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Court of Criminal Appeal 17 October 2001

Regina v Whaites

[2001] NSWCCA 426

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE TOTALITY

Citation: Regina v Whaites [2001] NSWCCA 426
Court: NSW Court of Criminal Appeal
Date: 17 October 2001
Judges: Wood CJ at CL, Grove J

Background

The appellant was charged in New South Wales with threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, arising from an incident in September 1987. The offending involved driving a foreign tourist to an isolated location in the Royal National Park, attempting to force sexual activity, producing a knife, and assaulting her when she resisted.

After being charged and held in custody briefly, the appellant failed to appear for his trial in 1989 and fled interstate. In Western Australia and then South Australia he committed further serious offences. In South Australia he pleaded guilty to rape and was sentenced in 1990 to nine years with a five-year non-parole period. During that sentence he also escaped from custody, receiving an additional eighteen months. He was not located and returned to NSW until January 2000, some thirteen years after the original offence.

The appellant pleaded guilty before the District Court, where the Chief Judge of the District Court (Blanch DCJ) sentenced him to a minimum term of four years and ten months with an additional term of two years. The appellant sought leave to appeal on the grounds that insufficient discount was given for the guilty plea and that the principles of totality were not properly applied.

  • Whether the District Court adequately discounted the sentence to reflect the appellant's guilty plea, including its utilitarian value
  • Whether the sentencing judge properly applied the totality principle when assessing the combined effect of the NSW sentence alongside the prior interstate sentences for rape and escape
  • Whether, having regard to time served in South Australia and the appellant's subsequent conduct after release, the overall sentence was excessive

Decision

The Court of Criminal Appeal accepted that Blanch DCJ was aware of the Todd principle, which requires courts sentencing for a stale offence to give weight to an offender's rehabilitation, the uncertainty of prolonged suspension awaiting sentence, and the need for flexibility and leniency when a significant period has passed. However, the Court concluded that, when all factors were properly weighed together, the sentence imposed was excessive.

Grove J assessed the totality of the appellant's offending across three offences: the NSW charge, the South Australian rape, and the South Australian escape. Translated into combined terms, the notional sentence produced a head term of seventeen years and a non-parole period of around eleven and a half years. The Court considered this an unfairly onerous outcome given the full picture.

Two matters supported reducing the sentence further on resentencing. First, the appellant was entitled to a proper discount for his guilty plea, reinforced by the Court's guidance in R v Thomson (decided after the original sentencing). Second, following his release in South Australia, the appellant had not reoffended at anything approaching the seriousness of his earlier conduct, and a psychiatric report indicated that treatment of a diagnosed condition could reduce his risk to the community.

The Court granted leave to appeal, allowed the appeal, and resentenced the appellant to five years' imprisonment commencing 8 January 2000, with a non-parole period of two years and ten months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to five years' imprisonment, commencing 8 January 2000 and expiring 7 January 2005
  • Non-parole period of two years and ten months, commencing 8 January 2000 and expiring 7 November 2002
  • 7 November 2002 specified as the date of eligibility for parole

Key Takeaways

  • Where a lengthy delay between offence and sentencing results from an offender absconding and serving interstate sentences, the principles in R v Todd require courts to approach sentence with considerable flexibility, giving meaningful weight to rehabilitation, the uncertainty experienced by the offender, and basic fairness.
  • Totality must account for all connected sentences across jurisdictions. The Court of Criminal Appeal assessed the combined NSW and South Australian sentences together, including the escape conviction, rather than treating each in isolation.
  • A guilty plea must receive a genuine, identifiable discount. The Court found that the original sentence did not adequately reflect this, particularly in light of R v Thomson, which clarified the utilitarian value of a plea.
  • Post-release conduct, though not entirely crime-free, can be a relevant mitigating consideration where nothing approaching the seriousness of the original offending has recurred.
  • Psychiatric evidence going to risk and treatability remains a relevant factor at sentencing, even for serious historical offending.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 61C(1)(b) (as it then stood)

Cases
- R v Todd (1982) 2 NSWLR 517
- R v Thomson (2000) 49 NSWLR 383