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Court of Criminal Appeal 5 May 2000

Regina v CJB

[2000] NSWCCA 161

Sexual offences
CRIMINAL LAW SENTENCE APPEAL MULTIPLE OFFENCES

Citation: Regina v CJB [2000] NSWCCA 161
Court: Court of Criminal Appeal, New South Wales
Date: 5 May 2000
Judge(s): Hulme J; Carruthers AJ

Background

The applicant, a stepfather referred to throughout as CJB, pleaded guilty in the Newcastle District Court to eight counts of child sexual assault against his stepdaughter. The offending spanned nearly six years, from September 1987 to May 1993, and began when the complainant was ten years old. The applicant had occupied a clear position of parental trust, with the complainant believing him to be her biological father until she was twelve.

At sentencing in October 1998, Judge Job QC imposed a fixed term of three years penal servitude on the eighth count (carnal knowledge by a stepfather), to be served first. The sentences on counts one to seven were then accumulated on that fixed term, yielding a minimum term of four years followed by an additional term of three years, for a total effective sentence of ten years penal servitude.

The applicant sought leave to appeal, contending that the accumulation of the final sentence on the earlier concurrent sentences produced an unjust overall result.

  • Whether the sentencing structure, specifically the accumulation of the eighth count onto the earlier concurrent sentences for counts one to seven, was legally permissible.
  • Whether the total sentence offended the principle of totality as articulated by the High Court.
  • Whether his Honour's exercise of sentencing discretion miscarried in any identifiable way.

Decision

The Court of Criminal Appeal rejected the application for leave to appeal in its entirety, finding that the sentences fell comfortably within the available sentencing discretion.

Carruthers AJ acknowledged that the sentencing structure was not easy for a lay person to follow, particularly because the sentencing judge did not explain in his remarks why he had structured the sentences as he did. However, the Court noted that the high degree of criminality across so many years, and the large number of counts, meant different judges might reasonably adopt different structural approaches, without any one approach necessarily being erroneous.

The Court was satisfied that the structure did not offend the totality principle as explained by the High Court in Mill v The Queen or the more recently stated principles in Pearce v The Queen. Carruthers AJ, with whom Hulme J agreed, described the applicant's case as one where "a worse case is difficult to envisage."

The subjective factors taken into account at first instance, including the guilty pleas, the applicant's lack of prior custody for this type of offending, and the likelihood of serving the sentence in protective custody, were properly recognised by the sentencing judge. Those matters supported a finding of special circumstances under the then-applicable sentencing legislation, justifying an extended additional term relative to the minimum term.

Orders Made

  • The application for leave to appeal is refused.
  • A suppression order was made prohibiting publication of any part of the proceedings in a manner that would identify the complainant or her children; the applicant is to be referred to only as "CJB" in any publication.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that accumulating a sentence for one category of offence onto earlier concurrent sentences for related offences does not automatically offend the totality principle.
  • The totality principle, as stated in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, requires courts to assess whether the overall sentence is just, not whether any particular structural arrangement is adopted.
  • Where an applicant challenges sentencing structure rather than quantum, the Court will not intervene unless the structure produces an outcome outside the available discretion.
  • Subjective factors such as guilty pleas, absence of prior relevant custodial history, and the likelihood of protective custody remain relevant to a finding of special circumstances, which may extend the additional (non-parole) term relative to the minimum term.
  • Sexual assault offences committed by a person standing in a position of trust toward a child are treated as warranting significant weight on general deterrence in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(2), 73
- Sentencing Act 1989 (NSW), s 11(2)

Cases
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610