R v SS [2021] NSWCCA 56

R v SS [2021] NSWCCA 56 · Read the judgment on AustLII

Catchwords: Assistance to authorities – two-for-one summary

In this (pair of) decision(s), the Court of Criminal Appeal has held that the so-called Ellis-discount has to an extent been overtaken by legislation – although case law does establish generally-accepted categories of assistance. Merely pleading guilty and confessing to the offence is unlikely to be enough. Where a discount for assistance is to be applied, careful attention must be paid to the specific criteria set out in the legislation.

To an extent the decision of SS offers a two-for-one. After argument in SS was heard and judgment reserved, the Court of Criminal Appeal (differently-constituted) heard Ahmad, on a similar topic. The judgment in Ahmad was delivered while SS was still pending, but because SS came out second and serves to immediately distil some of the most important bits of Ahmad, this summary will mainly focus on SS.

The respondent (this is a Crown appeal) shook his four-week-old baby ‘like a ragdoll’ because she would not stop crying. The baby was left with permanent brain damage. The respondent pleaded guilty to an offence of recklessly causing grievous bodily harm. He was sentenced in the District Court to a sentence of 1 year and 9 months, with a non-parole period of 12 months. In coming to that sentence, the sentencing judge had allowed a discount of 25% for the plea of guilty, and an additional 25% for admissions made by the respondent: He initially denied any knowledge of how the baby was injured, but a couple of days later he was re-interviewed and admitted what he had done. The Crown appealed against the asserted inadequacy of the sentence, on grounds including that the additional 25% discount allowed by the sentencing judge for assistance to authorities was an error.

The Court (R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed) set out a representative history of cases involving the topic of discounts. That summary commenced with an analysis of the so-called ‘Ellis discount’, named after the decision of R v Ellis (1986) 6 NSWLR 603. After setting out the line of authority which followed Ellis, the Court drew attention to previous authority establishing the three kinds of assistance which had been held to fall within the Ellis discount: revelation of an offence not known to the authorities; revelation of the identity of the offender; or revelation of an aspect of the offending not known to the authorities (at [55]). Here, the Court adopted what the CCA (differently-constituted) had said in Ahmad: the principles in Ellis are now embodied in s 23 of the Crimes (Sentencing Procedure) Act (at [59] of this decision). That section makes clear that there are mandatory considerations when a court considers imposing a lesser penalty, and if so to what extent (at [61]). Also in Ahmad, the Court had restated that the leniency referred to in Ellis is not confined to the disclosure of the fact of an offence, or an offender’s involvement in it. Voluntary disclosure of information not available to the Crown might constitute assistance for the purpose of s 23, even if the Crown already knows about the offence, and even if the offender has already been charged (at [62] of this decision). However, (and importantly) Ahmad 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. In a sense, every guilty plea provides assistance to the Crown. But that is not sufficient to engage s 23 – prior authority provides that a full confession and co-operation with investigating authorities from the start does not entitle an offender to a discount over and above the discount for a plea of guilty. In order to get a discount over and above the utilitarian discount, s 23 will apply and it will be necessary to establish precisely what information or assistance that offender has provided, it’s truthfulness, completeness, reliability, timeliness, and the various other factors to which the Court must have regard in s 23(2) (at [63] of this decision, quoting Ahmad).

In this case, the respondent did not voluntarily disclose ‘otherwise unknown guilt’ because his guilt was discoverable and could be established by the available circumstantial evidence independent of his admissions. His admissions did not disclose additional criminality of which the police would not otherwise have been aware. It followed that it did not fall within the categories accepted as falling within Ellis (at [83]). Even if it had been within the terms of Ellis, the sentencing judge erred by failing to make reference to the criteria in s 23(2) (at [85]). For a variety of reasons, the Court held here that the s 23(2) factors did not provide any significant support for a reduction of sentence; it followed that it was an error to provide a discount on that basis (at [87]-[88]).

Ultimately, the Court in SS found that the sentence was inadequate and increased it to a sentence of 4 years and 6 months, with a non-parole period of 3 years.