Citation: R v Hanslow [2002] NSWCCA 161
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2002
Judge(s): Kirby J; Smart AJ
Background
The appellant was convicted in 1999 of two sexual offences committed in late 1989, when he was sixteen years old. The offences involved an assault on a nine-year-old girl with intent to have sexual intercourse, and a separate act of indecency on the same girl on the same occasion. Trial took place approximately ten years after the offences occurred.
Gibson DCJ sentenced the appellant to a fixed term of two and a half years' periodic detention on the first count, and nine months' periodic detention on the second count. Periodic detention is a form of custody served on a part-time basis at a detention centre, rather than continuously in a full-time prison.
The appellant struggled significantly with his periodic detention obligations. He was assaulted and harassed by other inmates after they learned of the nature of his offences, and he and his family faced community harassment. He eventually ceased attending. In May 2001, he was arrested for serious driving offences, which brought his non-attendance to light. The Parole Board revoked the periodic detention order and fixed the remaining balance of his sentence to be served in full-time custody. He then sought leave to appeal against the original sentence, also seeking an extension of time in which to bring the appeal.
Legal Issues
- Whether the sentencing judge erred by failing to fix a minimum term and an additional term in addition to the fixed terms imposed.
- Whether the sentencing judge erred by failing to give reasons for not fixing a minimum term.
- Whether, in the alternative, the sentences imposed were manifestly excessive having regard to the circumstances of the offending and the appellant's age at the time.
- Whether the sentencing judge applied the correct statutory approach to periodic detention, given legislative amendments that took effect in February 1999, a few months before sentencing occurred in May 1999.
Decision
Legislative error in sentencing approach: Kirby J concluded that the sentencing judge had, as a matter of inference, applied the pre-February 1999 sentencing practice rather than the amended legislative regime. Under the old approach, courts sometimes extended the length of a periodic detention sentence to compensate for its perceived leniency compared to full-time custody. The amendments introduced from 1 February 1999 required a strict two-stage process: first, fix an appropriate term of imprisonment; then, separately, consider whether that term should be served by periodic detention. The sentencing remarks suggested the judge had not applied that two-stage process, and had instead telescoped the two considerations together.
Manifest excess: Smart AJ (with whom Kirby J agreed) identified the sentence of two and a half years as manifestly excessive. His Honour cited the appellant's juvenile age at the time of the offences, the probability that the Children's Court would not have imposed imprisonment, the real prejudice suffered by the appellant through the decade-long delay in prosecution (which denied him access to the less punitive Children's Court regime), the absence of any subsequent sexual offending, and the fact that the attempt at intercourse was not completed. The nine-month sentence on the second count was also found to be manifestly excessive, described as an impulsive act by a sixteen-year-old that would not have attracted a custodial sentence in the Children's Court.
Re-sentencing: The Court re-sentenced the appellant on both counts. Kirby J considered that the time already served by the appellant, whether by periodic detention or full-time custody, was adequate to reflect the criminality involved. The first count was re-sentenced to a fixed term running from 13 May 2001 to 7 May 2002 (the date of the appeal). The second count was re-sentenced to a concurrent fixed term of one month.
Orders Made
- Leave to appeal out of time granted.
- Leave to appeal against sentence granted.
- Appeal allowed.
- The sentence imposed by Gibson DCJ, as amended by the Parole Board, quashed.
- Count 1: re-sentenced to a fixed term commencing 13 May 2001 and expiring 7 May 2002.
- Count 2: re-sentenced to a concurrent fixed term of one month, commencing 13 May 2001 and expiring 12 June 2001.
Key Takeaways
- The 1998 amendments to the Periodic Detention of Prisoners Act 1981, operative from 1 February 1999, required sentencing courts to adopt a strict two-stage approach: determining an appropriate term of imprisonment first, then separately considering whether periodic detention was appropriate. Collapsing those two steps, or extending the term to compensate for the leniency of periodic detention, became an error of law after that date.
- Significant delay between the commission of offences and prosecution can constitute a mitigating factor, particularly where the delay deprives an offender of the opportunity to be dealt with under a less punitive regime such as the Children's Court.
- Juvenile age at the time of offending remains a highly relevant consideration in sentencing even where the trial and sentence occur in adulthood; the Court of Criminal Appeal treated the appellant's age of sixteen at the time of the offences as a substantial mitigating factor.
- Where a periodic detention order has been revoked by the Parole Board and the balance converted to full-time custody, the Court of Criminal Appeal retains jurisdiction to quash that amended sentence and re-sentence, including on counts whose Parole Board-fixed terms have already expired.
- In re-sentencing, time already served under periodic detention and full-time custody may, in appropriate circumstances, be treated as sufficient to reflect the total criminality involved, resulting in a term that effectively expires on the day of the re-sentencing hearing.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated