Citation: R v Smith [2000] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 10 April 2000
Judge(s): Hulme J; Dowd J
Background
The appellant pleaded guilty in the District Court to one count of sexual intercourse without consent, committed on 5 May 1998. The sentencing judge, Twigg DCJ, imposed a total sentence of seven years' penal servitude, comprising a minimum term of four and a half years and an additional term of two and a half years. Special circumstances were found on the basis of the appellant's rehabilitative needs.
The appellant was Aboriginal, had a significant history of alcohol dependency, and had a prior conviction for rape for which he had received a sentence of three and a half years' imprisonment in 1992. At the time of the present offence, he was subject to a recognisance.
The appellant sought leave to appeal against the sentence on multiple grounds, contending the sentencing judge had assessed the offence at too high a level of seriousness, had taken into account impermissible matters, and had failed to give adequate weight to subjective factors including his plea, his Aboriginality, and his prospects of rehabilitation.
Legal Issues
- Whether the sentencing judge assessed the objective seriousness of the offence at an inappropriately high level
- Whether the sentencing judge took into account facts not properly before the court, including alleged conduct on the previous night and additional sexual acts not specified in the single charge
- Whether adequate weight was given to the appellant's guilty plea, his Aboriginality and its connection to his alcohol dependency, and his prospects of rehabilitation
- Whether the sentence was manifestly excessive overall
- Whether the sentencing judge had power under s 24 of the Sentencing Act to impose conditions on the grant of parole
Decision
The Court found that some of the grounds had partial merit, particularly ground three concerning impermissible facts. The sentencing judge's references to events the prior night formed part of a chronological summary rather than an aggravating finding, and were not taken against the appellant. However, references to other sexual acts alleged by the complainant, which had been excluded from the charge by the preferred indictment, were more problematic. The Court accepted that the judge may have erred by treating those additional acts as part of the offence for sentencing purposes.
Despite these errors, the Court declined to substitute a different sentence. A total sentence of seven years, representing half the maximum for a second rape offence committed while on a recognisance, was held to be appropriate and not manifestly excessive. The Court also found the sentencing judge had been sufficiently conscious of the Fernando principles relating to Aboriginality and alcohol dependency, noting that the pre-sentence report itself had expressed doubt about the appellant's motivation to address his alcohol problems.
One specific error was identified and corrected. The sentencing judge had purported to impose conditions on the grant of parole. Under s 24 of the Sentencing Act, that power lay with the Parole Board, not the sentencing court. That portion of the sentence was quashed. The remainder of the sentence was left undisturbed.
Orders Made
- Leave to appeal granted
- That part of the sentence commencing "the parole period is conditioned" be quashed
- Otherwise, the appeal dismissed
Key Takeaways
- Where a fresh indictment charges only one count without specifying which of several alleged acts constitutes the offence, the sentencing court cannot treat all alleged acts as aggravating matters in the absence of agreement between the parties.
- In dismissing the broader appeal, the Court of Criminal Appeal confirmed that a total sentence of seven years (half the statutory maximum) was appropriate for a second rape offence committed while the offender was on a recognisance, notwithstanding the sentencing errors identified.
- The Fernando principles, requiring courts to consider the relationship between an offender's Aboriginality and alcohol dependency, do not necessarily require extended express analysis; it is sufficient that the sentencing judge is demonstrably conscious of those factors.
- Under s 24 of the Sentencing Act, the power to impose conditions on the grant of parole rests with the Parole Board, not the sentencing court; conditions purportedly imposed by the sentencing judge on the parole period were beyond power and were quashed.
- Identifying errors in a sentencing discretion does not automatically warrant a different sentence; the Court of Criminal Appeal must also be satisfied that some other sentence, more or less severe, is warranted in law before intervening.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61H (definition of sexual intercourse)
- Sentencing Act (NSW), s 24 (parole conditions)
- Criminal Appeal Act (NSW), s 63
Cases:
- R v Fernando (1994) 76 A Crim R 58 (Wood CJ at CL) (principles on sentencing Aboriginal offenders and alcohol dependency)