discount” retains currency as a shorthand expression to encapsulate an offender’s identification of his or her previously unknown involvement in the crime.

22. [43]

    The matter is to be resolved as one of substance and not form. The sentencing judge’s reasons indicate that while the applicant presented himself to police and participated in a lengthy interview, it was likely to be only a matter of time before the police approached him since he was visible and identifiable on CCTV cameras around the apartment complex (the CCTV footage was tendered in the Crown case against the applicant, thereby enabling the sentencing judge to make this finding from his own observation of the footage and the applicant, which was not challenged). Thus, the applicant’s disclosure that he was the person who accompanied the co-offender to the apartment was of little or no value. In these circumstances, whether or not the applicant was “known to police” or could be identified by eyewitnesses was hardly to the point when he could be identified by CCTV cameras in the vicinity.

23. [44]

    The value of the applicant’s assistance, which was identified by the sentencing judge, was in the detail he provided as to his and the co-offender’s involvement (which were inextricably linked) and what had triggered that involvement, as well as in his having given evidence in the first trial of the co-offender (which did not result in a verdict) and his giving evidence in the second trial (which post-dated the imposition of the sentence on the applicant and in which the jury returned a verdict of guilty in respect of the co-offender). The Crown case otherwise rested on the CCTV footage surrounding the apartment complex, the evidence of the eyewitnesses who were inside the apartment and the evidence of the person who had originally phoned the co-offender to tell him of the assault on his associate by the deceased.

24. [45]

    In so far as Mr Neild submitted that the sentencing judge was obliged to give a greater discount for the Ellis assistance, I reject the submission. Although the sentencing judge did not, in terms, refer to s 23(3) of the Act or say that a discount greater than 25% would cause the sentence to be “unreasonably disproportionate to the nature and circumstances of the offence”, I consider it to be necessarily implicit in [38] of the reasons that this was a relevant limiting factor.

25. [46]

    For these reasons, ground 2 has not been made out.

Proposed orders

1. [47]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [48]

   DAVIES J: I agree with Adamson JA.

3. [49]

   CHEN J: I agree with Adamson JA.