Citation: R v Anderson [2002] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 14 June 2002
Judge(s): Spigelman CJ, Adams J, Blanch AJ
Background
The respondent, a prison inmate serving lengthy sentences for serious violence offences, escaped from Grafton Correctional Centre with a co-offender in early March 2001. Over the following two days, the pair abducted a 50-year-old woman at Sawtell Beach, detained her for several hours, subjected her to repeated sexual assaults and threats, and forced her to hand over cash from her wallet and an ATM.
The respondent was subsequently charged with a range of offences including escape from lawful custody, stealing a motor vehicle, kidnapping, two counts of aggravated robbery, and two counts of aggravated sexual intercourse (one involving repeated rape on the boot of a car, the other during a high-speed drive along a bush track). He pleaded guilty to all charges.
At first instance, Bellear DCJ in the District Court imposed a series of sentences, with the sexual assault sentences commencing concurrently with each other in October 2002. The Crown appealed, arguing the overall sentencing structure was manifestly inadequate, particularly in how the sentences for the two sexual assault offences were accumulated.
Legal Issues
- Whether the sentences imposed were manifestly inadequate in all the circumstances
- Whether the sentencing judge gave adequate weight to the principle of totality
- Whether the method of accumulation adopted for the sexual assault sentences was appropriate, given that the offences were separated in time and location
- Whether the effective sentences, once the respondent's pre-existing non-parole period was factored in, adequately reflected the gravity of the conduct
Decision
The Court of Criminal Appeal allowed the Crown appeal, focusing principally on the accumulation structure for the two aggravated sexual assault offences. Spigelman CJ found that the sentencing judge had made the two sexual assault sentences concurrent with each other, commencing at the same date. This was, in the Court's view, an error: the two offences were separated in time and location, and the earlier incident was more serious, involving multiple acts in company with threats to the victim's life. They warranted at least partial accumulation.
A further issue arose from the way sentences were anchored to the expiration of the respondent's existing minimum term. Spigelman CJ observed that, given the respondent's history and circumstances, it was inconceivable he would have been released on parole at the expiration of that minimum term. By commencing sentences from that date rather than the end of the full term actually being served, the effective length of several sentences was substantially reduced, by the Chief Justice's reckoning by approximately two and a half years.
The Court confirmed it would not disturb the sentences for stealing a motor vehicle, kidnapping, or aggravated robbery, noting the Crown did not press for those to be altered. However, the sentences for both aggravated sexual assault charges and the escape from lawful custody were quashed and replaced. The restructured sentences made the second and more serious sexual assault sentence commence two years after the first, reflecting genuine partial accumulation and better capturing the overall criminality involved.
Special circumstances were found to exist, justifying variation of the statutory ratio between the non-parole period and the total sentence. The Court noted that release to parole would depend on the respondent demonstrating future conduct very different from his past.
Orders Made
- Sentences for stealing a motor vehicle, kidnapping, and aggravated robbery (two counts) affirmed
- Sentences for both aggravated sexual assault charges and escape from lawful custody quashed
- For aggravated sexual intercourse in the moving vehicle: fixed term of six years commencing 18 October 2002, expiring 17 October 2008
- For aggravated sexual intercourse on the boot of the car (repeated rapes): head sentence of eleven years commencing 18 October 2004, expiring 17 October 2015, with a non-parole period of six years commencing 18 October 2004 and expiring 17 October 2010
- For escape from lawful custody: fixed term of two years commencing 18 October 2010, expiring 17 October 2012
- Trial judge's conditions for release to parole affirmed
Key Takeaways
- Where multiple serious offences are separated in time and location, concurrent sentences may fail to reflect the true gravity of the overall criminality, and at least partial accumulation may be required.
- The Court of Criminal Appeal confirmed that a sentencing court must have regard to the sentence a respondent will actually serve, not merely the nominal commencement date; structuring sentences from a minimum term that was never likely to result in parole can produce an effectively inadequate outcome.
- In dismissing the challenge to the kidnapping, robbery, and motor vehicle sentences, the Court signalled that its intervention was targeted and did not extend beyond the identified error in accumulation.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (which allows adjustment of the statutory non-parole ratio) may be found where the nature of the offending and the offender's history make early parole a remote prospect, requiring a longer additional term to provide meaningful supervision if release does eventually occur.
- Crown appeals against leniency remain subject to the double jeopardy principle and the totality principle, both of which bear on the extent to which a higher court will resentence upwards.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 90A, 95(1), 154AA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 57
Cases:
- R v AEM [2002] NSWCCA 58
- Veen v The Queen (No 2) (1998) 164 CLR 465