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Court of Criminal Appeal 1 May 2000

R v Rush

[2000] NSWCCA 134

Sexual offences

Citation: R v Rush [2000] NSWCCA 134
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2000
Judge(s): Stein JA, Dunford J, Simpson J (Simpson J delivering the principal judgment)

Background

The respondent, a man aged 34 at the time of the offences, was convicted or pleaded guilty to a series of serious offences committed across two separate incidents in September 1998 at shopping centres on the NSW Central Coast. The offences included two counts of taking or leading away a person for advantage (under s 90A of the Crimes Act 1900), one count of aggravated sexual assault (under s 61J(1)), and one count related to an act of indecency involving a child under ten years of age.

In the District Court, Judge Job sentenced the respondent to a total term of nine years, comprising a minimum term of six years and an additional term of three years. The Crown appealed, arguing the sentences were manifestly inadequate given the objective seriousness of the offending.

  • Whether the sentences imposed by the District Court were manifestly inadequate, either individually or in their totality, having regard to the objective gravity of the offences
  • Whether the Crown could seek an increase in the sentence for the indecency count on the basis that the indictment incorrectly recorded the applicable section and maximum penalty
  • Whether the special circumstances finding made by the sentencing judge, and the resulting adjustment to the proportion between minimum and additional terms, was appropriate
  • Whether, on resentencing, the Court should apply the Sentencing Act 1989 or the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal agreed with the Crown that the sentences for two of the five counts were manifestly inadequate. Simpson J (with Stein JA and Dunford J agreeing) found the total sentence did not adequately reflect the criminality displayed by the respondent across the two separate incidents.

On the indecency count (count 2), the Court declined to interfere. The indictment had incorrectly cited s 61N(1), which carried a maximum penalty of two years rather than the seven years applicable under the correct provision (s 61O(2)). Because this error was attributable to the Crown alone, and the respondent had pleaded guilty on the basis of the indictment as presented, the Court proceeded on the lower maximum. The sentence for count 2 was therefore not disturbed.

In relation to the second s 90A offence (count 3), the sentence was described as low, but the Court declined to vary it because any sentence would be subsumed within the sentence for the aggravated sexual assault count.

The Court allowed the appeal and resentenced the respondent in relation to count 1 (the first s 90A offence) and count 5 (the aggravated sexual assault). Both counsel agreed that resentencing should proceed under the Sentencing Act 1989 rather than the new sentencing regime. The respondent's outburst following the jury verdict was noted as relevant only to confirm the absence of contrition, and was expressly not treated as a basis for additional punishment.

Orders Made

  • Count 1 (s 90A offence, 2 September 1998): Sentence quashed and replaced with a total term of three years and six months, comprising a minimum term of two years and six months (commencing 18 September 1998, expiring 17 March 2001) and an additional term of one year (commencing 18 March 2001, expiring 17 March 2002)
  • Count 5 (s 61J(1) aggravated sexual assault): Sentence quashed and replaced with a total term of seven years and six months, comprising a minimum term of five years (commencing 18 March 2001, expiring 17 March 2006) and an additional term of two years and six months (commencing 18 March 2006, expiring 17 September 2008)
  • Counts 2 and 3: Crown appeal dismissed; sentences undisturbed

Key Takeaways

  • Where a drafting error in an indictment is attributable solely to the Crown, the sentencing court and any appellate court will proceed on the basis of the incorrectly stated maximum penalty rather than the correct one, particularly where the respondent has pleaded guilty to the indictment as presented.
  • A Crown appeal on the ground of manifest inadequacy does not require the Crown to identify a specific error in the sentencing process; establishing that the sentences themselves are grossly disproportionate to the objective seriousness of the offending may be sufficient.
  • The Court of Criminal Appeal confirmed that the absence of subjective mitigating circumstances, combined with a lengthy criminal history and no evidence of contrition, supports heavier sentences and limits the weight available for pleas of guilty on utilitarian grounds.
  • Where a lower sentence on one count will be entirely subsumed within a longer cumulative sentence on a related count, an appellate court may decline to interfere with the lesser sentence even if it is below the expected range.
  • Both parties agreed that resentencing after a successful Crown appeal should occur under the sentencing legislation in force at the time of the original sentencing, not the later enacted regime.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61N(1), 61O(2), 90A
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Everett v R (1994) 181 CLR 295
- R v Pearce [1998] 195 CLR 610