Citation: Regina v Cheney [1999] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 7 October 1999
Judge(s): Spigelman CJ, Newman J, Sully J
Background
The appellant was convicted in the Coffs Harbour District Court in June 1995 on 14 counts arising from a series of serious offences committed in the Port Macquarie area in late 1993. The offences included the kidnapping and sexual assault of two young girls aged nine and under ten years respectively, breaking and entering, using an offensive weapon to resist lawful detention, and causing actual bodily harm to two individuals.
The appellant and his then-girlfriend had been staying in the Port Macquarie district during the relevant period. The Crown case established that the appellant would leave at night, committing offences against young children in their homes, before returning in the early hours of the morning.
Following conviction, the sentencing judge imposed a complex structure of concurrent and cumulative terms totalling a maximum exposure extending to 2025. The appellant challenged both the convictions and the sentences on appeal.
Legal Issues
- Whether the conviction on Count 4 (entering a dwelling house with intent to commit a felony) disclosed a known offence and could properly remain on the indictment
- Whether the sentences imposed were correct in law, including whether the 20-year fixed term on Count 8 (kidnapping of the second child) was appropriate
- Whether the sentencing judge correctly applied the principle of totality when structuring sentences across multiple serious counts
- Whether the imposition of a fixed term, rather than minimum and additional terms, was appropriate for Count 8, which would ordinarily attract a parole-eligible sentence structure
Decision
The Court upheld the conviction appeal on the narrow ground that Count 4 disclosed no offence known to law. The Crown properly conceded this point, and the conviction on that count was set aside. All remaining convictions were dismissed on appeal.
On sentence, the Court accepted that the sentencing judge had correctly identified Count 8 (the kidnapping of the second victim, a child under ten) as representing the worst type of case for that offence. The other individual sentences were found to be beyond challenge.
The sentencing error identified by the Court lay in the imposition of a fixed term of 20 years on Count 8 in a case where, considered in isolation, that offence would ordinarily have attracted minimum and additional terms. The Court held that applying the totality principle, the appropriate course was to substitute a fixed term equivalent to what the minimum term would have been in a standalone sentencing exercise. Newman J assessed that figure at 15 years.
The substituted structure cascaded through the other sentences, which had been arranged to commence upon the expiry of the Count 8 term. The overall framework was accordingly recalculated, with sentences for Counts 1, 2, 3, and 5 now commencing on 22 June 2010 rather than 22 June 2015.
Orders Made
- Appeal against conviction dismissed (all counts except Count 4)
- Conviction on Count 4 set aside (Crown concession that the count disclosed no known offence)
- Leave to appeal against sentence granted
- Sentence appeal upheld; sentences of Kirkham DCJ quashed and the following substituted:
- Count 1: Minimum term 2 years commencing 22 June 2010; additional term 8 years expiring 21 June 2020
- Counts 2 and 3: On each charge, minimum term 2 years commencing 22 June 2010; additional term 3 years expiring 21 June 2015
- Count 5: Fixed term 12 months commencing 22 June 2010
- Count 6: Fixed term 5 years commencing 22 June 1995
- Count 7: Fixed term 7 years commencing 22 June 1995
- Count 8: Fixed term 15 years commencing 22 June 1995 (reduced from 20 years)
- Counts 9, 11 and 12: Fixed term 10 years commencing 22 June 1995
- Count 10: Fixed term 5 years commencing 22 June 1995
- Counts 13 and 14: Fixed term 3 years each commencing 22 June 1995
Key Takeaways
- The Court of Criminal Appeal confirmed that where a count on an indictment discloses no offence known to law, a conviction on that count cannot stand, even in the context of an otherwise overwhelming case on the remaining counts.
- Imposition of a fixed term for a serious offence that would ordinarily attract minimum and additional terms requires careful justification; the Court found error where the sentencing judge imposed a 20-year fixed term on Count 8 without sufficiently accounting for that structural principle.
- The totality principle, which requires a sentencing court to ensure the combined effect of multiple sentences is just and appropriate, operates not only to cap overall sentences but also to inform the internal structure of individual terms within a cumulative framework.
- Where totality considerations lead to the imposition of a fixed term in lieu of minimum and additional terms, the Court held that the fixed term should reflect what the minimum (not the total) term would have been if the offence were sentenced in isolation.
- A finding that an offence represents the worst type of case does not by itself resolve all sentencing questions; the structural requirements governing fixed versus parole-eligible sentences remain applicable and must be addressed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Greenwood v Ryan (1846) Legge 275
- R v Greatorex 74 A Crim R 496
- Walker v The Queen 64 ALJR 321
- R v Stephenson [1976] VR 326
- Shaw v The Queen (1952) 85 CLR 365
- Killich v The Queen (1981) 147 CLR 565
- Lawrence v The Queen (1981) 38 ALR 1
- Chin v The Queen (1984-85) 157 CLR 671
- McKinney v The Queen (1990-91) 171 CLR 468
- R v Olsen (CCA, unreported, 9 February 1989)
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Rowe (1996) 89 A Crim R 467