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Court of Criminal Appeal 29 August 2000

REGINA v. SMITH

[2000] NSWCCA 343

Sexual offences
CRIMINAL LAW SENTENCE INADEQUATE ON RE

Citation: Regina v Smith [2000] NSWCCA 343
Court: New South Wales Court of Criminal Appeal
Date: 29 August 2000
Judges: Mason P, Levine J, Greg James J

Background

The Director of Public Prosecutions appealed against the sentence imposed on the respondent in the District Court after he pleaded guilty to one charge of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years' imprisonment.

The facts, accepted by consent, were serious. The complainant was approximately 11 years old when the respondent, her cousin, entered her bedroom while she was asleep, removed her clothing, and had penile vaginal intercourse with her without her consent. The complainant became pregnant and gave birth to a child who was plainly the respondent's.

The District Court judge sentenced the respondent to a head sentence of three years and six months with a non-parole period of 20 months, backdated to the date of his arrest on 29 April 1999. The Crown argued this sentence was manifestly inadequate and that the backdating was also erroneous.

  • Whether the sentence imposed by the District Court was manifestly inadequate, thereby warranting intervention by the Court of Criminal Appeal under s 5D of the Criminal Appeal Act 1912.
  • Whether the sentencing judge erred in backdating the sentence to the date of arrest, given the respondent was simultaneously serving sentences for unrelated offences from that same date.
  • What sentence should be substituted on re-sentencing, including whether a discount for guilty plea applied under the principles in Regina v Thomson & Houlton [2000] NSWCCA 309.

Decision

On the backdating issue, the Court acknowledged that the sentencing judge's remarks lacked adequate reasoning to explain the decision to backdate. However, the Court accepted that there was a proper discretionary basis on which the backdating could have been ordered, and declined to intervene on that ground alone.

On the central question of adequacy, the Court concluded that the sentence was manifestly inadequate. Greg James J examined the gravity of the offending: rape of a sleeping 11-year-old within a family home, resulting in pregnancy, with the family context having operated to suppress the victim's complaint. The sentencing judge had identified all the relevant aggravating features and acknowledged the need for a heavy penalty, but the sentence ultimately imposed did not reflect that appreciation. The Court found the sentence so far outside the permissible range as to disclose an error of principle.

In re-sentencing, the Court took into account the double jeopardy the respondent faced on appeal, his psychiatric condition (material placed before the Court of Criminal Appeal for the first time), and the application of Thomson & Houlton, which required a discount of approximately 20% for the guilty plea. The Court also retained the sentencing judge's directions regarding supervised parole.

Orders Made

  • Crown appeal allowed.
  • Sentence set aside and respondent re-sentenced to a total term of four years and six months, commencing 29 April 1999, with a non-parole period of 27 months from that date, expiring 28 July 2001.
  • Sentences declared concurrent with sentences previously imposed for unrelated offences.
  • Supervised parole conditions confirmed.
  • 28 July 2001 specified as the earliest date the respondent would be eligible for release on parole, in accordance with s 48 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A sentence may be manifestly inadequate even where the sentencing judge correctly identified all relevant aggravating factors, if the sentence ultimately imposed does not reflect that analysis in a meaningful way.
  • Under s 5D of the Criminal Appeal Act 1912, the Court of Criminal Appeal will intervene where a sentence is so far outside the permissible range of a proper discretionary exercise as to demonstrate an error of principle, applying Griffiths v The Queen (1997) 137 CLR 293 and Everett v The Queen (1994) 181 CLR 295.
  • Where a Crown appeal against sentence succeeds, the substituted sentence will ordinarily be less than the maximum that could have been imposed at first instance, with a further reduction available to account for the double jeopardy facing the respondent.
  • Following Regina v Thomson & Houlton [2000] NSWCCA 309, a guilty plea attracts a structured discount on sentence, applied in this case at approximately 20%.
  • A lack of adequate reasoning in sentencing remarks may constitute a procedural error of the kind identified in The Queen v Fleming (1998) 158 ALR 379, even where an underlying discretion to make the relevant order existed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 5D
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 48

Cases
- Everett v The Queen (1994) 181 CLR 295
- Regina v Allpass (1994) 72 A Crim R 561
- The Queen v Hayes (1987) 29 A Crim R 452
- The Queen v Warfield (1994) 34 NSWLR 200
- Regina v Kalache [2000] NSWCCA 2
- The Queen v Fleming (1998) 158 ALR 379
- Hartikainen v The Queen (CCA, unreported, 8 June 1993)
- Letteri (CCA, unreported, 18 March 1992)
- PVH (CCA, unreported, 2 May 1996)
- Morrow [1999] NSWCCA 64
- May [1999] NSWCCA 40
- Griffiths v The Queen (1997) 137 CLR 293
- Regina v Thomson & Houlton [2000] NSWCCA 309