AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 12 September 2000

REGINA v. GREENAWAY

[2000] NSWCCA 368

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CROWN CONCEDES GROUND OF APPEAL APPEAL ALLOWED NECESSARY TO RE SENTENCE ON OTHER COUNTS

Citation: [2000] NSWCCA 368
Court: New South Wales Court of Criminal Appeal
Date: 12 September 2000
Judge(s): Priestley JA, Greg James J, Kirby J

Background

The appellant had pleaded guilty in the District Court at Newcastle to six counts of criminal offences, including four counts of indecent assault upon a male under s 81 of the Crimes Act 1900, one count of buggery under s 79, and one count of committing an act of gross indecency under s 78Q(1). He was convicted and sentenced on all six counts, with the overall effect being a total sentence of seven years with a minimum term of five years.

The sentencing proceedings were attended by limited submissions on behalf of the appellant. When the matter came before the Court of Criminal Appeal, the Crown's written submissions drew attention to a significant problem with count four, which prompted the appellant to seek both an extension of time to appeal and leave to appeal against conviction on that count.

Count four alleged an indecent assault occurring between 1 November 1983 and 31 December 1984. This date range straddled a critical legislative change: the Crimes (Amendment) Act 1984 had repealed s 81 and inserted s 78Q, with the amendments taking effect on 8 June 1984.

  • Whether a conviction could be maintained on a count where the alleged offence date spanned the repeal of one provision and its replacement by a new offence, making it impossible to determine which offence was committed
  • Whether, following the quashing of count four, the sentences on the remaining counts required adjustment to reflect the changed structure of cumulation

Decision

The Crown conceded that the conviction on count four could not be maintained. Because the date range specified in the charge ran across the commencement of the Crimes (Amendment) Act 1984, it was impossible to determine whether the conduct occurred under the repealed s 81 or the new s 78Q. Since the old offence was abolished and the new provision created a distinct offence, no valid conviction could stand under either. The charge sheet had attempted to capture both provisions by listing them together, but this did not resolve the fundamental uncertainty.

The Court extended time to appeal, allowed the appeal against conviction on count four, quashed the conviction and sentence on that count, and directed an acquittal. Greg James J, with Priestley JA and Kirby J agreeing, noted that the specification of dates in an indictment is ordinarily a matter of particulars, but in appropriate circumstances those particulars can demonstrate that an offence is not maintainable in law.

On resentencing, the Court found it necessary to adjust the structure of the remaining sentences. The sentence on count three had been expressed as cumulative on the sentence for count four, which was now quashed. The Court considered the principle of totality, the requirement from Pearce v The Queen that individual sentences reflect individual crimes, and the presence of special circumstances. It concluded that the sentence on count three should instead be expressed as cumulative upon the sentence on count five, with adjusted commencement and non-parole period dates.

The Court otherwise left the existing sentences undisturbed, finding no reason to interfere with the findings of special circumstances or the individual sentences on the remaining counts.

Orders Made

  • Extension of time to appeal against conviction on count four: granted
  • Appeal against conviction on count four: allowed
  • Conviction and sentence on count four: quashed; acquittal directed
  • Leave to appeal against sentence: granted
  • Sentence on count three varied so as to be cumulative upon the sentence on count five, expressed as five years imprisonment with a non-parole period of three years, commencing 13 May 2000 with the non-parole period expiring 12 May 2003

Key Takeaways

  • Where a charge date range straddles the repeal of an offence and its replacement by a new offence, and it is impossible to determine when within that range the conduct occurred, a conviction under either provision cannot be maintained.
  • The Court of Criminal Appeal confirmed that while dates in an indictment are ordinarily particularising details only, they can in some circumstances reveal that a conviction is not maintainable in law or disclose a latent duplicity.
  • A Crown concession on a ground of conviction appeal does not end the matter: the court must still proceed to resentence on the remaining counts where the quashing of one conviction disturbs the cumulation structure of the overall sentence.
  • Upholding individual sentences while adjusting their sequencing can be an appropriate response to resentencing where the overall structure of the original sentence is distorted only by the removal of a single count.
  • Under the principle in Pearce v The Queen (1998) 72 ALJR 146, individual sentences must reflect individual crimes even when a court is also having regard to the totality of the sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 78Q, 79, 81
- Crimes (Amendment) Act 1984 (NSW)
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Stringer [2000] NSWCCA 213
- Page (CCA, unreported, 25 November 1991)
- Kailis [1999] WASCA 29
- Thomson and Houlton [2000] NSWCCA 309
- Holyoak (1995) 82 A Crim R 502
- Yates [1985] VR 43
- Pearce v The Queen (1998) 72 ALJR 146