McKinley v R [2022] NSWCCA 14

McKinley v R [2022] NSWCCA 14 · Read the judgment on AustLII

Catchwords: Sentencing – ‘Ellis’ discount – arithmetic approaches to sentencing

In this decision the Court of Criminal Appeal (‘CCA’) upheld the appeal on the basis that the ‘Ellis’ discount given to the offender for disclosing previously-unknown offending was insufficient. The decision seems to update, to some extent, previous authority which had purported to set arithmetical upper limits within which this kind of discount could fall.

The applicant pleaded guilty to five property offences: armed robbery, two break and enter offences, a larceny, and taking and driving a car. There were also two offences taken into account on a Form 1. The offending all came to light after he had been arrested for other, unrelated offending; the applicant told police he wanted to disclose his earlier misconduct. He also disclosed some other information surrounding the offences. In accordance with the decision of R v Ellis (1986) 6 NSWLR 603 (‘Ellis’) at sentence he sought a discount for the voluntary disclosure of unknown criminal offending. Having pleaded guilty in the Local Court (for which he was entitled to a discount of 25%), he received a combined discount of variously between 35 and 40% - that is, an additional ‘Ellis discount’ of between 10 and 15% for each of the offences. He appealed on grounds essentially alleging that the Ellis discount allowed by the sentencing judge was insufficient.

Rothman J (with whom Macfarlan JA and Dhanji J agreed) observed that in each of the instances to which he pleaded guilty, whilst the police had started an investigation, they were unaware of the identity of the offenders. As a consequence, as held in Ellis, the applicant was entitled to a significant added element of leniency for his voluntary disclosure of involvement in serious crimes of which the police had no knowledge (at [36]-[37]).

In the past, when a more arithmetic and prescriptive approach was taken to the sentencing discretion, it had been said that specified percentages should be allowed for the plea and assistance. It was said that the combined discount – that is, the total discount for the plea and the assistance – should not, in ordinary circumstances, exceed 40%, and that it would be a rare case where a discount of more than 60% would not result in a manifestly inadequate sentence (at [48]). However, that approach probably does not withstand later authority criticising an arithmetic approach to sentencing (at [49]). That does not suggest that too great a discount for assistance, regardless of what kind of assistance, should be given such that the sentence is unreasonably disproportionate to the nature and circumstances of the offence and the offender. The size of the discount depends on the mandatory considerations prescribed by s 23(2) of the Crimes (Sentencing Procedure) Act (at [50]). Ultimately, the test that must be utilised depends on the fulfillment of the purpose of the administration of justice. The reduction needs to be sufficiently significant that it will encourage people who have committed crimes to confess, notwithstanding that the police don’t know the identity of the offenders (at [56]). In this case, insufficient discount had been provided in the particular circumstances of the assistance provided; it was of high value and came at a time when the police were unaware of the involvement of the applicant (at [62]). For those reasons, the appeal was allowed. On resentence, the Court imposed a combined discount of 55% for each of the offences (at [63]), ultimately arriving at an aggregate sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months.