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Court of Criminal Appeal 6 September 1999

R v Sharrock

[1999] NSWCCA 289

Sexual offences
SENTENCE STATUTORY ORDER ERROR OF NO AFFECT.

Citation: R v Sharrock [1999] NSWCCA 289
Court: New South Wales Court of Criminal Appeal
Date: 6 September 1999
Judge(s): Meagher JA; James J; Sperling J

Background

The applicant had been convicted in the District Court of multiple sexual assault offences against three separate victims, committed in April and May 1997. The most serious offence involved the rape of an 80-year-old woman who was wheelchair-bound and had one leg amputated. The trial judge, Woods QC DCJ, sentenced the applicant to cumulative terms including a minimum period of 18 years across all offences, with the total sentences to be served reaching 22 years.

The applicant sought leave to appeal against the sentences. His counsel argued, among other things, that the principal sentence was excessive and that the combined sentences improperly exceeded what might be imposed in a murder case.

  • Whether the sentence of 16 years (minimum 12, additional 4) for the most serious offence was manifestly excessive
  • Whether it was legally permissible for sentences for serious rape to equal or exceed sentences typically imposed for murder
  • Whether the sentencing judge had made an error in structuring the minimum and additional terms in light of his expressed finding of special circumstances
  • Whether any such error was material enough to warrant intervention by the Court of Criminal Appeal

Decision

The Court rejected the submission that the principal sentence was excessive. Meagher JA described the offending as among the most serious he had encountered, noting that the maximum available sentence would be 20 years for a worst-case offence, and that the reduction to 16 years was justified on the facts. The Court also rejected the argument that sentences for serious rape should not equal or exceed those for homicide, finding no reason in principle why that could not occur in an appropriate case.

On the sentencing structure, all three judges identified an inconsistency in the sentencing judge's remarks. The judge had expressly found special circumstances under the relevant sentencing legislation, which would justify a longer-than-usual additional term. However, the sentences actually imposed (minimum 12 years, additional 4 years) reflected the statutory default ratio rather than any departure from it. The finding of special circumstances had not been given practical effect.

Meagher JA took the view that the error was immaterial: the judge clearly intended a minimum of 12 years and an additional 4 years, and re-sentencing would produce the same result. He would have dismissed the appeal. However, James J (with Sperling J agreeing) considered it necessary to give effect to the judge's expressed intention by restructuring the sentence for the offences against the second victim to a minimum of 10 years and an additional term of 6 years, keeping the total term at 16 years. The orders of the Court followed James J's approach.

Orders Made

  • Leave to appeal against sentence granted
  • Sentences imposed for the offences committed against the first and third victims confirmed
  • Sentences imposed for the offences of aggravated sexual assault without consent committed against the second victim quashed
  • In lieu thereof, the applicant sentenced to a minimum term of penal servitude of 10 years commencing 10 June 2003, expiring 9 June 2013, and an additional term of 6 years commencing 10 June 2013
  • All other sentences imposed by the sentencing judge confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in an appropriate case, sentences imposed for very serious sexual assault can equal or exceed sentences typically imposed for murder. No rule of principle prevents this outcome.
  • A sentencing judge's express finding of special circumstances must be given practical effect in the structure of the sentence. Where a judge finds special circumstances but then imposes sentences reflecting the statutory default ratio, the resulting inconsistency may warrant intervention on appeal.
  • In dismissing the appeal on the severity of the principal sentence, the Court treated an offence involving extreme vulnerability of the victim, the use of a weapon, and an appalling prior record as falling within the worst category of such offending, justifying a sentence close to the maximum.
  • Where a sentencing error does not affect the substance of the outcome the judge clearly intended, it may be characterised as immaterial. However, a majority of the Court here considered correction appropriate to reflect the judge's stated intentions.
  • Under the applicable sentencing legislation, a finding of "special circumstances" operates to justify a longer-than-usual additional term. The sentencing court must ensure its formal orders actually reflect any such finding.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 5(2) (special circumstances justifying departure from the statutory ratio between minimum and additional terms)

Cases cited: None identified in the judgment text or metadata.