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6
Court of Criminal Appeal 24 July 2002

Regina v Kay

[2002] NSWCCA 286

Also reported as (2002) 132 A Crim R 72
Sexual offences
SENTENCING APPEAL AGAINST SENTENCE

Citation: Regina v Kay [2002] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 24 July 2002
Judge(s): Sheller JA, Dowd J, Carruthers AJ

Background

The applicant pleaded guilty in the Central Criminal Court to four counts of aggravated sexual assault under s 61J of the Crimes Act 1900, each carrying a maximum of 20 years imprisonment. The aggravation in each count was the use of a knife to threaten the victim with actual bodily harm. All offences were committed against women at night in lower north shore suburbs of Sydney between December 1995 and December 1996.

In addition to the four indictment counts, the sentencing judge (Hulme J) was asked to take into account four related sexual offences listed on a Form 1 document. Two of those Form 1 offences were also under s 61J, and the remaining two were offences of threatening to inflict actual bodily harm with intent to have sexual intercourse under s 61K, which also carries a maximum of 20 years.

Hulme J sentenced the applicant to a total effective head sentence of 20 years, with a non-parole period of 10 and a half years on the third and most serious count. The applicant sought leave to appeal, challenging the manner in which the Form 1 offences were taken into account, the discount applied for the guilty pleas, the approach to special circumstances, and whether the sentences were warranted in law despite any identified errors.

  • Whether Hulme J applied the correct principles when taking the Form 1 offences into account at sentencing
  • Whether the discount granted for the utilitarian benefit of the guilty pleas was calculated correctly
  • Whether the determination of special circumstances (which affects the ratio between the non-parole period and the total sentence) was approached correctly
  • Whether, despite any errors of law, the sentences imposed were nonetheless warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Carruthers AJ (with whom Sheller JA and Dowd J agreed) found that errors had been established in relation to some of the grounds, including in the manner Hulme J assessed the allowance for the Form 1 offences and in aspects of the approach to special circumstances.

On the Form 1 issues, the Court found that while Hulme J had applied wrong principles in assessing the appropriate allowance for the Form 1 offences, that error had not produced an excessive aggregate head sentence. When the objective and subjective circumstances were properly weighed and correct principles applied, the overall sentence of 20 years remained warranted.

On special circumstances, the Court confirmed that the relevant question is the time a prisoner must remain in confinement, not the length of time the paroling authority has to supervise the offender after release. The applicant's submission that a longer parole period was needed to address his anti-social tendencies could not be reconciled with this principle, nor with the further constraint that the non-parole period must itself appropriately reflect the criminality of the offences. The Court declined to disturb the non-parole period of 10 and a half years.

On the guilty plea discount, the Court examined the correct approach to calculating the utilitarian benefit of pleas of guilty, drawing on the principles discussed in R v Thomson and Houlton. Ultimately, the identified errors did not justify interference with the sentences, and the Court was satisfied that the penalties imposed by Hulme J demanded by a proper application of sentencing law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that errors in the treatment of Form 1 offences at sentencing do not necessarily warrant interference with the overall sentence if the aggregate head sentence remains within the range demanded by correct principles.
  • A non-parole period must reflect the time during which the offender must remain in confinement, not the period available for supervision by probation and parole authorities after release. Arguments for special circumstances based on the need for extended post-release supervision are inconsistent with this principle.
  • The non-parole period carries its own constraint: it must appropriately reflect the criminality involved in the offence, and cannot be reduced merely to extend the parole supervision period.
  • Under s 6(3) of the Criminal Appeal Act 1912, a court may decline to intervene even where legal errors are established at first instance, if no lesser sentence is warranted in law on a proper application of correct principles to the facts.
  • In dismissing the appeal, the Court discussed the correct approach to calculating guilty plea discounts for utilitarian benefit, affirming the framework established in R v Thomson and Houlton (2000) 49 NSWLR 383.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61K
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 48
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Power v The Queen (1973) 131 CLR 623
- R v Simpson [2001] NSWCCA 534
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 103 A Crim R 372
- R v Ellis (1986) 6 NSWLR 603
- R v Kalache [2000] NSWCCA 2
- R v Sharma [2002] NSWCCA 142
- R v Harris [2001] NSWCCA 322
- R v AEM Snr & Ors [2002] NSWCCA 58
- Director of Public Prosecutions v Ottewell [1970] AC 642
- R v Dawson (unreported, CCA, 19 May 1998)
- R v Winchester (1992) 50 A Crim R 345
- R v Radich [1954] NZLR 86
- R v Stabler (1984) 6 Cr App R (S) 129
- R v Costen (1989) 11 Cr App R (S) 182