Holt v R (Cth)

[2021] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Holt v R (Cth) [2021] NSWCCA 14

Hearing dates:

26 November 2020

Date of orders:

19 February 2021

Decision date:

19 February 2021

Before:

Johnson J at [1]
R A Hulme J at [2]
Wilson J at [3]

Decision:

1 Leave to appeal granted

2 Appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – Family Law Act offence – dealing with proceeds of crime – offence taken into account on s 16BA schedule – schedule offence of greater seriousness than principal offence – use of s 16BA schedules – propriety of “roll-up” offence where one count encompassed 64 acts - application of quantum of discount for plea of guilty in federal sentence matters - question of concurrence and accumulation – use of aggregate sentence in Federal sentencing - relevance of mental illness to sentence – amelioration of sentence not automatic

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 NSW

Criminal Appeal Act 1912 (NSW)

Criminal Code 1995 (Cth)

Family Law Act 1975 (Cth)

Cases Cited:

Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413

Aslan v R [2014] NSWCCA 114

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581

Baden v R [2020] NSWCCA 23

Bae v R [2020] NSWCCA 35

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26

Croxon v R [2017] NSWCCA 213

DG v R [2017] NSWCCA 139

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; (2010) 205 A Crim R 1

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

DPP v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301

El-Youssef v R [2010] NSWCCA 4

Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70; (2018) 272 A Crim R 266

Kaurasi v R (Cth) [2020] NSWCCA 253

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; (2014) 238 A Crim R 134

Milat v R, Klein v R [2014] NSWCCA 29

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1;

R v Eedens [2009] NSWCCA 254

R v Lamella [2014] NSWCCA 122

R v Ly [2014] NSWCCA 78

R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; (2000) 115 A Crim R 104

Singh v R [2018] NSWCCA 60

Xiao v R (Cth) (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Timothy Holt (Applicant)
Director of Public Prosecutions (Commonwealth) (Respondent)

Representation:

Counsel:
J Paingakulam (Applicant)
S Flood (Respondent)

Solicitors:
Legal Aid (Applicant)
Director of Public Prosecutions (Commonwealth) (Respondent)

File Number(s):

2018/00324543

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 March 2020

Before:

Bright DCJ

File Number(s):

2018/00324543

Judgment

1. JOHNSON J: I agree with the reasons of Wilson J and with her Honour’s proposed orders.

2. R A HULME J: I agree with Wilson J.

3. WILSON J: On 12 March 2020 the applicant, Timothy Michael Holt, was sentenced before the District Court for two offences connected with the unlawful dissemination by him of information concerning Family Court proceedings. A third offence was taken into account when sentence was imposed upon him.

4. The applicant had pleaded guilty to an offence contrary to s 121(1)(a) of the Family Law Act 1975 (Cth) of disseminating information identifying a party to proceedings before the Family Court (count 1), and to a second offence (count 2) of dealing with the proceeds of crime, contrary to s 400.6(1) of the Criminal Code 1995 (Cth) (“the Code”). The former is an indictable offence (by operation of s 121(5) of the Family Law Act) punishable by imprisonment for a period not exceeding one year; the latter carries a maximum penalty of 10 years imprisonment. The offence taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) when sentence was imposed for the Family Law Act matter was one of using a carriage service to offend, contrary to s. 474.17 of the Code, which carries, when dealt with on indictment, a maximum penalty of 3 years imprisonment.

5. For count 2, the Code offence, her Honour Judge Bright imposed a sentence of imprisonment for 18 months, with the sentence commencing on 12 March 2020, and to expire on 11 September 2021. For the Family Law Act offence, count 1, and taking into account the offence of using a carriage service to offend, a partially cumulative sentence of imprisonment for one year was imposed, commencing on 12 March 2021 and expiring on 11 March 2022. Her Honour ordered the applicant’s release after one year and 4 months, on him entering into a recognisance to be of good behaviour for 2 years. His release date is 11 July 2021. The overall sentence expires on 11 March 2022.

6. The applicant seeks leave to appeal against that sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), proposing – by an Amended Notice relied upon with the leave of this Court - three grounds of appeal, as follows:

1. The sentencing judge erred by imposing the statutory maximum penalty for count 1 after affording the applicant a 25% discount on sentence for the utilitarian value of his guilty plea;

2. The sentencing judge erred in making the sentence for count 1 very substantially cumulative on that for count 2; and

3. The sentencing judge erred by imposing the statutory maximum penalty for count 1 on an offender whose moral culpability was reduced by reason of mental illness.

The Proceedings in the District Court

7. Having entered pleas of guilty in the Local Court to the two charges against him, the applicant was committed for sentence to the District Court sitting at Gosford. He appeared before the sentencing judge on 21 February 2020. As the result of an amendment made to the particulars of the charges, an indictment was presented against the applicant and, upon arraignment, he again entered pleas of guilty.

The Facts of the Offences

8. A statement of facts was before the sentencing court as part of Ex. A in the Crown case, and her Honour found the facts to be as asserted in that statement.

9. In summary, the offences related to proceedings before the Family Court of Australia between Mr W and Ms D, the parents of young twin girls, who each sought parenting orders for the children. Ms D’s father and mother (or step-mother, it not being clear on the evidence), also become involved in the protracted litigation.

10. During the course of the litigation, Ms D made allegations against Mr W, asserting that he had sexually abused the twins. The allegations were investigated by police in Queensland. No charge or charges were brought against Mr W, the allegations having been found to be unsubstantiated.

11. On 10 April 2013, the Family Court made orders giving Mr W sole parental responsibility for the children, with Ms D allowed supervised access to them. Ms D was unhappy with that outcome and, over the next year, sought the assistance of two members of the “Australian Anti-Paedophile Party”, Mr AA and Mr BB, to abduct the children, in breach of the orders of the Family Court. (AA and BB have been anonymised as each are presently before the courts.)

12. On 4 April 2014 Mr W took the twins, then seven years old, to school. After he had left the school campus, Ms D approached her daughters and asked them to accompany her to her car to “get away”. The children went with Ms D as she drove to a nearby park. There they met with Mr AA and Mr BB, who assisted Ms D to flee with the girls.

13. Ms D managed to evade authorities for four years, keeping the children from their father. She moved frequently, including by travelling interstate. She disguised herself and the children by using false names and credentials, and changing hair colours. She communicated using encrypted messaging services and telephones obtained using false subscriber details.

14. On 7 September 2016, a warrant issued for Ms D’s arrest. The warrant was executed on 4 May 2018, after the Australian Federal Police (“AFP”) discovered Ms D’s whereabouts, and arrested her. The twins, who were by that time 11 years old, were restored to Mr W’s parental control.

15. The applicant became involved in these events as a consequence of a website he administered, known as “WikiDetectives”. He was approached by Mr AA and Mr BB and, at their request, set up a website named “freemissingtwins.com”, together with corresponding Facebook, YouTube, and Twitter accounts. From about 28 March 2017 to 7 February 2018, the applicant used these websites to publish a large volume of material described variously as “leaks”, “press statements” and “letters of offer”. He published 85 “leaks”, 21 “press statements” and 45 “letters of offer”. The applicant also wrote and published “editorials” about the material published on the websites. In total, 64 of the publications made by the applicant both included accounts of the legal proceedings before the Family Court, and identified either a party or a witness to the proceedings.

16. The “leaks” contained documents from the Family Court proceedings involving Mr W, Ms D, and Ms D’s parents, including affidavits of expert witnesses, and a number of audio-visual recordings of interviews between the twins and police investigating the sexual abuse allegations against Mr W. The publication of this material, being “account[s] of proceedings” before the Family Court, breached both provisions of the Family Law Act, and a specific non-publication order made by the Family Court on 10 April 2014.

17. The publications alleged corruption amongst politicians and within law enforcement and the family law jurisdiction, and named individual police officers, child safety officers, psychologists, judges and lawyers who worked in the family law area. It was alleged that the litigation between Mr W and Ms D had been the subject of corrupt conduct by “paedophile enablers”, including a named judicial officer.

18. The 64 incidents of publication of this material, which clearly identified Mr W and the twins, as well as others connected with the litigation, constituted the offence that was count 1 against the applicant.

19. The offence taken into account when sentence was imposed for count 1, using a carriage service to offend, reflected the many publications to the internet that referred to Mr W as a paedophile and rapist, and addressed and targeted him directly in a highly offensive way. Mr W was repeatedly described as a “paedophile father” and referred to as a “LITTLE BULLYING COWARD WHO RAPES LITTLE GIRLS”. In one publication, addressed to Mr W, the applicant asserted that he would personally ensure that every sports association and club, every school, every Rotary or Lions Club, every professional medical and nursing association, would be informed of Mr W’s asserted “child raping tendencies”. One example of these publications suffices to give a flavour of the offending posts:

[Mr W] “ – you are a pig of the first order! Not only do you infect your wife with a sexually transmitted disease you piece of scum you do the same to your daughter! The other daughter bleeds from her anus! Where exactly does your depravity stop? Is the dog safe you perverted piece of shit?”

20. The applicant was paid for setting up the web and social media pages, and making these publications through them. He received a total of $28,500, deposited in varying sums by Mr AA and Ms D’s father, to the applicant’s personal bank account and to an account he held in the name of WikiDetectives. The applicant received the monies believing them to be the proceeds of crime. This money, together with social security payments, was the applicant’s only income in the period February 2017 to September 2018.

21. On 5 May 2018, AFP officers executed a search warrant at the applicant’s home, discovering a large quantity of documents and electronic files that originated with the Family Court litigation involving Mr W, Ms D, and Ms D’s parents. He was arrested.

22. The applicant was interviewed by AFP officers in June and September 2018. He acknowledged being the sole owner and operator of WikiDetectives, and posting material through it to the internet that he knew was prohibited from publication by the Family Law Act, and which identified parties to litigation before the Family Court.

23. The applicant said that he worked with a “crew”, of whom Mr BB was his “chief editor”. He described receiving and verifying material relating to the Mr W/Ms D family law proceedings, which he published on the website he had set up, and shared to the related social media accounts established by him. He said he had put an “information bounty” of $20,000 “on [Mr W]’s head”, and maintained a file of Family Court documents. He communicated with his associates using encrypted message servers. The applicant acknowledged that the material he had posted about Mr W was defamatory. He denied receiving payment for his publications, acknowledging only that Mr AA made “donations” to him for an unrelated purpose.

24. As at 5 September 2018, when the second police interview took place, the relevant websites were still active. They were taken down at about that time.

Other Evidence in the Crown Case

25. Setting aside a Children’s Court entry from 1996, the applicant’s criminal history contained entries for driving offences in 1997, 1998 and 2004; obtaining money by deception in 1998; two counts of driving whilst disqualified in 2000; further such offences in 2001, 2004, 2011, 2012, and 2018; and a conviction for possessing a prohibited drug in 2017. He had previously been sentenced to periodic detention.

26. A victim impact statement prepared by Mr W described the very significant emotional, social, and financial impact that the publication of the material by the applicant had on him. Mr W was greatly hurt and humiliated by the publications; he was socially ostracised by those who had seen the material, and relationships with others were damaged. When the “bounty” was published by the applicant, Mr W became fearful for his safety. He was obliged to relocate, at considerable financial and personal expense.

The Applicant’s Case

27. The applicant did not give evidence.

28. He relied upon a report from Dr Matthew Conroy, Clinical Neuropsychologist. Dr Conroy saw the applicant on 10 January and 17 January 2020. The applicant was accompanied by his mother, with whom he lived at the time.

29. The applicant gave a history of being one of four children; he had an older brother, who was dead, and two younger sisters. He had no contact with his father. The applicant has three children, the product of two separate relationships, each of which had ended. Of his children, he had contact with a son, who was then aged 20. The applicant told Dr Conroy that he was in receipt of a disability pension due to an issue with his back. He had formerly operated his own business, WikiDetectives, the object of which he described as “stopping corruption”.

30. The applicant had an unremarkable childhood, although he was slower to read and write than other children. He was expelled from school in Year 7 for violence towards a teacher and, reportedly, was not accepted into any other school thereafter.

31. The applicant has a history of psychiatric problems, having presented to hospital in 2005 and 2015 with psychotic features. On his 2015 presentation, the psychiatrist who saw him referred to a long history of schizoaffective disorder, characterised by persecutory and grandiose delusions, mood disturbance, and psychomotor agitation. He had received treatment for his condition over the previous 12 years, but was noted to be frequently non-compliant to medication, and to use illicit drugs.

32. Dr Conroy observed the applicant to demonstrate adequate self-care. He had good comprehension and concentration and was able to attend to the psychometric tasks set for him. He acknowledged previous use of cannabis and amphetamine, and he continued to smoke tobacco heavily. He was treated with anti-psychotic medications. The applicant reported having been kidnapped by a paedophile ring when he was eight years old, and abused over a period of six years. He gave an account of a close business relationship with the founder of WikiLeaks.

33. Dr Conroy administered several psychometric tests to the applicant. Based on the results, he concluded that the applicant had a Borderline Intellectual Disability, with impairment in a number of areas, including memory and learning. He demonstrated grandiose delusions, such as that surrounding WikiLeaks, and his presentation was consistent with the Schizoaffective disorder referred to in 2015. Dr Conroy concluded:

“The current assessment confirms that Mr. Holt suffers from a combination of cognitive and psychiatric issues. His borderline intellect places him at risk of reduced functioning and increased vulnerability; this assessment is the first time that the degree to which his cognition is impaired has been quantified. His cognitive impairments appear to be further exacerbated by his mental health issues; his pattern of significant impairments in learning, memory and executive functioning are consistent with the cognitive sequalae of Schizoaffective Disorder. His impaired reasoning and cognitive rigidity are particularly noteworthy and are likely to result in difficulties with decision making.”

The Submissions of the Parties

34. The Crown submitted that each offence was a very serious example of the particular type of offending. It was contended that the Family Law Act offence was so serious as to warrant the imposition of the maximum sentence. The offence had been protracted and persistent, and involved 151 individual publications to the internet, 64 of which – including recordings of the police interviews with the children - identified the parties or witnesses to the Family Court litigation. Much of the material was seriously offensive. It had the overall effect of undermining the authority of the Family Court.

35. The Code offence was described as “midrange offending”, the gravity resting on the significant amount of money received, and the use to which it was put, being to fund the applicant’s criminal activities. The harm done was said to be profound. A degree of accumulation was called for in the imposition of sentence. Although declining to quantify the level of any discount on sentence that should be afforded to the applicant to recognise the utilitarian value of his pleas of guilty, the Crown submitted that a discount was available.

36. The applicant submitted that, although he would not “be heard against” a submission that the maximum penalty was warranted, the Family Law Act offence could not be regarded as at the highest end of the range of gravity, when compared with offences committed by high public profile individuals who had published material to mass media, such as radio. The Code offence was conceded to be “above the low range” of gravity. The applicant accepted that some degree of accumulation was open, as “it is separate offending and one is not subsumed by the other”. It was submitted, however, that the two sentences should be “substantially concurrent”. The applicant argued that he was entitled to a discount on the sentences that would otherwise be imposed of 25% to recognise the value of his early pleas of guilty.

The Remarks on Sentence

37. In delivering her judgment on sentence, the sentencing judge set out the facts of the offences, holding that the conduct reflected by count 1 was “criminality of a very high order”, which was “at the very top end of the spectrum of offending for this offence”; whilst the conduct reflected by count 2 was in the middle of the range of objective seriousness. The applicant’s criminal history operated to deprive him of the leniency that would have been extended to an individual without an offending background.

38. Her Honour referred extensively to the report of Dr Conroy, and concluded that there was a causal connection between the offences and the applicant’s disabilities, which lessened his moral culpability for his conduct.

37. Referring to Xiao v R (Cth) (2018) 96 NSWLR 1; [2018] NSWCCA 4, the sentencing judge observed that she intended to apply a 25% discount on sentence “in respect of each matter”. She continued:

“In relation to count 1, I am satisfied that the criminality is so grave having regard to the objective facts as outlined and after taking into account the schedule 16BA matter and also taking into account the plea of guilty that the appropriate penalty is the maximum term of imprisonment of one year.”

40. Her Honour determined that some partial level of accumulation of penalty for each offence was required, as the criminality of one offence did not fully comprehend the criminality of the other.

The Application

41. The applicant submits that this Court should conclude that the sentence proceedings were infected by error and that, on exercising the sentencing discretion afresh, a lesser sentence should be imposed.

42. In its response to the application for leave to appeal, the Crown conceded that there was error in the sentence imposed for count 1 (although of a different nature to that complained of by the applicant), and that there was further error with respect to the sentence imposed for count 2. The Crown argued, however, that no lesser sentence was warranted in law.

43. For the reasons discussed below, I have concluded that there was error in the sentences imposed upon the applicant, as the Crown conceded. The error was of the Crown’s making.

44. The proceedings against the applicant were flawed from the moment the Crown presented the present charges, and chose to prosecute its case as it did. As the sentencing judge observed in discussion with the parties during the proceedings on sentence, the prosecutorial decisions made by the Crown left the court in an impossible situation by wrongly, and significantly, constraining its sentencing discretion. The inevitable outcome of that was to cause the sentencing process to miscarry.

45. Count 1 is an offence contrary to s 121(1) of the Family Law Act. The provision is in these terms:

121 Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

46. The purpose of this offence is to criminalise the dissemination of any part or account of proceedings before the Family Court in such a way as to identify the litigants, witnesses, or others concerned with the proceedings. The offence offers protection to the privacy of persons engaged in or connected with Family Court litigation. In an area of law dealing with highly sensitive family matters, protection of that nature is vital. Plainly, if a litigant or witness cannot be assured of the security of the information given or otherwise disclosed to the court during litigation, such persons are less likely to entrust the court system with the peaceful resolution of family disputes.

47. With a maximum penalty of one year in prison, it should have been apparent to the Crown that a single count of an offence of this nature could never reflect the 64 separate instances of calculated and intentional disclosure by the applicant of information from or about the court proceedings between Mr W and Ms D, including the publication in full of recordings of police interviews with two very young girls; such publications being made for financial gain, over a 10 month period, using four separate internet sites, where viewers of the information could copy and further disseminate the material with ease and in finitum.

48. To further ask the sentencing court to take into account another serious crime when determining the penalty to be imposed for count 1, a crime which of itself carried a maximum penalty three times greater than that applicable to the principal offence, compounded the wrongness of the course adopted by the Crown. It was simply not possible for her Honour to have regard to the offence on the s 16BA schedule in the way required by authority.

49. In Attorney General’s Application under s 37 of the Crimes (Sentence Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581 Spigelman CJ said of that process:

“[…] although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences … These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.”

50. Had the s 474.17 Code offence been prosecuted on indictment, a sentence in the order of 18 months (after applying the discount of 25%) would have been in order in my view, having regard to the sustained and highly malicious and dangerous nature of the on-line campaign conducted against Mr W, for which the applicant received monetary reward. Taken into account against an offence which carried a maximum penalty of 1 year, there was no prospect that the sentence imposed for the principal offence could have reflected the need for personal deterrence, or the community’s entitlement to exact retribution for a serious offence.

51. In placing this offence on a schedule to count 1, the Crown overlooked or ignored what was said by Spigelman CJ in Attorney General’s Application at [50]:

“It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender's conduct to be appropriately reflected in the sentence.”

52. That point, having been firmly made on numerous occasions by the superior courts, should not have been unknown to the Crown. It is discussed in numerous decisions of this Court, including CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26; R v Eedens [2009] NSWCCA 254; El-Youssef v R [2010] NSWCCA 4; Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [26]; R v Lamella [2014] NSWCCA 122 at [48]; DG v R [2017] NSWCCA 139; and Croxon v R [2017] NSWCCA 213.

53. Against a substantial body of authority condemning the procedure, it is difficult to understand how the Crown could have regarded it as appropriate to place the s 474.17 Code offence on a s 16BA schedule to the less serious offence constituted by count 1.

54. Having regard to all these aspects of the matter, it is unsurprising that the sentencing process overall miscarried.

Ground 1

55. The applicant specifically complains, by ground 1, that her Honour was in error in imposing the maximum penalty for count 1, in circumstances where she had determined that it was appropriate to recognise the plea of guilty entered by the applicant by awarding the maximum discount of 25% on the sentence that would otherwise have been imposed.

56. The Crown conceded error with respect to the sentence imposed for count 1, but disputed the basis of it, arguing that it was open to the sentencing judge to allow a quantified discount on sentence of 25%, but still impose the maximum penalty by way of sentence. The error, in the Crown’s argument, was in her Honour failing to mitigate the sentence that was imposed to reflect the finding she made of reduced moral culpability flowing from the applicant’s mental illness.

57. The Crown’s concession, but not the basis for it, should be accepted.

58. Although, as a Federal offender, the applicant was sentenced in accordance with the regime imposed by Part 1B and particularly s 16A of the Commonwealth Crimes Act, that is not inconsistent with the application of the guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; (2000) 115 A Crim R 104 and the principles set out therein by Spigelman CJ at [160] (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). That follows from the decision in Xiao, wherein this Court, constituted by Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J (as her Honour then was), and Bellew J said, at [278]:

“[…] it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing [footnotes omitted].”

59. The question of applying a discount on sentence when sentencing a Federal offender has now been considered by this Court on a number of occasions, and the law should be well understood, particularly by those appearing for the Commonwealth Director of Public Prosecutions. It is discussed in Singh v R [2018] NSWCCA 60, Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70; (2018) 272 A Crim R 266, Baden v R [2020] NSWCCA 23, Bae v R [2020] NSWCCA 35 and Kaurasi v R (Cth) [2020] NSWCCA 253, among others. The discussion at [49] – [57] in Bae v R (per Johnson J, with whom Bell P and Walton J agreed) is particularly useful.

60. In summary, the authorities establish that, in sentencing for a Federal offence, a sentencing judge is entitled to take the utilitarian value of a plea of guilty into account. The level of the discount to be applied is a matter within the discretion of the sentencing judge, although the time at which the plea is entered is highly relevant to that question. In that regard, guidance may be drawn from the principles set out in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] – [33]. It is desirable to specify the extent of the discount, to promote transparency in sentencing. A plea entered prior to committal would ordinarily attract a discount on sentence of 25%.

61. The fundamental principle in sentencing for Federal offences is that the sentence imposed must be of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act (Cth). In some cases, that may mean that it will not be appropriate to allow any discount on sentence in recognition of the entry of a plea of guilty, even for a plea entered at the earliest opportunity, since to do so would reduce the sentence below one of appropriate severity. [1]

    1. It is noted that the discussion of this issue has no relevance to matters to which Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) has application.

62. That approach is consistent with what was said by Spigelman CJ in Thomson & Houlton, at [157] - [158]:

“There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184).

There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42]).”

63. The point was further discussed in Milat v R, Klein v R [2014] NSWCCA 29 from [70], per R A Hulme J, with whom Bathurst CJ and Hall J agreed.

64. This was a case that fell squarely within what was said in those decisions, although it must be stated that even a sentence of imprisonment for one year, with no discount allowed, could not meet the requirements of s 16A(1), and nor could it reflect the need for specific deterrence suggested by the offence taken into account against count 1, or exact retribution on behalf of the community for that crime. The applicant made 64 separate publications of material drawn from or relating to Family Court proceedings, each of which could have constituted a separate charge, and he did so for financial gain. The charged offence was not one which allowed the sentencing court to properly exercise the sentencing discretion. As the sentencing judge observed, the court was put “in an extremely difficult position to properly exercise sentencing principles”.

65. During the proceedings on sentence, her Honour made very clear her view that she could not impose any sentence less than the maximum penalty with respect to count 1, because of the gravity of the crime. She told the parties:

“[…] Every time he discloses a document that has someone’s name in it, it’s a separate offence, so for the criminality to be properly reflected it is very difficult to properly reflect it in one rolled up offence. So to reflect the gravamen of the offence, which is what you are asking the Court to do, really it should have been dealt with in a different way, but now the Court is constrained because it has been rolled up into one offence that has a maximum penalty taking into account a very serious Form 1 matter of 12 months. That’s the difficulty that the court has.

This was a deliberate disclosure of identity, for a particular purpose. So that elevates the criminality. It was conduct that occurred – there are multiple criminal acts over a lengthy period of time. I say all those factors, even though there is only one charge, makes it difficult to see how anything less than the maximum penalty is appropriate when I also have to take into account the Form 1 matter which of itself discloses very serious criminality.”

66. The applicant was on notice during the proceedings that a sentence of 12 months imprisonment was likely to be imposed upon him, notwithstanding his plea. That was a course that was open to her Honour to take, and it was clearly the course she had in mind when hearing submissions.

67. However, having then decided to grant a discount quantified as one of 25%, and having announced that conclusion during her remarks on sentence, there was error in the failure to adjust the quantum of sentence appropriately. The discount must be applied arithmetically to a starting point, otherwise it is illusory. It is a nonsense to contend that a quantified discount can be applied in some amorphous way. The Crown’s argument that it was open to the sentencing judge to do just that, and allow a quantified discount, subsequently failing to award the announced discount in the sentence imposed, should be rejected.

68. Any sentence imposed upon an offender must reflect and be consistent with the findings of the sentencing judge as expressed in the remarks on sentence. If a quantified discount is awarded, that discount must be arithmetically applied to the sentence that would otherwise have been imposed. That is so whether the offender faces sentence for Federal or State offences.

69. Her Honour’s error was not in refusing to reduce the sentence to reflect the utilitarian value of the plea, the offence being of such gravity as to require that approach; it was in failing to do so having announced that she would award a quantified discount on sentence.

70. Leave should be granted to advance ground 1, as error to that extent has been established.

Ground 2

71. By this ground the applicant complains that her Honour was in error in the level of accumulation inherent in the structure of the sentences. The sentence for count 2 was one of 18 months imprisonment, which commenced on the date when the sentence was imposed, 12 March 2020. The sentence imposed for count 1 is to commence on 12 March 2021, after the applicant serves two-thirds of the total sentence for count 2.

72. The applicant argues that, since the proceeds of crime that the applicant dealt with was the payment for the commission of count 1, it was not open to the sentencing judge to accumulate the sentence to the substantial extent she did.

73. The Crown, whilst acknowledging that the extent of the accumulation was a discretionary matter for her Honour, concedes that the level of accumulation between counts 1 and 2 was excessive, and that error is disclosed. That is not a concession that was properly made, in my opinion.

74. Although substantially, or even completely, concurrent sentences will frequently be imposed for two offences where one relates to the proceeds derived from the commission of the other, that proposition is not axiomatic. In every case, determining the level of accumulation in the structure of sentence is a matter within the discretion of the sentencing judge, applying a principled approach.

75. Those principles are well established. In Cahyadi v R [2007] NSWCCA 1 at [27]; (2007) 168 A Crim R 41, Howie J (with the concurrence of Adams J – on this point – and Price J) said:

“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both [footnotes omitted].”

76. Whilst there was clearly some commonality in the criminality of the two offences, the sentence imposed for one offence did not fully comprehend the criminality of the other, and some level of accumulation was required.

77. The gravamen of count 1 was in the dissemination of material drawn from or relating to the Family Court litigation which identified those involved. No element of that offence concerns the desire for or receipt of financial gain. Although the applicant was motivated to publish the information by such a desire, leading to some overlap between counts 1 and 2, the receipt by him of monies he believed to be the proceeds of crime demonstrated criminality which was not comprehended by the sentence to be imposed for count 1.

78. The gravamen of a money laundering offence in the nature of the Code offence was considered in R v Ly [2014] NSWCCA 78, at [86]. One of the features relevant to an assessment of the gravity of a s 400.6 Code offence is the offender’s understanding as to the source of the funds, or intention for its use. Although the facts presented to the sentencing court, and accepted by her Honour as the facts of the offence, do not give any information as to the means by which the funds the applicant dealt with were obtained, other than that they were the proceeds of crime, the facts are clear as to the applicant’s state of mind concerning that aspect of the matter: he believed the money to be the proceeds of crime. That belief satisfied the element of the offence established by s 400.6(1)(b)(i).

79. His criminality was further heightened because the applicant additionally intended to use, and did use, the funds to, in part, fund the continuation of his criminal activities. That evidence established the alternative liability provided by s 400.6(1)(b)(ii), that he intended the money to become an instrument of crime. Neither of those aspects of the offending could be comprehended by the sentence imposed for the Family Law Act offence.

76. Further, the applicant received the proceeds of crime from two separate sources, over an extended period. His criminality in that regard was sustained and ongoing and separate to that reflected by the penalty imposed for count 1.

77. The applicant used the monies in part to sustain himself during the period of the commission not just of count 1, but also of the s 16BA schedule offence, which was itself a most serious example of a crime of that nature. That aspect of the criminality of the Code offence could not be comprehended by the sentence imposed for count 1.

78. The proceeds of crime offence being entirely different in character to the Family Law Act offence, there was also a separate requirement for the penalty imposed for that offence to import a significant level of general deterrence – notwithstanding the applicant’s disabilities, which are discussed below. The sentence imposed for count 1 could not achieve that purpose.

79. Finally, it was both necessary and important that the total sentence to be imposed upon the applicant should be capable of reflecting the total criminality of the two offences. It was open to her Honour to conclude that less accumulation would lead to a total sentence that could not achieve that end.

80. The Crown argued that the sentencing judge must have approached the question of the extent of accumulation by reasoning that, because the court was constrained in imposing an appropriate sentence against count 1, the inadequacy could be made good by increasing the level of accumulation beyond that which was required in the circumstances of the case. That argument should be firmly rejected. There is nothing in the evidence before this Court that could support a conclusion which, in effect, is a conclusion that the sentencing judge subverted a principled approach to sentencing. On the contrary, it was her Honour who, at each step of the sentencing process identified the principles that properly applied to it, with limited or no assistance from the parties. She was clearly very aware of what was required of the court.

81. This ground is not made out.

Ground 3

86. By ground 3 the applicant contends that the sentencing judge, having found that there was a causal link between the applicant’s mental condition and his crime, was in error in failing to mitigate the sentence imposed for count 1 to take into account his reduced moral culpability.

87. Although the Crown did not specifically address ground 3, it having been added by the applicant at the hearing of the matter, the concession the Crown made with respect to ground 1 is a sufficient indication of its position, assumed to be a further concession of error.

88. As the parties were warned during argument before the Court, the Crown’s concession does not bind this Court and, again, in my view it was not one that was properly made.

89. The positions of both the applicant and the Crown appear to rest on an assumption that, if an offender has a mental illness or disability, and there is a causal connection between that condition and the commission of the offence or offences, the sentence imposed upon the person must be reduced.

90. That is not the law.

91. The law continues to be as it was summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; (2010) 205 A Crim R 1. At [177] his Honour said:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [sic] [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris [sic] at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].”

92. The use of the word “may” in each of the five statements of principle set out is important. Although each illuminates a possible consequence that may follow from a conclusion that an offender is mentally ill, none of those consequences follow automatically. As was explained by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114, at [34]:

“It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

93. The facts and circumstances of count 1 were correctly assessed by the sentencing judge as placing the offence at the very top of any notional range of objective gravity. Whilst her Honour accepted that the applicant suffered from mental health issues, and that there was a “causal connection between the offending and the mental health issues in circumstances where Dr Conroy was of the opinion that such conditions are likely to result in difficulties with decision making”, she did not take that finding further. Nor did she find that the applicant was an inappropriate vehicle for general deterrence; that a custodial sentence would weigh more heavily on him because of his mental condition; that there was a reduced need for specific deterrence; or that he was a future danger to the community.

94. Specifically, the sentencing judge did not conclude that the need to denounce the offence was reduced because of his reduced moral culpability, and sentence would be mitigated to reflect that finding. To the contrary, the sentencing judge concluded that the criminality inherent in count 1 was:

“so grave having regard to the objective facts as outlined and after taking into account the schedule 16BA matter and also taking into account the plea of guilty that the appropriate penalty is the maximum term of imprisonment of one year”.

95. That was an approach which was, in my view, open to her Honour in the unusual circumstances of this matter.

96. The only evidence before the sentencing court concerning the applicant’s disabilities was the report of Dr Conroy. Whilst Dr Conroy found that the applicant had a Borderline Intellectual Disability, those limitations do not appear to have had any effect upon his conduct with respect to the offences brought against him. The applicant was plainly able to establish a company, WikiDetectives; open and operate a bank account for the company that was used to receive payments for his crimes; and set up internet sites to facilitate the “work” of the company. There is nothing in the content of the material he published on-line that would point to his borderline disability as in any way either impeding or contributing to his deliberate use of the internet for serious criminal purposes.

97. The applicant’s Schizoaffective Disorder and his grandiosity had an impact upon his conduct, and probably had the greatest impact on his decision making ability. However, his apparent belief that, in committing these crimes, he was playing a role as a “Wiki” operative consistent with the example set by WikiLeaks, must be balanced against the objective gravity of the offence - including as it does his financial motivation - and set in the context of all of the other subjective features established by the evidence.

98. There was no evidence before the sentencing court to support the submission of his counsel to this Court that the applicant was “a mentally ill man who was taken advantage of by others with far more nefarious ends than what he had”.

99. The applicant was a mentally ill man, and his illness contributed to poor decision making. It was open on that basis for the sentencing judge to hold that his moral culpability was reduced. That did not dictate or require a consequential reduction in the need for the imposition of a significant sentence in the overall circumstances of this offence, not least to denounce the crime.

100. Although I would grant leave to advance this ground, it should be dismissed.

Should the Court proceed to Re-Sentence?

101. Where specific error has been found it becomes the duty of this Court to re-sentence an appellant unless, having separately and independently exercised the sentencing discretion, the Court is not of the opinion that “some other sentence […] less severe is warranted in law and should have been passed”: s 6(3) Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA; (2014) 238 A Crim R 134, at [35]. In those circumstances the appeal should be dismissed.

102. Of course, the power of an appellate court is constrained by the principle that:

Exceptional cases apart, the Court of Criminal Appeal’s determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge’s unchallenged factual findings, and any relevant evidence of the offender’s post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, at [9].

103. The applicant does not dispute any of her Honour’s factual findings, and there is no issue taken with the discrete sentence imposed for count 2.

Evidence of Post-offending Conduct

104. The evidence of the applicant’s post-sentence conduct is to be found in the affidavit of Dawoud Ayache, affirmed on 18 November 2020, and in the affidavit of the applicant, affirmed on 17 November 2020.

105. Mr Ayache deposes that, having inspected certificates issued to the applicant, he is aware that the applicant has completed a Vocational Pathways course, and a course in Information and Digital Technology, since entering custody. By producing a volume of records extracted from the applicant’s NSW Corrective Services (“NSWCS”) file, Mr Ayache informed the Court that the applicant has received an institutional penalty from NSWCS for “smoking or using tobacco” in April 2020; and been assessed as unsuitable for placement at St Heliers Correctional Centre because of his medical condition. He is being treated by Justice Health for his Schizoaffective Disorder (“under good control”), and for two physiological conditions, Intermittent Atrial Fibrillation and a back problem (following a previous football injury). The first is being investigated and, as at November 2020, a referral for a specialist cardiologist assessment had been made. The second requires surgery, and the applicant is on a waiting list for lumbar surgery to be performed at Royal North Shore Hospital. He is medicated for all conditions.

106. The applicant deposes that he has been moved between institutional facilities since entering custody and, as at November 2020, was held at a correctional centre near Windsor. Although he was held at St Heliers for a time, he was transferred to a facility with better nursing and medical services. He has been employed but is not now working due to his back injury. The applicant has completed some vocational courses, although he was not allowed to fully complete a computer skills course because of his existing skills in that regard. The availability of courses is limited because of COVID-19.

107. The applicant did not receive medication for his heart condition immediately on entering custody and suffered for it. He is now properly medicated and has seen a cardiologist at a public hospital. He is on a waiting list for lumbar surgery. He suffers from depression and anxiety and receives medication for those conditions. He has had access to a psychologist for therapy and is to see a grievance counsellor to assist him in coping with the death of his father some years ago.

108. On release, the applicant has employment in the construction industry waiting for him. He will reside with family and wishes to reconnect with his children. He has support from his mother, sister, and youngest daughter.

The Re-sentencing Exercise

109. Any re-sentencing exercise in this matter also faces the considerable problems identified and discussed above because of the way the Crown case was put before the District Court. An appropriate approach to this matter at first instance would be to have declined any discount on sentence with respect to count 1, because the gravity of the offence did not permit any reduction if the sentence imposed was to be of a severity appropriate in all of the circumstances. Further, the court could have declined to take the s 16BA schedule offence into account. Finally, and although her Honour was not given this assistance by the parties, it was open to the sentencing court to have imposed an aggregate sentence: DPP v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301. That approach would have been preferable.

110. Within the constraints under which this Court operates whilst exercising the sentencing discretion “afresh”, and having had regard to the objective and subjective features of this matter, I am not of the opinion that a lesser sentence is warranted.

111. The Family Law Act offence was gravely serious, as was the offence on the schedule, and the Code offence. Only a custodial sentence was appropriate, and the sentences needed to be of some severity, appropriate to the circumstances, objective and subjective.

112. The applicant’s mental illness is one feature to be taken into account but, in the circumstances of this case it cannot have any great ameliorating impact on sentence. The extended period of offending, the number of discrete incidents comprehended by the charged offences, and the harm done, not least to the maintenance of public confidence in the Family Court, was significant. There is a very real requirement for the sentence to adequately reflect the strong need for specific and general deterrence.

113. There is no evidence to suggest that the applicant’s current circumstances in custody are such as to require leniency, noting that he is being properly treated for his medical conditions, with appropriate access to specialist treatment at major Sydney teaching hospitals.

Conclusion

114. Taking all these matters into account, although I would grant leave to the applicant to appeal against sentence, I would dismiss the appeal.

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Endnote

Decision last updated: 19 February 2021