SE v The Queen

[2022] NTCCA 9

CITATION:SE v The Queen [2022] NTCCA 9

PARTIES:  SE

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 19 of 2020 (21835889)

CA 8 of 2021 (21835889)

DELIVERED ON:  17 May 2022

HEARING DATE:  1 December 2021

JUDGMENT OF:  Grant CJ, Blokland and Barr JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Manifest excess – Reduction in sentence for assistance to authorities

Whether sentence manifestly excessive because inadequate discount for guilty plea and assistance to authorities – Plea indicated late in time – Plea not reflective of genuine remorse or unqualified acceptance of responsibility –Reduction of 30% resolved to three years on the head sentence – No miscarriage of the discretion to extend leniency in the circumstances of the case – Appeal dismissed.

Sentencing Act 1995 (NT) s 5(2)(h)

Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316, JKL v The Queen [2011] NTCCA 7, Kelly v R (2000) 10 NTLR 39, Nona v The Queen (2012) 31 NTLR 84, R v Cartwright (1989) 17 NSWLR 243, R v Wilson [2011] NTCCA 9, Ryan v The Queen (2001) 206 CLR 267, referred to.

REPRESENTATION:

Counsel:

Appellant:N Redmond

Respondent:  D Dalrymple

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  14

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

SE v The Queen [2022] NTCCA 9

No. CA 19 of 2020 (21835889)
No.  CA 8 of 2021 (21835889)

BETWEEN:

SE

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BLOKLAND & BARR JJ

REASONS FOR DECISION

(Delivered 17 May 2022)

THE COURT:

1. The appellant advances a single ground of appeal, namely that the sentence is manifestly excessive for the reason that the learned sentencing judge provided an inadequate discount for the appellant’s guilty plea and assistance to authorities.[1]  

2. Although there is a technical issue as to whether the appeal properly lies against the original sentence or the sentence as subsequently amended pursuant to s 112 of the Sentencing Act (described further below), the appellant’s contention is that it makes no difference provided that the appeal is heard and determined on the merits.[2]  The respondent concurs in that approach.

   Background and procedural history

3. On 11 March 2020, the appellant entered a plea of guilty to the offence, charged as count 3 in the indictment,[3] that between 1 January 2011 and 31 December 2011 at Alice Springs, she had sexual intercourse, namely fellatio, with the victim without her consent and knowing about or being reckless as to the lack of consent.  The victim is the appellant’s daughter.  The offence carries a maximum penalty of life imprisonment. 

4. By her plea of guilty, the appellant admitted accessorial liability in aiding and/or enabling her then partner to commit the offence against the victim, who was then seven or eight years old.  The Crown facts which were admitted by the appellant are set out in the Appeal Book, and it is unnecessary to repeat them for these purposes.[4] 

5. In the course of sentencing the appellant on 16 March 2020, the sentencing judge referred to the facts and made the following remarks:

   There are a number of factors of the offending which make it serious. The victim was only a young child, only seven or eight years old. She was in a vulnerable position. You initiated and directed the offence. You persisted despite [the victim’s] refusals.

   There was a degree of force used: the two of you pressing the child’s head towards [the co-offender's] erect penis to force it into her mouth. The crime was committed in company, adding a degree of depravity. You did not voluntarily stop. The offending only stopped when the child managed to break free. The victim had no safe place to go afterwards. She had to return to the scene of her abuse to go to sleep.

   Crimes of this nature against children are abhorrent. They inspire disgust and loathing. I place great weight on punishment, denunciation and general and personal deterrence. That means that I have to pass a sentence that sends a strong message that the community disapproves of such dreadful crimes. A sentence that tells people that if they commit such crimes against children, they will go to prison for a very long time.

   You have pleaded guilty and you are entitled to some reduction in your sentence for your willingness to facilitate the course of justice. However, it was a late plea and I see no sign at all that you are at all remorseful. In fact, the transcripts of the calls you made from prison to your partner strongly demonstrate otherwise.[5]

6. Her Honour was there referring to a transcript of telephone calls made by the appellant from prison to an associate in the period between 5 and 8 March 2019.[6]  Amongst other things said in relation to the victim, the appellant said, ‘She’s a dog, she’s a mutt … wait till I get my hands on the cunt, I’m gonna fuckin destroy her’.  She also said, ‘Once I get out of here I’m gonna fuckin put charges on her hey… You wait and see what I do… If I can wait I’ll make that cunt’s life a living hell… My name is Satan, I will fucking destroy her’.  In the last recorded conversation the appellant said, ‘She’s a fuckin’ piece of shit.  I wish I never fuckin’ had the cunt, I wish I never had her ay, I should have fucking aborted when I had the chance.’

7. The sentencing remarks continued:

   Because of your emotional outburst after [the victim] read out her victim impact statement in court, your lawyer submitted that that showed you had some feeling at least for [the victim’s] current situation. I reject that submission. Given the whole of the circumstances, I am satisfied that your outburst indicated nothing more than a concern for your own situation, including the humiliation of having [the victim] express the view in open court that you belong behind bars.

   On the other hand, a plea in cases such as this is of greater value than many other pleas, because it saves the victim the added trauma of having to relive the experience in giving evidence and undergoing cross examination. Further, the Crown has advised that your undertaking to give evidence against your co-offender [redacted] is of exceptional value.

   Accordingly, despite your late plea and despite your lack of remorse, I intend reducing your sentence by around 30%.[7]

8. The sentencing judge’s starting point was a term of imprisonment of 10 years, which was within the range of appropriate sentences for the offending.  Giving effect to the indicated reduction, the sentencing judge convicted the appellant and sentenced her to a term of imprisonment of seven years, with the statutory minimum non-parole period of four years and 11 months.[8]

9. The sentencing judge made the sentence concurrent as to one year and cumulative as to two years on a sentence which had previously been imposed by the Supreme Court for the appellant’s attempt in March 2019 to pervert the course of justice.[9]  The total head sentence across both offences was therefore nine years, however the sentencing judge did not increase the non-parole period of 4 years and 11 months.  That disposition was available because it satisfied both the specific statutory minimum of 70% for that part of the sentence imposed for the offence of sexual intercourse without consent, and the general statutory minimum of 50% for the total sentence.[10]

10. The sentencing judge had initially proceeded on the mistaken understanding that the sentence imposed for the attempt to pervert the course of justice had been partially suspended.[11] However, a non-parole period had been fixed, which meant that the sentencing judge subsequently dealing with the charge of sexual intercourse without consent was required pursuant to s 57 of the Sentencing Act to fix a single non-parole period in respect of both sentences.  The situation was rectified on 21 April 2021, when the proceedings were reopened and the sentencing judge imposed a sentence of imprisonment of seven years, commencing on 22 February 2021, and formally fixed a single non-parole period across both sentences of 4 years and 11 months commencing on 22 February 2019.[12]

    Guilty plea and assistance to authorities

11. The appellant was entitled to receive credit for pleading guilty and for the contrition (if any) which that plea of guilty reflected.  That entitlement was qualified and moderated by a number of matters, because the weight given to a plea will vary according to the circumstances.  An early plea accompanied by genuine remorse with identifiable utilitarian benefits will be rewarded with a greater discount than a late plea or one which is not accompanied by remorse.  A guilty plea which is also accompanied by assistance to law enforcement and prosecution authorities will attract a further discount over and above the discount afforded for utilitarian value and remorse.

12. In JKL v The Queen,[13] this Court observed that the value to be placed on a guilty plea will depend upon the circumstances of the particular case and the extent to which it demonstrates remorse; the degree of acceptance of responsibility and resipiscence; the willingness to facilitate the course of justice; the extent to which a witness who may find the procedure painful has been spared the necessity to give evidence; and the utilitarian benefits that flow from the plea.  The Court said that the value to be attributed to a plea remained discretionary, however ‘a reduction of 25% will normally be given in circumstances where there has been an early guilty plea which is indicative of true remorse and resipiscence’.

13. The plea in this case was entered 11 months after the appellant had been committed to the Supreme Court for trial, some months after the appellant’s matter had been listed for trial, and in the week prior to the trial of the appellant’s co-offender. The sentencing judge was required by s 5(2)(j) of the Sentencing Act to have regard to the lateness of the plea, and that timing would ordinarily have reduced the discount on sentence allowed by the court because it reduced the utilitarian value of the plea.

14. Despite that, the prosecutor described the plea as ‘incredibly valuable’ even if it had come at ‘somewhat of a late stage’.[14]  That concession by the prosecutor reflected the difficulties inherent in prosecuting historical child sex offences; the trauma which the court process is apt to cause victims of sexual offences who are required to give evidence; and the fact that the appellant’s undertaking to give evidence against her co-accused, as the sole corroborating witness, was ‘of exceptional value’ in the pending prosecution of that matter.[15]  As for remorse, the sentencing judge made very clear adverse findings in that respect which have been extracted above.  Those findings are unimpeachable having regard to the content of the telephone conversations.

15. In summary, the plea was late and there was no remorse.  Rather, the evidence demonstrated the appellant’s disdain and contempt for the victim, and disclosed the appellant’s desire for revenge against the victim for making the complaint.  There was only a limited acceptance of responsibility by the appellant, which was also demonstrated by the fact that the appellant raised duress in her statement of evidence proposed to be given in the co-accused’s trial.  The appellant there asserted that her co-offender had made threats towards her and her daughter to compel the appellant to engage in the charged conduct.[16] 

16. That assertion was not consistent with the agreed facts on which the appellant was sentenced, and sought to diminish the appellant’s accessorial liability in aiding and enabling the sexual assault of the victim.[17]  Having regard to those matters, the reduction in sentence attributable to the plea of guilty itself, leaving aside the question of assistance to authorities, would be expected to be significantly and substantially less than the 25% normally given for an early guilty plea which is indicative of genuine remorse.

17. Given the clear absence of genuine remorse, the appellant’s assistance to the authorities in relation to the prosecution of the co-offender was based on self-interest.  However, ‘contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities’.[18]  Allowance should be made whatever the offender’s motive might be in giving assistance.[19]  The prosecutor submitted that ‘a full informant’s discount’ should be given.[20]  There is no such standard, as there is a broad judicial discretion to determine the reduction allowed for assistance to authorities.  The exercise of that discretion will depend on matters such as the extent to which the assistance has combatted criminal activity, whether the assistance has led to the apprehension and prosecution of other offenders, the value of that assistance in the prosecution of other offenders, the nature of the offences involved, and whether by reason of that assistance there is a risk of retribution to the offender and/or to their family and the hardship of serving their prison sentence in protective custody.

18. The reduction of 30% given on sentence was a composite allowance reflecting various disparate factors. The sentencing judge did not state an apportionment between the discount given for the guilty plea and that given for assistance to the authorities in relation to the prosecution of the co-offender. The appellant does not assert error in relation to the fact that the discount provided for her assistance to authorities was not separately specified,[21] and it is therefore unnecessary to consider the authorities for and against the desirability of a sentencing judge identifying a separate discount for the guilty plea and a separate discount for assistance to authorities.[22]  However, it may be noted that one advantage of a composite discount is that it avoids the risk of overlap and spares the sentencing judge the sometimes impracticable task of attempting to disentangle the various elements to be allowed for with respect to each reduction.[23]

19. Given the approach taken by the sentencing judge, it would be wrong in principle for this Court to formulate a hypothetical discount for the plea of guilty and a hypothetical discount for the assistance to authorities, and to then attempt to synthesise a single discount for the purposes of comparison with that applied by the sentencing judge.  The appropriate approach is to ask whether, taking into account all of the relevant considerations, including the nature of the assistance provided to authorities, the sentence is manifestly excessive.  That is because where the amount of the reduction allowed is not identifiable as a specific error so as to reopen the sentencing discretion, the ground of appeal can only be that the sentence is manifestly excessive.[24] 

20. A particular point made by counsel for the appellant is that the co-offender was convicted at trial of the one offence on which the appellant gave corroborative evidence, but found not guilty of the other two charges.  The submission based on that outcome is that the value of the appellant’s evidence at trial was very high, and that the reduction in sentence attributable to that assistance should be correspondingly high.  It would appear that the sentencing judge was not informed about the outcome of the co-offender’s trial when the sentencing proceedings were reopened on 21 April 2021. 

21. Two observations may be made in relation to the submission.  First, it is a speculative conclusion that the co-offender’s conviction on one charge and his acquittal on the other two was referable to the appellant’s evidence.  The jury’s verdicts are inscrutable, and different factors may have been causative in the result.  Secondly, although the jury’s verdicts had not been returned prior to the time at which the appellant was sentenced and the 30% reduction applied on 16 March 2020, the sentencing judge proceeded on the basis that the appellant’s undertaking to give evidence against the co-offender was ‘of exceptional value’.[25]

22. Leniency on account of assistance provided to law enforcement authorities might be allowed by reduction of the head sentence or non-parole period, the fixing of a non-parole period where one might not otherwise have been thought appropriate given the circumstances of both the offences and the offender, or by permitting a greater degree of concurrency than might otherwise have been the case.[26] 

23. Of relevance in that respect, the sentencing judge allowed concurrency of one year with the sentence imposed for the offence of attempting to pervert the course of justice, even though the sentencing judge was of the clearly expressed view[27] that there should be total accumulation of the sentence for the attempt to pervert the course of justice and the sentence for the sexual intercourse without consent (which was the offence the subject of that attempt).  That was said to be because, if sentences are not accumulated in those circumstances, an offender will have partially succeeded in the attempt to pervert the course of justice.  

24. Further, the sentencing judge fixed a non-parole period across both sentences of four years and 11 months, which was the minimum non-parole period applicable to the offence of sexual intercourse without consent.  As has already been seen, the sentencing judge did not extend that minimum non-parole period in fixing the single non-parole period across that offence and the attempt to pervert the course of justice.  

25. Turning then to the composite 30% discount which was allowed, as has already been observed, the plea was indicated late in time, the plea was not reflective of genuine remorse or an unqualified acceptance of responsibility, and this was not the type of assistance to authorities which exposed the appellant or her family to retribution and physical harm.  The first two of those factors warranted an allowance of something significantly less than the reduction ordinarily allowed where a guilty plea is indicated at the earliest opportunity and the offender has demonstrated genuine remorse.  The last of those factors put this sentencing exercise in a different category to those cases in which ordinarily the largest reductions are allowed for assistance to authorities. 

26. Without seeking to be prescriptive about the matter, what is commonly referred to as ‘the Ellis discount’ is often in the order of 30% to 40% in combination with the discount for a timely guilty plea attended by remorse.  In the most extraordinary of circumstances the reduction may be as high as 50% when also attended by a timely guilty plea and remorse.  The reduction to be allowed for a guilty plea with the features presenting in this case was a matter which fell to the discretion of the sentencing judge, as was the leniency extended for the assistance given to authorities.  The reduction of 30% – which resolved to a discount of three years on the head sentence – does not suggest a miscarriage of the discretion to extend leniency in the circumstances of this case. 

27. The appellant has not established manifest excess.

    Disposition

28. The appeal is dismissed.

_________________________

[1]Section 5(2)(h) of the Sentencing Act 1995 (NT) requires that in sentencing an offender a court must have regard to 'how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences'.

[2]Affidavit of Noah Redmond affirmed 28 June 2021, paras [10]-[12], Appeal Book ('AB') 147.

[3]      The relevant indictment was dated 26 February 2020, referred to at AB 11.4. That is not the same indictment as that reproduced at AB 1-2.

[4]      AB 46-47.

[5]Transcript, 16 March 2020, AB 32-33.

[6]Exhibit P4, AB 62-63.

[7]Transcript, 16 March 2020, AB 33.

[8]AB 34.  The Sentencing Act, s 55(1) prescribes a mandatory minimum non-parole period of 70% for the offence of sexual intercourse without consent.

[9]During the course of telephone conversations from the prison, the appellant had prevailed on an associate to attempt to bribe the victim to withdraw her complaint. 

[10]See The Queen v Cumberland [2019] NTCCA 13.

[11]    The prosecutor had misinformed the court in this respect: see AB 34.2.

[12]    AB 102-103. The commencement date of the sentence which had been imposed for the offence of attempting to pervert the course of justice was erroneously fixed at 26 February 2019 in circumstances where the appellant had actually been taken into custody on 22 February 2019.  That was also rectified during the course of the resentencing process which was undertaken on 21 April 2021: see AB 84. 

[13]    JKL v The Queen [2011] NTCCA 7, [28]. See also Kelly v R (2000) 10 NTLR 39, [27]; R v Wilson [2011] NTCCA 9, [39]-[40].

[14]    AB 13.

[15]    AB 16.

[16]AB 3.5.

[17]The Crown did not accept the assertion for the purpose of the appellant's sentencing proceedings, and the appellant was not prepared to give evidence of duress in a contested facts hearing for that purpose: AB 6.8, 10.9.

[18]    See R v Cartwright (1989) 17 NSWLR 243, 252 per Hunt CJ at CL and Badgery-Parker J.

[19]    Director of Public Prosecutions (Cth) v AB [2006] SASC 84; (2006) 94 SASR 316, [35] per Perry J, Nyland and Layton JJ agreeing at [116] and [118] respectively.

[20]AB 16.9.

[21]    A failure to identify the reduction or credit for disclosure will generally not provide a ground for appeal: see Nona v The Queen (2012) 31 NTLR 84, [36], citing Ryan v The Queen (2001) 206 CLR 267, [185] per Callinan J.

[22]    See, for example, the review of the authorities by this Court of the related Ellis principle in Nona v The Queen (2012) 31 NTLR 84 at [34]-[37].

[23]    Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316, at [66], [68] per Perry J, Nyland and Layton JJ agreeing at [116] and [118] respectively. See also Nona v The Queen (2012) 31 NTLR 84, [33]-[35], citing Raad v R [2011] NSWCCA 138, [51]; S v The Queen [2008] NSWCCA 186; (2008) 186 A Crim R 505, [10]; R v Gallagher (1991) 23 NSWLR 220, 227-228; Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40, [19]; Ryan v The Queen (2001) 206 CLR 267, 272-273.

[24]This was the approach taken in Nona v The Queen (2012) 31 NTLR 84, [44]-[45]. See also A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters 3rd ed, 2014), [6.80], citing Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, [44]; Scerri v The Queen [2010] VSCA 287, [30]; cf R v Pang [1999] NSWCCA 4, (16]; R v Gladkowski [2000] QCA 352, [10]; R v M [2005] NSWCCA 224, [28]; Kauwenberghs v The Queen [2008] NSWCCA 98, [102].

[25]AB 33.6.

[26]    Nona v The Queen (2012) 31 NTLR 84, [32].

[27]    AB 25.9, 34.