AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 30 June 1999

Regina v Crowe

[1999] NSWCCA 239

Sexual offences
ACTS CITED : CRIMES ACT 1900

Citation: Regina v Crowe [1999] NSWCCA 239
Court: New South Wales Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Sully J; Bell J

Background

The appellant had been convicted by jury in the District Court at Tamworth of two serious sexual offences against a young girl to whom he stood in a position of familial trust. The first was aggravated indecent assault under s 61M(1) of the Crimes Act 1900, which carries a maximum of seven years imprisonment. The second was aggravated sexual intercourse without consent under s 61J(1) of the same Act, which carries a maximum of 20 years penal servitude.

The sentencing judge, Solomons DCJ, imposed cumulative sentences totalling 11 years and three months, with nine years to actually be served. The appellant sought leave to appeal against those sentences.

Significantly, the appellant had previously appeared before the Court in 1991 in relation to two earlier offences involving the same victim. On that occasion he received only recognisances (a form of good behaviour bond), each in the sum of $1,000 for five years. The first of the current offences was committed during the currency of those recognisances; the second occurred after they expired.

  • Whether the cumulative structure of the sentences imposed by the District Court was appropriate, or whether they should have been ordered to run concurrently.
  • Whether the overall sentence imposed was consistent with established sentencing principles, including parity and proportionality.

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal on the basis that the cumulative structure of the sentences was not warranted. Sully J found that the offence on count one and the offence on count two were not sufficiently separate in character to justify accumulation. The principle of consistency in sentencing required the sentences to be restructured to run concurrently.

The Court confirmed the sentence on count two (the s 61J(1) offence) in full: penal servitude for eight years and nine months, comprising a minimum term of six years and six months and an additional term of two years and three months. For count one, the Court substituted a fixed term of two years, to be served concurrently. Sully J noted that a fixed term is inherently more burdensome than a sentence expressed with minimum and additional terms, and that the fixed term of two years on count one therefore represented a fair outcome within a concurrent structure.

The Court acknowledged the extreme gravity of the offending and the appellant's poor history. The appellant had re-offended during the currency of the 1991 recognisances, which the Court described as particularly egregious given the leniency originally extended to him. Sully J stated in plain terms that the reduction in overall sentence resulted solely from the need to preserve sentencing consistency, and not from any view that the conduct was other than serious.

The Court also affirmed the sentencing judge's treatment of the plea of not guilty. The appellant was not penalised for exercising his right to contest the charges, but equally received no discount for a guilty plea, particularly given the distress caused to the young victim by a hotly contested trial.

Orders Made

  • Leave to appeal against sentences granted.
  • Appeal upheld; both sentences quashed.
  • On count two: penal servitude for 8 years and 9 months, comprising a minimum term of 6 years and 6 months (commencing 26 October 1998, expiring 25 April 2005) and an additional term of 2 years and 3 months (commencing 26 April 2005).
  • On count one: imprisonment for a fixed term of 2 years, commencing 26 October 1998, to be served concurrently.

Key Takeaways

  • Cumulative sentences are not always appropriate where offences are not sufficiently distinct in character; the Court of Criminal Appeal restructured the sentences here to run concurrently to preserve sentencing consistency.
  • A fixed term of imprisonment is regarded as inherently more burdensome than a sentence expressed as minimum and additional terms, a distinction the Court applied when imposing the concurrent fixed term on count one.
  • Re-offending during the currency of a recognisance is treated as especially aggravating, as it involves breach of the implicit assurances that supported the grant of that lenient order.
  • An offender who exercises their right to plead not guilty is not penalised for doing so, but also forfeits any sentencing discount that would have been available on an early guilty plea, particularly in cases involving serious sexual offences against young victims.
  • In dismissing the severity of the original cumulative structure, the Court was explicit that the concession on sentence reflected the demands of sentencing principle rather than any diminished view of the gravity of the appellant's conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent)
- Crimes Act 1900 (NSW), s 61M(1) (aggravated indecent assault)

Cases: No specific cases were cited in the portions of the judgment provided.