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Court of Criminal Appeal 30 August 2001

Regina v MJK

[2001] NSWCCA 325

Sexual offences
SENTENCING SERIES OF SEXUAL OFFENCES APPLICATION OF PRINCIPLES OF TOTALITY

Citation: Regina v MJK [2001] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 30 August 2001
Judge(s): Smart AJ; Dowd J

Background

The applicant was convicted in the District Court of multiple serious sexual offences committed between August 1998 and August 1999, involving four separate victims. The victims included two teenage girls, a teenage boy, and a severely intellectually disabled woman. The offending included sexual intercourse with minors, homosexual intercourse with a 14-year-old boy who had been plied with alcohol, and aggravated sexual assault of a profoundly disabled resident at a disability care facility. Several of the offences were committed after the applicant made contact with victims through internet chat programmes.

The applicant was also convicted on a fifth count relating to publishing and possessing child pornography, after examination of his computers and home materials revealed he had been actively trading child pornography online. The District Court sentenced him to fully accumulated fixed terms on counts 1 to 4, producing a total sentence of 16 years 9 months, with an additional 2-year fixed term on the pornography count running partly concurrently.

The applicant sought leave to appeal against those sentences, contending that the total was excessive having regard to the totality principle, which requires a sentencing court to stand back and assess whether the overall sentence is proportionate to the totality of the offending.

  • Whether the District Court's approach of fully accumulating each sentence resulted in a total that was excessive when the principle of totality was applied
  • What adjustments, if any, were warranted to the individual sentences to produce an appropriate overall term
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence

Decision

Smart AJ accepted that fully accumulating all sentences on counts 1 to 4 produced an aggregate of 15 years 9 months (excluding count 5), and that this total was excessive once the principle of totality was applied. The totality principle requires a court, after calculating the raw sum of sentences for multiple offences, to assess whether the overall period of imprisonment is a just and appropriate reflection of the total criminality. Where it is not, adjustments are made, commonly by ordering some sentences to run concurrently rather than wholly consecutively.

Smart AJ found that a total custodial term of 14 years (excluding count 5) was appropriate, to be achieved by making two of the sentences on counts 1 to 4 partially concurrent. The sentence on count 5 was not disturbed. This required quashing the sentence originally imposed on count 4 and resentencing on that count alone, with the sentences on counts 1 to 3 and 5 left intact.

On the question of special circumstances, the Court accepted that the accumulation of sentences, the need for extended post-release supervision to address the applicant's sexual disorder, and the fact that this was his first custodial sentence could constitute special circumstances. However, given the gravity of the overall criminality, the non-parole period was set at 11 years, with a supervision period of 3 years following release, which the Court considered sufficient to meet the expert recommendation for lengthy supervision.

Orders Made

  • Leave to appeal granted
  • Appeals against sentences of 2 years 3 months fixed term on each of counts 1, 2, and 3 (running consecutively from 26 August 1999 to 25 May 2006) dismissed
  • Appeal against the 2-year fixed term on count 5 dismissed
  • Appeal against sentence on count 4 allowed; original sentence quashed
  • In substitution on count 4: imprisonment for 9 years commencing 26 August 2004, with a non-parole period of 6 years commencing that day and ending 25 August 2010

Key Takeaways

  • The totality principle requires a sentencing court to assess whether the aggregate of fully accumulated sentences produces a total that is disproportionate to the overall criminality, and to adjust where necessary, typically by making some sentences partially concurrent.
  • Full accumulation of each sentence in a multi-count matter is not automatically appropriate; even where individual sentences are unimpeachable, the combined effect may require moderation.
  • Special circumstances capable of justifying a longer non-parole period ratio can arise from the accumulation of sentences, the need for extended post-release supervision, and the fact of a first custodial term, though the gravity of the offending remains a significant countervailing consideration.
  • In resentencing on appeal, the Court of Criminal Appeal need not disturb every sentence; it may quash and resentence on a single count while leaving the remainder intact, provided the overall structure achieves the appropriate total.
  • Where expert evidence recommends lengthy supervision following release for a sexual disorder, the sentencing court's duty is to accommodate that need within the sentencing structure, balanced against the seriousness of the offending.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment.