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Court of Criminal Appeal 24 November 2000

Regina v P.A.M.

[2000] NSWCCA 494

Sexual offences
SENTENCING SEVERITY APPEAL PAROLE PERIOD.

Citation: Regina v P.A.M. [2000] NSWCCA 494
Court: Court of Criminal Appeal, New South Wales
Date: 24 November 2000
Judge(s): Carruthers AJ; Barr J

Background

The applicant pleaded guilty in the Armidale District Court to seven counts of serious sexual offences against young children, committed between December 1994 and December 1998. The offences included aggravated acts of indecency, aggravated indecent assault, and using children for pornographic purposes. The victims were multiple young girls, the youngest of whom was approximately one year old at the time of the offending.

The applicant had a prior conviction from 1988 for similar offences involving a child under 16, for which he had received a five-year sentence with a non-parole period of two and a half years. He was released to parole in 1990 and remained free of similar charges for approximately four and a half years before the subject offending commenced.

At sentence, Kirkham DCJ imposed concurrent terms totalling seven years imprisonment but declined to fix a non-parole period for any of the sentences. The practical effect was that the applicant would serve the full seven years with no prospect of parole and would be released directly into the community without any supervision. The applicant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge erred in principle by declining to set a non-parole period for sentences of this length
  • Whether the absence of a non-parole period was justified by the reasons given, or whether those reasons were confusing and contradictory
  • What the appropriate balance was between the subjective factors favouring the applicant and the objective seriousness of the offending and the community's interest in post-release supervision

Decision

The Court of Criminal Appeal found that Kirkham DCJ had erred in declining to fix a non-parole period. Carruthers AJ noted that for sentences of this length, the circumstances that would justify not fixing a non-parole period would need to be compelling. While he acknowledged that such circumstances can exist in theory, the reasons offered by the sentencing judge were found to be confusing and contradictory, and the case did not meet that threshold.

The Court emphasised that the community has a legitimate interest in proper supervision of an offender upon release from a lengthy custodial sentence. Releasing the applicant directly from a seven-year term with no post-release supervision was inconsistent with that interest, given the nature and history of his offending.

Correcting the error necessarily meant that the actual time to be served in custody would be reduced, since the addition of a parole period required a corresponding reduction in the non-parole component. The Court accepted this consequence as unavoidable and fixed a parole period of one year. The result was that the applicant would serve a minimum of six years, described by Carruthers AJ as "a very long period of time to serve in protective custody."

Orders Made

  • Leave to appeal granted and appeal upheld
  • Sentences on counts 1 and 4 to 8 (inclusive) confirmed as imposed by Kirkham DCJ
  • Sentences on counts 2 and 3 set aside and replaced with a seven-year term of imprisonment commencing 7 April 2000 and expiring 6 April 2007
  • Non-parole period of six years fixed, making the applicant eligible to apply for release to parole on 6 April 2006

Key Takeaways

  • For sentences of significant length, it will be a very rare case in which a non-parole period is not fixed; compelling reasons are required to justify that course.
  • The Court of Criminal Appeal confirmed that the community has a recognised interest in the supervision of an offender following release from lengthy imprisonment, particularly where the offending is of a serious and repetitive nature.
  • A sentencing judge's reasons for declining to fix a non-parole period must be coherent and defensible; reasons found to be confusing and contradictory will not withstand appellate scrutiny.
  • Correcting an error of this kind on appeal necessarily reduces the minimum time actually served in custody, because introducing a parole period compresses the non-parole component of an otherwise fixed head sentence.
  • Prior offending of a similar nature, combined with reoffending after release, bore on the Court's assessment of the appropriateness of post-release supervision rather than on whether to extend the head sentence beyond the term already imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 91G(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309
- Veen v The Queen (No 2) (1988) 164 CLR 465