R v SS

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes. I also agree with his Honour’s analysis of R v Ellis (1986) 6 NSWLR 603 and ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. [2]

   R A HULME J: A four-week old baby was shaken “like a ragdoll” by her father because she would not stop crying. She suffered severe and multiple intracranial injuries that have left her with permanent brain damage.

3. [3]

   The father pleaded guilty to recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence has a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years.

4. [4]

   Sentence was imposed in the District Court at Campbelltown on 17 August 2020 by his Honour Judge Colefax SC. He allowed a 25% discount for the father’s early plea of guilty and a further 25% for his (belated) admissions to police. He imposed a sentence of 1 year and 9 months with a non-parole period of 12 months.

5. [5]

   The Crown has appealed against the sentence on a number of grounds including that it is manifestly inadequate. The appeal should be upheld and a new sentence imposed.

Non-publication of anything that might identify the victim

1. [6]

   Neither the child nor her family members can be named as s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication or broadcast of anything that might identify or is likely to lead to the identification of a child.

2. [7]

   The judge made non-publication orders and suppression orders. There was no purpose in these as s 15A, like similar statutory non-publication provisions, applies automatically. [1] Those orders should be revoked.

Grounds of appeal

1. [8]

   The Crown appeal is based upon the following grounds:

Agreed facts concerning the offence

1. [9]

   The respondent and his wife were living in a granny flat at the rear of her parents’ address. They had two children, one aged almost 2 and the victim who was just four-weeks old. The respondent’s wife ordinarily cared for the children with help from her parents while the offender was at work. He was employed as a removalist.

2. [10]

   On Wednesday 7 November 2018, the victim was cared for at home by her mother and grandmother. She had no visible injuries and her demeanour during the day was normal. The respondent arrived home from work at 3.30pm. At about 6.00pm, his wife had a shower for about 20 minutes, leaving the baby in the respondent’s care. He was in the process of trying to feed her as his wife was getting into the shower.

3. [11]

   The agreed facts contain only a brief description of what the respondent did:

4. [12]

   When the respondent’s wife came out of the shower the baby was “screaming, crying at a higher pitch than normal and was obviously in pain”. It took more than an hour to settle her.

5. [13]

   At about midnight, the victim woke and began screaming again. Her mother tried to settle her, but she continued screaming and would not feed. The mother was able to get her to fall asleep in her arms but every time she would put the baby in her bassinet, she would wake up screaming. At some point the respondent woke and also tried to settle her.

6. [14]

   The baby was fed at about 3.00am but threw up a short time later. The respondent and his wife became concerned and they spoke of taking the baby to a doctor in the morning. Eventually they went back to sleep but sometime between 4.30am and 5.00am the baby woke again and began crying with the same high-pitched screaming as earlier. Her mother attempted to settle and feed her, but she was unable to take any food.

7. [15]

   The respondent was getting ready for work. His wife asked him to stay and help with the baby. He said he had to go to work but she should call him if she needed anything.

8. [16]

   Sometime between 5.00am and 6.00am the victim was fed and again threw up. However, she also began to shake and twitch. Her mother became very concerned and summoned a doctor. After a brief physical examination, the doctor told her to take the baby to the hospital. She called the respondent, told him what the doctor said and asked him to come home. They took the baby to Liverpool Hospital, arriving just after 7.00am.

9. [17]

   After various examinations the baby was urgently transferred to The Children’s Hospital at Westmead where she was admitted to the Paediatric Intensive Care Unit. A paediatric registrar noted the following injuries:

10. [18]

    Intracranial injuries were noted by doctors (and explained in the agreed facts) as follows:

11. [19]

    A staff specialist paediatrician of the Child Protection Unit opined that the baby had severe and multiple intracranial injuries that left her with permanent brain damage. It is unnecessary to spell out the detail of the findings upon x-ray and scans; it suffices to say that the damage to the brain and related regions was severe. The judge noted that the baby has cerebral palsy. He also observed: [2]

12. [20]

    The baby remained in hospital until discharged into the care of her mother on 12 December 2018.

13. [21]

    The agreed facts concerning the police investigation bear importantly upon Grounds 2 and 3. These relate to the substantial reduction of sentence the judge allowed (25%) for the respondent’s assistance to authorities for his voluntary disclosure of “otherwise unknown guilt”.

14. [22]

    The following facts were agreed:

The respondent’s background and personal circumstances

1. [23]

   The details of the respondent’s background were not controversial. The judge referred to him having been born in Sri Lanka and coming to Australia at the age of 3. He had a good childhood. He completed high school. He worked as a graphic designer but decided he preferred manual work. He commenced work as a removalist and had been in that occupation for most of his adult life. He was aged 25 at the time of the offence. He had no prior convictions.

2. [24]

   The judge noted the respondent’s early plea of guilty and said it entitled him to a discount of 25%. He allowed an additional discount of 25% for the “Ellis factor”. (This is the subject of Ground 2 of the appeal.) His Honour announced that the sentence otherwise would have been one of 3 years and 6 months. [3]

3. [25]

   Reference was made to the respondent expressing remorse to the author of a psychological report and the author of a Sentencing Assessment Report. The judge noted the Crown’s challenge to this in cross-examination of the respondent but was satisfied his remorse was genuine. He found that the respondent’s prospects of rehabilitation were “more than good” and he was “unlikely to reoffend”. In the light of those findings his Honour found that “specific deterrence … is not fully engaged in this case” (although he considered that general deterrence was). [4]

Principles applicable to a Crown appeal against sentence

1. [26]

   A primary purpose of Crown appeals against sentence is to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”: Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310.

2. [27]

   To make good a claim that a sentence is manifestly inadequate, the Crown must establish that the sentence imposed was unreasonable or plainly unjust. This is in the context of there being no single correct sentence, and judges at first instance are allowed as much flexibility in sentencing as is commensurate with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58].

3. [28]

   The Crown contended in written submission that this case represented an opportunity to provide guidance to sentencing judges in relation to the proper approach to a reduction in sentence under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when an offender discloses his or her own wrongdoing. [5]

4. [29]

   The Crown also contended that this appeal is of a type that would assist in maintaining confidence in the administration of justice by promoting uniformity of sentencing, citing Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 306 (McHugh J). [6]

Ground 1 – error in assessment of objective seriousness of the offence

1. [30]

   The judge found that the offending was aggravated “because the child was vulnerable, the offence occurred in her own home, and because she was dependent on you”. Noting that grievous bodily harm is an element of the offence, he also considered “the degree of the harm sustained by this child is an additional aggravating factor”. Overall, the objective seriousness of the offence was assessed as falling “somewhere below the middle of the range but it is certainly not at the bottom of the range”.

2. [31]

   The Crown submitted that the judge’s assessment as to the relative seriousness of the offence was one that was not open on the evidence. Additionally, the judge failed to consider two material features: (1) the enormous physical disparity in size and strength between the respondent and the victim and (2) the breach of trust involved in the offence. The Crown also raised a question about the adequacy of the judge’s reasons. [7]

3. [32]

   The respondent defended the adequacy of the judge’s reasons by reference to their quantity and the number of findings made, including express findings as to aggravating factors. It was submitted there was no error in failing to take into account the disparity of size between the respondent and the baby and the breach of trust because they were incorporated in the judge’s findings as to the baby being vulnerable and dependent. It was also submitted that there will always be a disparity in size between an adult offender and a four-week old baby. [8]

4. [33]

   The respondent submitted that the characterisation of the objective seriousness of the offence was one that was open to be made. The injuries sustained by the baby was a significant factor and the judge was plainly cognisant of them, referring to them in rejecting a submission that the offence was capable of being dealt with summarily. The seriousness with which the judge viewed the matter was also reflected in him rejecting a submission the sentence could be served by way of an intensive correction order. [9]

5. [34]

   A starting point for this ground is to acknowledge, as both parties did, that the characterisation of the degree of objective seriousness of an offence is within the domain of sentencing judges. This Court is very slow to intervene and determine such matters for itself or to set aside a judgment made at first instance: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ), [46] (Simpson J, as her Honour then was).

6. [35]

   The remarks on sentence are absent explicit discussion of the physical disparity and breach of trust aspects but it is not clear that the judge did not take such matters into account. Submissions criticising ex tempore sentencing remarks for their adequacy need to be considered in light of the practical realities facing the judge. In this case, his Honour was the senior presiding judge at Campbelltown with responsibility for managing the flow of cases through that busy venue. The sentence hearing occupied the larger part of a Friday and had to continue through the course of the following Monday, with sentencing immediately following that afternoon.

7. [36]

   I am not convinced that the reasons of the sentencing judge were deficient or that he failed to consider any material factor. This ground of appeal should be upheld because the judge’s assessment was not one that was open to him.

8. [37]

   The victim was only four-weeks old. She was utterly defenceless and completely dependent upon her parents. The respondent was a mature adult. He was not lacking in intelligence and he told police he was aware that shaking a child could have serious effects. There is nothing that remotely explains his actions of shaking the baby so that, as he described to police, her body movements were “like a ragdoll, I suppose”.

9. [38]

   There is no dispute that the level of harm caused exceeded what is required to establish the grievous bodily harm element of the offence. The victim will spend her entire life with the effects of severe brain damage. She has cerebral palsy. Without doubting the love and care she will receive, she will represent a long-term emotional, physical and financial burden upon her mother. She is unlikely to have many of the experiences of life, love and fulfilment that most people take for granted.

10. [39]

    In the vast majority of cases of grievous bodily harm offences the victims are adults. Where the victim is a child, that would usually elevate the relative seriousness of the offence. And where the victim is a baby and the harm is severe brain damage that will endure for life, it is difficult to imagine something that would reduce the objective seriousness of the offence to below the middle of the range. There is nothing in this case that can justify such a finding.

11. [40]

    Some of the matters raised in the submissions of counsel in the court below, and relied upon again in this Court, pale into insignificance. [10] The fact that the offence involved “a one-off episode” was of no moment; the respondent was only being sentenced for one offence. The assertion that “there was no planning or pre-meditation” is also of no moment; the offence would be even more serious if there had been.

12. [41]

    A contention raised at the hearing that the shaking was brief and there was no evidence of the force used has no merit. [11] It need not have taken long, or much force, to shake a four-week old baby “like a ragdoll” and cause serious harm.

13. [42]

    This ground must be upheld. With respect to him, the offence was significantly more serious than the learned judge appreciated.

Ground 3 – error in failing to apply s 23 of the Crimes (Sentencing Procedure) Act when allowing a discount for assistance to police

1. [43]

   The parties made separate submissions in relation to these grounds, but they are so connected that they should be discussed together. What has been referred to as the Ellis principle has been accepted since at least CMB v Attorney General for The State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 (CMB v Attorney General) as being a matter of assistance to authorities that may entitle an offender to a reduction of sentence under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is fruitless to separately discuss what may or may not have justified an offender receiving a sentence reduction pursuant to R v Ellis; the real issue is whether an offender may receive a reduction pursuant to s 23.

2. [44]

   This is not to say that R v Ellis may be ignored. It, and cases which have considered its application, provide a guide to why an offender’s disclosure to law enforcement authorities of otherwise unknown guilt may justify a sentencing discount for assisting authorities.

3. [45]

   R v Ellis (1986) 6 NSWLR 603 was concerned with a District Court judge having adjourned a sentencing hearing for a lengthy period. The appeal had nothing to do with discounts on sentence. Nevertheless, it was the occasion for Street CJ to make some obiter observations about a matter that may warrant the extension of leniency on sentence. The facts were that Mr Ellis committed seven armed robberies from 6 September 1984 to 14 November 1984. After consulting a minister of religion he was persuaded he should “see a solicitor and make a clean breast of them”. He did so with the result that he was interviewed by police on 18 December 1984 and disclosed his guilt in respect of each robbery. He was duly charged and entered pleas of guilty.

4. [46]

   Street CJ said at 604:

5. [47]

   The elements of what the Chief Justice said include:

6. [48]

   The extent to which leniency may be extended pursuant to R v Ellis was discussed in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. McHugh J said (at [11]):

7. [49]

   McHugh J quoted from R v Ellis and continued (at [12]):

8. [50]

   His Honour further observed (at [15]):

9. [51]

   James J (Sheller JA and O’Keefe J agreeing) in R v GLB [2003] NSWCCA 210 reviewed the various individual judgments in Ryan v The Queen, namely those of McHugh J, Callinan J (Gummow J agreeing), Hayne J and Kirby J. He noted that Kirby J was in the minority. James J continued (at [33]):

10. [52]

    James J then referred (at [39]) to the applicant in that case being entitled to “a substantial” discount, which he explained meant one that was “not insignificant”.

11. [53]

    The facts in R v Ellis provide some context for what the Chief Justice said about “a significant added element of leniency”. They have been referred to earlier; briefly, the offender voluntarily disclosed to police his guilt in respect of seven armed robberies.

12. [54]

    In Lewins v R [2007] NSWCCA 189 at [15], Howie J described R v Ellis, by reference to its facts, as “a quite exceptional case”. After also referring to R v Dodd (1991) 57 A Crim R 349 (where a person received no reduction from a sentence commensurate with the objective seriousness of a manslaughter offence, notwithstanding his voluntarily confessing 10 years after the event when there was no chance of his guilt being discovered), and Ryan v The Queen, Howie J continued (at [18]):

13. [55]

    In the present case it was common ground [12] that the principle enunciated in R v Ellis applies in broader circumstances than described there by the Chief Justice. They were summarised by Basten JA in R v Windle [2012] NSWCCA 222 at [36]:

14. [56]

    R v Windle itself fell with the first and third of types of voluntary disclosure described by Basten JA. It concerned an offence of attempt to strangle with intent to murder. The victim had reported the offence and had identified the offender. As indicated in the above extract, the only unknown factor was the element of intention. Absent the admission, the offender would have faced some form of assault charge, rather than an offence carrying a maximum penalty of imprisonment for 25 years.

15. [57]

    The circumstances were similar in R v Bell [2005] NSWCCA 81. There the offender was sentenced for an offence of attempt to strangle with intent to murder and the intention to kill element was established by admissions made by the offender upon his arrest. The sentencing judge said that the offender’s forthrightness in disclosing his homicidal intention enabled the Crown to charge a more serious offence than would otherwise have been proved by the objective circumstances. He said in that context that the plea of guilty should benefit the offender with “considerable leniency”. Grove J (Spigelman CJ and Bell J agreeing) was satisfied that the offender was entitled to a measure of leniency by reason of his disclosure and rejected a contention that the judge had failed to take into account all relevant aspects relating to it.

16. [58]

    Herbert v R [2015] NSWCCA 172 is an example of the second of the three types of voluntary disclosure described by Basten JA. It involved the brutal sexual assault of a woman who was grabbed as she walked along a beach and dragged into nearby bushes. The offender walked into a police station two days later saying he had seen media articles and reports on Facebook about the assault and was concerned he may have been involved. He was subject to “black-outs” from alcohol and prescription drug abuse. He provided a sample for DNA testing and it was determined he was the offender. The appeal against sentence was upheld on the basis that the sentencing judge erred in confining consideration of the voluntary disclosure of responsibility for the known crime to issues of remorse and prospects of rehabilitation. Further leniency above those two matters should have been afforded.

17. [59]

    In CMB v Attorney General, French CJ and Gageler J described (at [41]) ss 22 and 23 of the Crimes (Sentencing Procedure) Act as containing the statutory expression for the policy to which Street CJ had referred in R v Ellis in relation to leniency for pleas of guilty and for disclosure of otherwise unknown guilt. Kiefel, Bell and Keane JJ (at [72]) referred to the principles stated in R v Ellis as involving assistance to law enforcement authorities in the detection and investigation of the offence, thus that with which s 23 is concerned. This Court observed recently in Ahmad v R [2021] NSWCCA 30 at [24], with reference to CMB v Attorney General, that “the principles in Ellis are now embodied in s 23 of the Crimes (Sentencing Procedure) Act”.

18. [60]

    Section 23 (relevantly) is in the following terms:

19. [61]

    It is apparent from the emphasised words that there are certain mandatory considerations when a court contemplates imposing a lesser penalty and if so, to what extent. Their effect was conveniently summarised by Beech-Jones J in R v AA [2017] NSWCCA 84 at [45]:

20. [62]

    This Court in Ahmad v R recently re-stated the proposition discussed by Basten JA in Windle v R that the leniency referred to in R v Ellis is not confined to disclosure of the fact of an offence, or an offender’s involvement in it. [13] The Court in Ahmad v R said (at [33]):

21. [63]

    Importantly, Ahmad v R makes clear that confessing and co-operating with law enforcement authorities does not entitle an offender to a discount more than that which may be provided for a plea of guilty. The Court explained (at [35]-[36]):

22. [64]

    Le v R [2019] NSWCCA 181 provides an example of an offender seeking a benefit for assistance over and above that attracted by his plea of guilty. He was found in a house in which there was a sophisticated hydroponic system for cultivating cannabis plants. He had endeavoured to prevent police entering the house. Within the house police found his fingerprint on a lampshade as well as items of his personal property. He participated in a “walk-through” and made admissions to living in the premises for the past six months, claiming he had been hired to look after the plants. The sentencing judge noted the offender’s participation in the interview and his “full admissions”. He accepted there was evidence of remorse, although it was of less weight because the offender did not give evidence. It was contended on appeal that the judge erred in failing to take the admissions into account as either evidence of assistance to authorities (per s 23) or as further evidence of remorse.

23. [65]

    N Adams J (Bathurst CJ and Price J agreeing) (at [53]-[54]) rejected the contention that the offender had disclosed otherwise unknown guilt and held he had not established the admissions amounted to assistance within the meaning of s 23(1). She cited the judgment of Garling J in Browning v R [2015] NSWCCA 147 at [123] for the proposition that the mere fact that an offender participates in a police interview about the subject-matter of the offence in question is not a matter which is entitled to any weight, of itself, in mitigation of sentence. Her Honour also said (at [55]) that even if the assistance was capable of falling within s 23(1), it did not necessarily warrant a lesser sentence. Applying the criteria in s 23(2) she noted:

24. [66]

    The agreed facts constituted the primary evidence upon which the sentencing judge made findings that led to the 25% Ellis discount. Relevant aspects have been set out in full above at [22].

25. [67]

    The respondent also relied upon an affidavit by his solicitor. It included that the police interviewed the respondent’s wife and then the respondent on the night of 8-9 November 2018; each of the respondent’s parents-in-law on 9 November 2018; and the respondent and his wife again on 13 November 2018. In each case the interviewee was told they were not under arrest and were free to leave at any time. [14]

26. [68]

    Towards the end of the interview of the respondent’s wife on 13 November 2018 she was asked open questions as to whether she knew how the baby sustained the injuries and whether she caused them. The respondent relied upon this in submitting to the primary judge that the police were making inquiries and did not have a particular suspect up until the point at which the respondent made admissions in his interview on 13 November 2018. [15]

27. [69]

    The judge gave reasons for allowing a 25% discount in addition to the 25% discount for the plea of guilty: [16]

28. [70]

    The Crown submitted that the present case does not fall within any of the categories described by Basten JA in R v Windle. It also contended that the judge failed to consider the likelihood of the respondent’s guilt being discovered, or established, they being the two components giving rise to leniency discussed in R v Ellis. [17]

29. [71]

    There was criticism of the respondent’s submissions at first instance and on appeal for their focus upon what the police knew at the time the respondent made the admissions. The Crown accepted that this was relevant but submitted there was more to be considered when determining the likelihood of guilt being discovered and established: “the clock doesn’t stop when the applicant makes admissions”. [18]

30. [72]

    The Crown submitted that this case did not fall within the Ellis principle because: [19]

31. [73]

    It was submitted that it was not open for the sentencing judge to find that without the respondent’s admissions “it is highly unlikely that the Crown would have been able to bring a case against any of the four adults that were under suspicion”. The police interview material referred to and attached to the solicitor’s affidavit did not justify the finding. [20]

32. [74]

    An issue of some significance was briefly touched upon in the oral submissions for the Crown, namely that “the respondent bore the onus of proof” in relation to whether an Ellis discount should be provided. [21]

33. [75]

    The Crown maintained that Ground 3 should be upheld no matter how Ground 2 was decided. A 25% reduction of sentence for the applicant’s admissions to police could only be provided pursuant to s 23 whether the admissions came within the purview of R v Ellis or not. The judge did not refer to s 23 at all. He said nothing about the factors in s 23(2), the requirement of s 23(3) that a sentence not be unreasonably disproportionate, or why he chose 25% as the discount. As to the latter, the Crown was critical of the judge trying to determine the quantum of a discount by reference to discounts applied in other cases, on different facts. [22]

34. [76]

    The respondent supported the correctness of the factual findings of the primary judge referred to above. He maintained the submission made in the court below, to the effect that “police simply did not know who was responsible for the injuries” and “the police had absolutely no idea, of the limited number of people who were there, who it was that had inflicted the injuries”. He also maintained that the baby’s mother was still a suspect as indicated by the nature of the questioning of her on 13 November 2018. [23]

35. [77]

    While accepting the judge did not expressly refer to s 23 in his sentencing remarks, the respondent noted that both parties had addressed it in their submissions. For example, there was an exchange in which the judge asked the Crown for assistance in relation to the quantum of discount that should be applied, and the Crown responded by providing two cases containing discussion about the application of s 23. It was submitted that in these circumstances it was inconceivable that the judge did not consider the requirements of the section. [24]

36. [78]

    An indication of the judge having applied s 23 was said to be his reference to the Crown being unable to prosecute any of the four adults who were under suspicion. This was said to be an allusion to the requirement in s 23(2)(b): the significance and usefulness of the offender’s assistance to authorities. It was submitted that it could be inferred the judge had regard to some of the other matters listed in s 23(2); he just did not announce a finding in relation to each. [25]

37. [79]

    As to the extent of the discount allowed, the respondent submitted that it was a discretionary decision that could only be challenged under the criteria in House v The King (1936) 55 CLR 499; [1936] HCA 40. The respondent referred to cases in this Court in which there have been observations about levels of discounts at or even exceeding 50% for a plea of guilty in conjunction with assistance to authorities. [26]

38. [80]

    The respondent supported the 25% discount allowed by the sentencing judge as being consistent with the language used by the Chief Justice in R v Ellis. Reference was made to an observation made by the sentencing judge during the course of submissions that “Ellis doesn’t talk about minor discounts, does it? … I don’t understand Ellis to be used in terms of minor adjustments”. [27]

39. [81]

    Absent evidence from a police officer, it is speculative to say that police regarded all of the known adults as suspects. The manner in which police asked questions in interviews gave rise to competing inferences that could only be resolved by evidence which was absent. It was not open to the judge to say that without the respondent’s admissions, “as far as the police were concerned, there were a number of potential offenders”.

40. [82]

    Without the respondent’s admissions there was evidence that the victim was perfectly healthy until she spent 20 minutes alone with the respondent while her mother was in the shower. She immediately exhibited extreme distress which must obviously have related to her having, at that time, sustained the injuries that were detected when she received medical attention the next morning.

41. [83]

    The respondent did not voluntarily disclose “otherwise unknown guilt” because his guilt was discoverable and could be established by the available circumstantial evidence independently from his admissions. Similarly, his admissions did not disclose additional criminality of which the police would not otherwise have been aware. Therefore, they did not come within any of the three situations given by way of example by Basten JA in Windle v R.

42. [84]

    The Crown submission that this case did not fall within the R v Ellis principle should be accepted. The learned sentencing judge was in error in taking into account, in the absence of evidence, that police had no case against the respondent without his admissions.

43. [85]

    Even if the matter was within R v Ellis, it was mandatory for the judge to consider the criteria in s 23(2) before allowing any reduction of sentence. His Honour made no reference to s 23 or any of its mandatory requirements.

44. [86]

    In considering the factors in s 23(2) the following conclusions were available. The respondent’s admissions were significant and useful to the extent that he acknowledged his guilt. His plea of guilty did the same. This supported a finding of genuine remorse, which the judge made.

45. [87]

    The admissions were truthful in that the independent circumstantial evidence supported that the respondent did what he described. Beyond that, however, whether his admissions were complete and reliable is impossible to say. The nature and extent of the admissions were of a simple kind: answering questions when confronted by police in an interview. This may be contrasted with assistance by offenders who are willing to give evidence against others, or who engage in covert investigatory activities and the like. The timeliness issue involved the respondent having denied his guilt when first confronted by police and maintaining that denial for days until confronted once again. There was no suggestion of harsher custodial conditions, injury, or danger to the respondent or his family. In short, the s 23(2) factors did not provide any significant support for a reduction of sentence.

46. [88]

    The sentencing judge was in error in allowing a discount on sentence pursuant to R v Ellis. In coming to the view that such a discount was able to be granted, he was in error in failing to comply with the requirements of s 23. Both Grounds 2 and 3 should be upheld.

Ground 4 – manifest inadequacy

1. [89]

   The Crown relied upon the specific errors it contended for under the preceding grounds as a partial explanation for the manifest inadequacy of the sentence imposed. In relation to the objective seriousness of the offence discussed under Ground 1, the Crown contended this Court would find that it was within the mid-range. [28]

2. [90]

   The Crown accepted that the admissions of the respondent were relevant to the question of his remorse and prospects of rehabilitation. The positive findings of the primary judge in relation to those issues, and the allowance of 25% for the early plea of guilty, were not challenged. [29]

3. [91]

   However, the ultimate submission of the Crown was that a sentence of 1 year and 9 months with a non-parole period of 12 months, was unreasonable or plainly unjust.

4. [92]

   The respondent submitted that the starting point for the sentence (3 years and 6 months) is not inadequate having regard to the judge’s assessment of the relative level of objective seriousness of the offence. The reduction of the non-parole period upon finding special circumstances was not excessive. [30]

5. [93]

   Counsel emphasised the offence having lifelong devastating consequences not only for the victim but for the respondent as well. She referred to aspects of this that were described in his affidavit of 6 August 2020. [31]

6. [94]

   The respondent also relied upon the judgment of Kiefel, Bell and Keane JJ in CMB v Attorney General (at [78]) where two points were made. [32] First, s 23 contemplates that a sentence may be disproportionate; the prohibition is upon imposing a sentence that is unreasonably disproportionate. Second, the question for this Court is not whether it considers the sentence reduced in accordance with s 23 to be unreasonably disproportionate to the nature and circumstances of the offence. The question is whether in the exercise of the discretion that the law reposed in the primary judge it was open to him to determine that the sentence was not unreasonably disproportionate.

7. [95]

   The sentence imposed upon the respondent is manifestly inadequate and this is regardless of the Ellis and s 23 issues. The starting point of 3 years and 6 months before any discounting occurred for the respondent’s early plea of guilty or his voluntary disclosure of his responsibility for causing the grievous bodily harm to his four-week old baby is unreasonable and unjust. It completely fails to reflect the magnitude of the harm caused which transcends by a large margin the threshold for the definition of grievous bodily harm.

8. [96]

   The comments made previously about the objective seriousness of the offence in upholding Ground 1 need not be repeated. It is well to point out, however, that while an offence such as this can occur quickly and with little in the way of violence (as that concept is generally understood), the victim was at the extreme end of the range of defenceless human beings and the level of harm caused is catastrophic. It is accepted the respondent did not intend to cause such harm but that is irrelevant; if there had been such an intention the charge would have been a far more serious one.

9. [97]

   The discounting of the sentence for the early plea of guilty is not something that the Crown challenges. But the further discounting by 25% for the respondent’s assistance to authorities was not open to the sentencing judge and exacerbated the inadequacy of the sentence.

10. [98]

    Given the conclusion I have reached in relation to Grounds 2 and 3 there is no purpose to be served by discussing the extent of the discounting at any length. In short, the authorities do not support the proposition canvassed at the hearing before the primary judge that R v Ellis requires the discounting of sentences by any particular margin. So much appears in the consideration of the majority judges in Ryan v The Queen as discussed by James J in R v GLB which I have set out earlier. It might be observed as well that the primary judge was not assisted by a bold submission made by counsel then appearing for the respondent that she had read cases, which she did not identify, which supported the proposition that the combined discount tends to be around 50% to 60%.

Residual discretion

1. [99]

   Having found error, including that the sentence is manifestly inadequate, it is a matter for the Crown to establish that the Court should resentence as opposed to dismissing the appeal: CMB v Attorney General at [32]-[33] (French CJ and Gageler J), at [54] (Kiefel, Bell and Keane J).

2. [100]

   French CJ, Crennan and Kiefel JJ said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36]:

3. [101]

   The Crown submitted that there was no circumstance which would require the appeal to be dismissed. There has been no relevant delay in instituting or resolving the appeal and there was nothing done by the Crown that caused or contributed to any specific error made by the sentencing judge. The respondent’s currently expected release to parole is not “imminent”; the non-parole period expiring on 13 August 2021. [33]

4. [102]

   The Crown’s ultimate submission was that the sentence is so far below the range of sentences that could justly be imposed that it should be viewed as undermining public confidence in the proper administration of criminal justice. [34]

5. [103]

   The respondent submitted that simply upholding any of Grounds 1 to 3 would serve a purpose of Crown appeals in declaring important matters of principle. Delay was a significant factor in that the respondent will have served half of his non-parole period. [35]

6. [104]

   The respondent also submitted that it would not be contrary to the public interest to dismiss the appeal in the exercise of the residual discretion if doing so allowed a relatively young man whose offending was out of character, and whose risk of reoffending was low, to rebuild a useful life for himself and once again become a productive member of the community. [36]

7. [105]

   A final factor in favour of exercising the discretion against intervention was that the Crown had effectively acquiesced in the allowance of a 25% discount pursuant to R v Ellis by failing to submit that such a discount was unavailable. The Crown had, in effect, failed in its duty to assist the court to avoid appellable error: CMB v Attorney General at [64] (Kiefel, Bell and Keane JJ). [37]

8. [106]

   The last matter must be rejected. The passage in CMB v Attorney General referred to is relevant “[w]here the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate”. That is not what occurred in this case; the judge gave no indication of what sentence he was contemplating imposing. I am satisfied that the prosecutor endeavoured to provide assistance to the judge with the cases he referred to (R v GLB and R v AA) including pinpoint paragraph references, but the substance of which (unfortunately) were not reflected in the sentencing remarks.

9. [107]

   The Court should intervene and resentence. To refrain from doing so and to leave in place a grossly inadequate sentence for such a serious offence would put at risk the preservation of public confidence in the administration of criminal justice.

Re-sentence

1. [108]

   An affidavit by the respondent was read at the hearing. It includes that he has employment available upon release and hopes to resume the relationship with his wife. [38] The affidavit otherwise attests to matters that are not unexpected in terms of the respondent finding gaol life difficult but being a productive and well-behaved inmate. He has retained the support of his family with whom he maintains contact, albeit with the restrictions imposed as a result of the pandemic.

2. [109]

   Two matters in the affidavit were contested by the Crown. First, the claim, “I was seeing a psychologist before going to gaol” is contradicted by other evidence. Second, a claim that when he committed the offence he was “working too much and under a lot of stress” had been raised before the sentencing judge and specifically rejected. [39]

3. [110]

   The Crown observed that, having found special circumstances, the primary judge had very substantially reduced the non-parole period from 75% of the total term to 57%. Consistent with submissions made at first instance, the Crown conceded there could be a finding of special circumstances, but it would only entail “a modest reduction” of the non-parole period. [40] In my view, the reasons given by the primary judge only support a modest reduction.

4. [111]

   For the reasons given for upholding Ground 1 of the appeal, I am of the view that the objective seriousness of the offence is at the top of the mid-range.

5. [112]

   The 25% discount for the respondent’s early plea of guilty as well as other favourable findings of a subjective nature should be retained. They include that the respondent was genuinely remorseful, he has good prospects of rehabilitation and is unlikely to reoffend. Specific deterrence is not significant but general deterrence is quite significant.

6. [113]

   The starting point for the sentence (before the discount for the plea of guilty) should be 6 years.

Orders

1. [114]

   I propose the following orders:

   1. (1)

      Crown appeal allowed.

   2. (2)

      Quash the sentence imposed in the District Court on 17 August 2020 and in lieu, sentence the respondent to imprisonment comprising a non-parole period of 3 years with a balance of the term of the sentence of 1 year and 6 months. That is a total sentence of 4 years and 6 months. The sentence is to date from 14 August 2020. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 13 August 2023.

   3. (3)

      Noting the application of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) to the child victim in the proceedings, revoke the non-publication and suppression orders made in the District Court on 14 August 2020.

2. [115]

   ADAMSON J: I agree with R A Hulme J.