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Court of Criminal Appeal 6 August 2001

R v AJC

[2001] NSWCCA 388

Sexual offences
APPEAL AGAINST SEVERITY OF SENTENCE SEXUAL ASSAULT INDECENT ASSAULT UNLAWFUL ENTRY ONTO PREMISES REHABILITATION

Citation: R v AJC [2001] NSWCCA 388
Court: Court of Criminal Appeal, New South Wales
Date: 6 August 2001
Judge(s): Dowd J; Smart AJ

Background

The applicant, a 54-year-old man, pleaded guilty in the Sydney District Court to multiple charges of child sexual abuse. The offences spanned several decades and involved three child victims: his natural daughter, his son, and his stepdaughter. Two additional matters were taken into account on a Form 1, including an act of indecency against a young friend of his stepdaughter and an unlawful entry onto premises.

The District Court sentenced the applicant to a series of cumulative and concurrent terms of imprisonment totalling approximately 40 months, with a non-parole period of 36 months. That ratio meant the applicant would serve nine-tenths of his total sentence before becoming eligible for parole, leaving only a four-month parole period.

The applicant sought leave to appeal against the severity of those sentences, arguing in particular that the sentencing judge failed to allow a sufficient parole period to accommodate supervision and rehabilitation.

  • Whether the sentencing judge's discretion miscarried by failing to set an appropriate ratio between the total sentence and the non-parole period
  • Whether the judge failed to give proper consideration to factors amounting to "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, particularly the applicant's rehabilitation prospects, the fact that this was his first custodial sentence, and the effect of accumulated sentences
  • Whether the accumulation of sentences produced a non-parole period so disproportionate to the overall term as to frustrate meaningful post-release supervision and rehabilitation

Decision

The Court of Criminal Appeal granted leave to appeal and dismissed the majority of the appeals, upholding all the individual sentences imposed by the District Court. The Court confirmed that there is no statutory requirement for a fixed ratio between the non-parole period and the head sentence, and that a sentencing court need only make a finding of "special circumstances" when departing below the statutory minimum of three-quarters of the full term.

On the four concurrent sentences of 16 months for indecent assault, however, the Court found that the sentencing judge had erred. When those sentences were accumulated on top of the earlier sentences, the resulting overall non-parole period was so long relative to the total term that it effectively eliminated any meaningful period for supervised rehabilitation. The Court identified evidence before the sentencing judge of a compelling need for supervised rehabilitation, and held that the accumulation of sentences required closer attention to achieving a suitable parole period.

Rather than altering the head sentences, the Court varied only the non-parole periods on those four concurrent sentences. The non-parole period on each was reduced from 12 months to 6 months, commencing 10 November 2002, to create a parole period of 10 months. The Court acknowledged this period was inadequate for full rehabilitation but considered that extending it further would fail to reflect the seriousness of the offending through an unduly short period in custody.

Smart AJ agreed with the orders and emphasised that had the matter been considered from scratch, a longer head sentence with a correspondingly longer non-parole period might have been appropriate. The absence of a Crown cross-appeal constrained the Court's ability to restructure the sentences more broadly.

Orders Made

  • Leave to appeal granted
  • Appeal against the 15-month sentence on Count 6 (aggravated act of indecency, including Form 1 offences), commencing 10 November 2000, dismissed
  • Appeal against the 9-month sentence for aggravated act of indecency, commencing 10 November 2000, dismissed
  • Appeal against the 9-month sentence for an act of indecency, commencing 10 February 2002, dismissed
  • Appeal against the four concurrent 16-month sentences for indecent assault allowed in part: head sentence of 16 months upheld; non-parole period on each of the four sentences varied from 12 months to 6 months, commencing 10 November 2002 and expiring 9 May 2003

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999, a court is not required to find "special circumstances" as a precondition to all sentencing decisions; the requirement only arises when the court departs below the statutory minimum of three-quarters of the full term for the non-parole period.
  • No fixed statutory ratio applies between a non-parole period and a head sentence, as confirmed by this Court in R v GDR (1994) 35 NSWLR 376 and reiterated here.
  • Where sentences are accumulated, a sentencing court must take care to ensure the cumulative effect produces a non-parole period that still allows for a meaningful period of supervised parole, particularly where rehabilitation evidence is before the court.
  • In dismissing the bulk of the appeal, the Court preserved all head sentences and the majority of individual non-parole periods, intervening only where the accumulated structure effectively eliminated a workable supervision period.
  • The absence of a Crown cross-appeal limited the Court of Criminal Appeal's ability to restructure the overall sentencing regime, even where both judges acknowledged a longer head sentence with a longer non-parole period might otherwise have been warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(1), 76, 81A, 96
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2)
- Enclosed Lands Protection Act 1901 (NSW)
- Justices Act 1902 (NSW), s 51A

Cases:
- R v GDR (1994) 35 NSWLR 376