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Court of Criminal Appeal 7 July 1999

REGINA v THOMAS

[1999] NSWCCA 168

Sexual offences
MULTIPLE SEXUAL OFFENCES CROWN APPEAL AGAINST SENTENCE PRINCIPLE OF TOTALITY

Citation: [1999] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 7 July 1999
Judge(s): Spigelman CJ, Studdert J, Adams J (Adams J delivering the principal judgment)

Background

The respondent had pleaded guilty in the District Court to ten counts of serious sexual offences against children, including multiple counts of buggery, homosexual intercourse with males aged between 10 and 18, sexual intercourse without consent with a person under 16, and indecent assault. He also asked the court to take into account a further 16 offences under a Form 2 (a procedural mechanism that allows additional offences to be acknowledged at sentencing without separate conviction). The offending spanned approximately eight years, from 1978 to 1986, and involved multiple child victims deliberately targeted from vulnerable backgrounds.

The respondent was already serving a lengthy sentence for armed robbery and related offences imposed in August 1989, with a minimum term expiring in April 2001. He had also been convicted in 1989 of separate sexual offences involving a further child victim. Acting Judge Horler QC sentenced the respondent in the District Court on 17 December 1998.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912, arguing that the sentences imposed were manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate given the nature, number, and duration of the offending.
  • How the principle of totality applies when a respondent is already serving a substantial existing sentence at the time of sentencing for further serious offences.
  • Whether the sentencing judge adequately identified the circumstances of each individual offence before applying any adjustment for totality.
  • How sentences should be structured in a Crown appeal, including the appropriate reduction to account for the element of double jeopardy (the respondent effectively standing for sentence a second time).

Decision

The Court of Criminal Appeal allowed the appeal, finding the sentences imposed below were manifestly inadequate. Adams J, with whom Spigelman CJ and Studdert J agreed, observed that the offending was premeditated and systematic, carried out over eight years against multiple vulnerable children who were deliberately targeted. The number of offences particularised in the indictment and on the Form 2 represented only those the respondent could most clearly recall, indicating the true extent of offending was even greater.

A central concern was that the sentencing judge had not sufficiently identified the circumstances of each individual offence before applying the principle of totality. The principle of totality requires a court to ensure that the combined effect of cumulative sentences is not disproportionate to the overall criminality involved. However, the Court made clear this adjustment must follow a proper individual assessment of each offence and cannot substitute for it.

The Court also addressed the relevance of the existing sentences. Because the respondent remained on the minimum term of his 1989 sentences, any new sentence had to be structured in a way that produced an overall outcome proportionate to the total criminality, including both the earlier and present offending. The Court acknowledged that a downward adjustment was appropriate to avoid an arithmetically excessive aggregate, but concluded the adjustment made below went too far.

In resentencing, Adams J also noted that sentencing judges should expressly state the precise factual basis upon which they proceed, particularly where a tendered statement of facts and a record of interview may not be entirely consistent. The Court further noted it had applied a modest reduction from what it would otherwise have imposed, to reflect the double jeopardy element inherent in a successful Crown appeal.

Orders Made

  • Appeal allowed.
  • Count 1: Fixed term of six years' imprisonment commencing 17 December 1998, expiring 16 December 2004 (Form 2 offences taken into account).
  • Count 2: Six years' penal servitude comprising a minimum term of two years commencing 17 December 2004 (expiring 16 December 2006) and an additional term of four years expiring 16 December 2010.
  • Counts 3, 4, 5, 6, 7, and 8: Fixed terms of six years each, concurrent with Count 1, commencing 17 December 1998 and expiring 16 December 2004.
  • Count 9: Fixed term of two years cumulative upon Counts 6, 7, and 8, commencing 17 December 2004 and expiring 16 December 2006.
  • Count 10: Fixed term of three months concurrent with Count 1, commencing 17 December 1998 and expiring 16 February 1999.
  • Earliest parole eligibility date: 16 December 2006.

Key Takeaways

  • The principle of totality requires courts to avoid a disproportionate aggregate sentence through cumulation, but it cannot be applied without first individually assessing the circumstances and gravity of each offence.
  • A Crown appeal under s 5D of the Criminal Appeal Act 1912 carries an inherent double jeopardy element: because the respondent faces sentencing a second time, the Court of Criminal Appeal will ordinarily impose a sentence somewhat below what it considers the correct first-instance sentence would have been.
  • Where a respondent is already serving an existing sentence at the time of further sentencing, the sentencing court must structure new sentences so that the overall effect across all sentences is proportionate to the total criminality, not just the offending before the court.
  • Sentencing judges should expressly state the factual basis upon which they proceed, particularly where a Crown statement of facts and a prisoner's record of interview may be in conflict. The mere failure to object to a tendered statement of facts does not invariably amount to an admission of every matter within it.
  • The representative character of charges, combined with Form 2 offences, is relevant to the gravity of the sentence even though the additional offences do not result in separate convictions.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 78K, 79, 81, 87A
- Criminal Procedure Act 1986 (NSW), s 21

Cases:
- Pearce v R (1998) 156 ALR 684