Nona v The Queen [2012] NTCCA 3

PARTIES:	NONA, Justin Andrew William

	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 9 of 2011 (21021839) & (21107339)

DELIVERED:	28 FEBRUARY 2012

HEARING DATES:	30 JANUARY 2012

JUDGMENT OF:	KELLY, BARR JJ & OLSSON AJ

APPEAL FROM:	RILEY CJ

CATCHWORDS:

CRIMINAL LAW – Sentencing – Appeal against sentence – Additional leniency for voluntary disclosure of guilt – The Ellis principle – Quantified discounts by application of the Ellis principle – Factors to be taken into account – Overlapping sentencing considerations – Weight given to the guilty plea – Utilitarian value of voluntary disclosure of guilt –Appeal dismissed

Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
Sentencing Act (NT) s 5(2)(h)

R v Ellis (1986) 6 NSWLR 603; Raad v R [2011] NSWCCA 138; Lewins v The Queen [2007] NSWCCA 189 (2007) 175 A Crim R 401; Irwin v The Queen [2008] NSWCCA 7 (2008) 181 A Crim R 123; S v The Queen [2008] NSWCCA 186; (2008) 186 A Crim R 505; R v GLB [2003] NSWCCA 210, applied.

R v Tait and Bartley (1979) 46 FLR 386; Ryan v The Queen (2001) 206 CLR 267; JKL v The Queen [2011] NTCCA 7; The Queen v Wilson [2011] NTCCA 9, followed.

The Queen v Borkowski [2009] NSWCCA 102, considered.

REPRESENTATION:

Counsel:
	Appellant:	J Lawrence SC
	Respondent:	R Coates 

Solicitors:
	Appellant:	North Australian Aboriginal Justice Agency
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	A
Judgment ID Number:	KEL12001
Number of pages:	20

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

Nona v The Queen [2012] NTCCA 03
No. CA 9 of 2011 (21021839) & (21107339)

	BETWEEN:

	JUSTIN ANDREW WILLIAM NONA
	Appellant

	AND:

	THE QUEEN
	Respondent

CORAM:	KELLY, BARR JJ & OLSSON AJ

REASONS FOR JUDGMENT

(Delivered 28 February 2012)

The Court:
[1]	In May and June 2010, Justin Nona was only 23 years old, but he already had 84 prior criminal convictions, beginning when he was 12 years old.  They included 19 convictions for stealing, seven for aggravated unlawful entry, nine for criminal damage, 12 for unlawfully using or interfering with a motor vehicle, one for assault and one for aggravated assault.
[2]	He had been dealt with on three occasions for breaches of bonds, had four convictions for breaches of suspended sentence, and one breach of parole.  Every suspended sentence he had ever been given, he breached by re-offending.  
[3]	He had last been before the court on15 May 2009 after he and two co-offenders unlawfully used a Land Cruiser and then set fire to it.  On that occasion he was sentenced to 12 months imprisonment commencing on 22 April 2009 with a non-parole period of eight months.  He was not granted parole, served the whole 12 months and was released on 22 April 2010.   
[4]	Less than three weeks later, on 11 May 2010, he stole a bicycle from an accommodation unit at Charles Darwin University.
[5]	On the evening of Saturday 12 June 2010 Nona rode the stolen bicycle to a friend's place, drank alcohol and consumed cannabis.  At about 4.00 am the next morning, he rode the stolen bicycle to the Hibiscus Shopping Centre, where he smashed the window of the newsagency with a rock so he could steal cigarettes.  When he could not find any cigarettes, he left.
[6]	Next he rode to Dolly O'Reilly's Tavern.  He tried to gain entry to the tavern by smashing a window, but failed.  He then tried to burn the timber around the tavern door by setting fire to some bar stools so he could force the door open.  This too failed, causing only minor damage to the timber column, although, obviously, if the fire had developed it was likely to have spread throughout the whole building.  
[7]	Nona then went to the shopping centre car park where he saw two cars.  He smashed the windows of both cars looking for something to steal, then set fire to the cars, destroying both of them. 
[8]	As he left the shopping centre on the stolen bicycle, he fell off, damaging the bicycle so that it became unrideable.  He abandoned the bicycle and tried to break into another car but he was disturbed.  
[9]	Next, he noticed a five metre boat parked on a trailer in the driveway of a block of units and decided to set fire to that.  He climbed onto the boat and set fire to the canopy, and then ran away.  The owner of the boat put the fire out with an extinguisher, but in the course of getting on and off the boat, he sustained an injury to his leg.  
[10]	From there Nona went to a unit in Baroalba Street, Leanyer where he saw a car parked in a carport along with a number of plastic containers filled with various articles including clothing and magazines.  He stole some scissors intending to use them to break into a car at a later time.  He also helped himself to some barbeque-style matches which he used to set fire to one of the containers filled with magazines – and then left. 
[11]	The container of now burning magazines was left in front of the glass sliding doors to the unit.  The fire burned intensely and caused the glass panels to warp and then shatter, allowing the flames to enter the lounge area of the unit.  Curtains were set alight and the entire lounge area became engulfed in flames.  
[12]	Mrs Middis and her two children, Daniel aged 11, and 8 year old Nicholas were inside the unit asleep.  Mrs Middis and Daniel got out but Nicholas was trapped inside the burning house.  Both Daniel and Mrs Middis made desperate efforts to get to Nicholas to rescue him from the burning building, but they could not reach him and Nicholas died due to smoke inhalation as a result of the fire.  In her efforts to rescue her son, Mrs Middis sustained burns to 25% of her total body surface as well as an inhalation injury.  Her injuries were life-threatening and she was transferred to Royal Adelaide Hospital.  The unit and the contents were entirely destroyed along with the motor vehicle in the carport.  The total cost of the damage was over $360,000.
[13]	Meanwhile, Nona ran down the street, and stole another bicycle which he later gave to one of his friends, telling him he could keep it. 
[14]	On the way home, he smashed the window of another car, searched it for valuables, and then set the vehicle alight by burning papers he found inside the car.  The car was totally destroyed.  
[15]	On 29 July 2010, Nona was arrested in relation to the attempted arson at the tavern.  He admitted some of the offences he had committed that night but denied any involvement in the fire that caused the death of the child or the fires that caused damage to the vehicles and the boat.  
[16]	A committal hearing was scheduled for the matters on which admissions had been made but there were delays.  On 27 February 2011, before the committal hearing was finalised, Nona spoke with a prison officer and then with police about what had happened.  He made full admissions to all offences, and showed police the route he had followed and where he had committed the various offences.  
[17]	When police asked him why he had lit the fires, Nona said, “I was too drunk.  I was too stoned.  I was in that criminal mode.”  
[18]	In relation to the fire at the unit where the young boy died, he said he had seen lights on inside the unit and thought someone was at home and awake.
[19]	Nona pleaded guilty to 11 counts arising out of the above offences and received the following sentences:
(1)	count 1, stealing the first bike:  imprisonment for two weeks; 
(2)	count 2, unlawful entry of the newsagency:  imprisonment for five months;
(3)	count 3, attempted unlawful entry of the tavern:  imprisonment for three months; 
(4)	count 4, attempted unlawful setting fire to the tavern:  imprisonment for eight months; 
(5)	count 5, criminal damage to a Holden Rodeo:  imprisonment for 12 months;
(6)	count 6, criminal damage to a Toyota Hilux:  imprisonment for 12 months;
(7)	count 7, criminal damage to the boat:  imprisonment for eight months; 
(8)	count 8, unlawfully setting fire to the box at the Middis unit:  imprisonment for three years; 
(9)	count 9, causing serious harm to Mrs Middis:  imprisonment for four years; 
(10)	count 10, manslaughter of Nicholas Middis:  imprisonment for nine years; 
(11)	count 11, stealing of the second bicycle:  imprisonment for two weeks.
[20]	Nona was not charged with any offence as a result of setting fire to the final car, but asked that that be taken into account on sentencing.
[21]	The sentencing Judge ordered partial concurrency of the sentences bringing the total sentence to 15 years imprisonment with a non-parole period of ten years, made up as follows:
(1)	The sentences in relation to counts 1 and 11 were ordered to be served concurrently with each other and with the remaining sentences. 
(2)	In relation to counts 2, 3 and 4:
(i)	the sentence in relation to count 2 was ordered to be served cumulatively upon that of count 3, giving a combined sentence of eight months; and 
(ii)	the sentence in relation to count 4 was ordered to be served cumulatively upon that combined sentence to the extent of four months;  
making the combined sentence for counts 2, 3 and 4 imprisonment for 12 months.  
(3)	In relation to counts 5, 6 and 7: 
(i)	the sentence in relation to count 5 was ordered to be served cumulatively upon that for count 6 to the extent of six months, giving a combined sentence of 18 months; and
(ii)	the sentence in relation to count 7 was ordered to be served cumulatively upon that combined sentence as to six months;
making the combined sentence for counts 5, 6 and 7 imprisonment for two years.
(4)	In relation to counts 8, 9 and 10:
(i)	the sentence in relation to count 8 was ordered to be served concurrently with that in relation to count 9; and 
(ii)	the combined sentence was ordered to be served cumulatively upon the sentence in relation to count 10 to the extent of three years;
making the combined sentence for counts 8, 9 and 10 imprisonment for 12 years.
[22]	A table showing the cumulation and concurrency of the various offences, helpfully prepared by counsel for the respondent, is attached to these reasons as Appendix A.
[23]	In arriving at the above sentences, the sentencing Judge allowed a reduction of “approximately 25%” as a result of the guilty plea. 
[24]	Nona appeals to this Court against that sentence on the following grounds:
Ground 1:	The sentence was manifestly excessive in all of the circumstances.
Ground 2:	The learned sentencing Judge failed to take into account the sentencing principle in R v Ellis. 
Ground 3:	The learned sentencing Judge placed too much weight on the sentencing principles of general deterrence and specific deterrence and insufficient weight was given to the sentencing principle in R v Ellis and the guilty plea.
[25]	The principles to be applied in appeals of this nature are well settled.  An appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it can be shown that a sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.  The presumption is that there is no error.
[26]	The sentencing principle in R v Ellis referred to in the grounds of appeal is a reference to the decision of the New South Wales Court of Criminal Appeal in R v Ellis (1986) 6 NSWLR 603 at 604, where Street CJ referred to the additional leniency to be allowed in sentencing an offender, over and above that allowed for the offender’s plea of guilty, where there has been a voluntary disclosure of guilt by the offender.  Counsel for Nona relied upon the following passage from the judgment of Street CJ In Ellis.
“When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters the sentencing decision.  Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge.  It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing.  Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”
[27]	In R v Ellis, not only did the respondent plead guilty, but he voluntarily disclosed to police for the first time his involvement in seven armed robberies. The Ellis principle has since been applied in sentencing for both undetected and unsolved crimes.  
[28]	R v Ellis was decided in New South Wales prior to the enactment of legislation which expressly authorised a sentencing court to impose a lesser penalty having regard to the degree to which an offender assisted law enforcement authorities in the investigation of the offence concerned (or any other offence). The legislation also specified the matters which the court had to consider in deciding whether to impose a lesser penalty.  Nonetheless, the legislation appears to a large extent to codify the common law and courts in New South Wales and elsewhere continue to refer to “the Ellis principle” and “the Ellis discount” and acknowledge the public policy justification for additional leniency to be allowed in sentencing an offender where there has been a voluntary disclosure of guilt.  
[29]	
In this case, the Ellis principle applied in the sentencing of the appellant for the offences charged as counts 5, 6, 7, 8, 9, 10 and 11 in the indictment.  He had made admissions to this offending some eight months after committing the offences, at a time when the law enforcement authorities had not been able to obtain sufficient evidence to charge him and were unlikely to do so.  This was acknowledged by the learned sentencing Judge in his sentencing remarks:
"You have pleaded guilty to each of the offences in the indictment.  You are entitled to credit for your plea, the utilitarian benefits that flow from that plea and the acceptance by you of responsibility for your actions reflected in the plea.  I also accept that the plea indicates feelings of remorse on your part.  In addition, as I have indicated, I bear in mind that you disclosed your involvement in the offending at a time when the law enforcement authorities had not been able to establish your involvement.  You were told by the investigating officer that he did not have any sufficient evidence to charge you but you went on to incriminate yourself by making appropriate admissions.  That entitles you to an added element of leniency."  [underline emphasis added] 

Ground 2 must therefore fail.
[30]	Grounds 1 and 3 were argued in conjunction with each other.  The appellant complains in Ground 3 that the sentencing Judge placed too much weight on general and personal deterrence and insufficient weight on the plea of guilty and the principle in Ellis referred to above and that, as a result, the sentence was manifestly excessive.   
[31]	When the learned sentencing Judge turned to sentence the appellant, he convicted him on each count and expressly allowed "a discount of approximately 25% for the plea".  This 25% was an allowance limited to the pleas of guilty and did not include any additional discount or leniency on account of the Ellis principle.  Not only was it stated to be "for the plea", but it was allowed in respect of all counts on the indictment, including counts 1 to 4 in respect of which there was evidence (albeit including admissions) on which the appellant had been charged shortly after the offending.     
[32]	Although the learned sentencing Judge referred to the appellant's entitlement to an added element of leniency, which his Honour clearly intended the appellant should receive, he did not specify how he allowed for such leniency in the sentences imposed by him.  As a result, it is not possible to identify precisely what if any further leniency was granted, and how it was achieved: whether it was 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, or by some other means.    
[33]	Because of the public policy basis for the Ellis discount, there are arguably good reasons for a sentencing court to identify the discount or at least explain the way in which the discount has been allowed.  Given that the public policy objective is to encourage voluntary disclosure of guilt, it is desirable that an offender know that he has gained some leniency as a result of his voluntary disclosure.  It is desirable also that persons in the community know what they might stand to gain, in terms of leniency or discount, should they voluntarily disclose their guilt.  As was said by Adams J in Raad v The Queen: 
“There is much to be said for adopting in Ellis cases the approach used for pleas of guilty and in the other assistance cases, namely to specify the utilitarian discount given, not only in the Interests of transparency, but to further the policy objective of the discount.”

[34]	However, it must be borne in mind that the statement in R v Ellis was a “statement of a general principle or perhaps more accurately of a factor to be taken into account.  It is not the statement of a rule to be quantitatively, rigidly or mechanically applied”.   Decisions of courts dealing with the Ellis discount make it clear that the Ellis considerations include not only the public policy (utilitarian) aspect referred to above, but also the extent to which the voluntary disclosure of guilt reflects the offender’s remorse, good prospects for rehabilitation and the need for personal deterrence.  Because of the combination of overlapping sentencing considerations, some of which are already taken into account in the discount for the plea of guilty, it is not usual for courts to state separate quantified discounts in respect of the Ellis principle, even though  quantified discounts are expressly allowed for a plea of guilty.  Indeed, there is a strong judicial view that the Ellis discount should not be specified, for reasons explained by Bell JA (with Latham J concurring) in S v The Queen: 
“Reference to Ellis remains a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing. In an appropriate case this may be a powerful factor justifying leniency. The reasons for this involve a mix of considerations that are relevant to the exercise of the sentencing discretion, including that the voluntary disclosure of unknown guilt informs the assessment of remorse and the offender’s prospects of rehabilitation. Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228; 53 A Crim R 248 at 255 explained why, where an offender’s willingness to cooperate with the authorities is part of a complex of inter-related considerations, the attempt to separate out one or more factors will be artificial and illogical. His Honour’s observations are pertinent when considering an Ellis discount for the voluntary disclosure of otherwise unknown guilt. As was pointed out in Lewins v The Queen (2007) 175 A Crim R 40 at [19] the allocation of a discrete Ellis discount is likely to result in error; see too Ryan v The Queen (2001) 206 CLR 267 at 272-273; 118 A Crim R 538 at 542-543 per McHugh J.”   

[35]	In The Queen v Borkowski, Howie JA (with whom McClellan CJ and Simpson J agreed) referred to discrepancies in the application of the discount for the utilitarian value of pleas of guilty and set out in point form the principles laid down by the New South Wales Court of Criminal Appeal to be applied by sentencing courts.  Howie JA said that there was to be no separate quantified discount for the “Ellis discount”, citing Lewins v The Queen and S v The Queen.  This statement was probably obiter insofar as it referred to the Ellis discount.  Moreover, it was inconsistent with the decision of the New South Wales Court of Appeal in Irwin v The Queen.  
[36]	In our view, notwithstanding views expressed by appeal courts to the contrary, in some cases it may be appropriate and even desirable for the sentencing judge to separately quantify the Ellis discount, or to specify a combined discount for a guilty plea, remorse (if present) and the Ellis discount which would acknowledge the additional utilitarian value of the voluntary disclosure referred to in paragraphs [33] and [34] above.  In our view, the correct position is as stated by Callinan J at paragraph [185] of his judgment in Ryan:
“For myself I do not think good reason will always exist for an abstention from stating the quantum of such a discount. In a case in which it is one of relatively few relevant ‘subjective factors’ it may be helpful to do so, and should not interfere with the intuitive process that sentencing involves. Not to identify the discount or credit for disclosure will not generally provide a ground for appeal however and certainly does not do so here”. 
[37]	In this case, as properly conceded by Mr Lawrence SC for the appellant, the fact that the learned sentencing Judge did not quantify the discount or degree of leniency allowed as a result of the voluntary disclosures by Nona was not an error in the exercise of the sentencing discretion.  
[38]	Counsel for the appellant argued that one could infer from the sentence itself, which he contended was excessive, that the learned sentencing Judge had committed the error complained of in Ground 3, namely placing too much weight on the sentencing principles of general deterrence and specific deterrence and insufficient weight on the sentencing principle in R v Ellis and the guilty plea.
[39]	It cannot be said that insufficient weight was given to the guilty plea.  The sentencing Judge allowed a 25% reduction for the guilty plea which was entirely appropriate where an early plea of guilty is accompanied by genuine remorse.
[40]	In reliance on the statement of principle by Street CJ in Ellis, counsel for the appellant contended that in all cases where the principle applies, there should be “a considerable element of leniency”, “a significant added element of leniency” and that the added leniency which should have been allowed to Nona was at the “upper end of the scale”.  He referred to the inability of the authorities to obtain evidence and charge the appellant for the particularly tragic events caused by the appellant's arson activities charged as counts 9 and 10.  He referred to the fact that, eight months after the offences had been committed, the police investigation was in a serious cul-de-sac.  He argued, on the basis of evidence before the learned 

sentencing Judge, that a compelling aspect in the case was “the absolute sincerity of the appellant’s remorse, contrition and genuine atonement combined with the fact that, moved by the same from the sanctuary of the lack of evidence against him, he nevertheless .... for all the right reasons, and in particular for the benefit of the deceased’s family, gave himself up to the authorities thus allowing closure of some type for the victims.” 
[41]	In addition to Ellis, counsel for the appellant relied in support of this submission on the judgment of Kirby J in R v Ryan in which he held, (for reasons set out in detail at paragraphs [91] to [98]) that the sentencing Judge had been in error in failing to make “substantial allowance for the appellant's acknowledgment of offences that were otherwise unknown to the authorities”.  However, Kirby J was alone in considering that the appeal should be allowed on this ground.
[42]	In his judgment in Ryan, McHugh J said:
“The statement in Ellis that ‘the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency’ is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.”
[43]	
We agree with the statement of principle by the New South Wales Court of Criminal Appeal in R v GLB in which James J (with whom Sheller JA and O’Keefe agreed) said at para [33]:
“On the basis of the judgments of the judges in Ryan who formed the majority on this aspect of the appeal, I consider that, although a sentencing judge should allow some discount for a voluntary disclosure of guilt, a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge’s remarks on sentence that the judge has allowed a considerable or significant discount on this ground.”
[44]	In a case such as this, where the additional leniency accorded by application of the Ellis principle has not been specified, the approach which this Court must adopt is to ask whether, taking into account all of the relevant considerations, including the application of the Ellis principle, the sentence was manifestly excessive.
[45]	In all of the circumstances of this case, taking into account (inter alia) the extremely serious nature of the extended offending on the night in question; the tragic consequences of that offending; the significant fact that Nona was aware when he lit the fire in the garage at Baroalba Street, Leanyer that there was someone inside the house; his appalling criminal record and record of breaching suspended sentences by further offending; and taking into account also his guilty plea; his remorse; and his voluntary disclosures to police at a time when they did not have sufficient evidence to charge him, it cannot be said that the ultimate sentence of 15 years imprisonment with a non-parole period of 10 years was manifestly excessive.  Accordingly, Grounds 1 and 3 are not made out.  The appeal should be dismissed.
NONA – SENTENCES                                APPENDIX “A”		
Counts	Years
EX	
Eal	
	1	2	3	4	5	6	7	8	9	10	11	12	13	14	15	
1.
Stealing
2 weeks		

2.
U/entry 5 mths																					
3.
Agg U/entry
3 mths																				
4.
S240
8 mths																								
5
Crim dam 12 mths																											
6
Crim dam 12 mths																												
7.
Crim dam
8 mths					I																			
8.
S240
3 yrs																
9.
Ser harm
4 yrs																
10.
Mans
9 years																
11.
Stealing
2 weeks		

Total sentence = 12 months + 24 months + 12 years = 15 years, NPP 10 years