Citation: Regina v Smallbon [2002] NSWCCA 37
Court: New South Wales Court of Criminal Appeal
Date: 14 March 2002
Judges: Hidden J; Buddin J
Background
The applicant pleaded guilty in the District Court to eleven counts arising from two separate but closely connected incidents. Both incidents involved the abduction and sexual assault of young male victims, aged sixteen and fourteen respectively. In each case, the applicant used a knife to force the victim into his vehicle before subjecting him to a series of indecent assaults and physical violence.
The second incident occurred on 28 September 1998, only thirteen days after the applicant had been granted bail by the Court of Criminal Appeal following his arrest for the first incident. The sentencing judge in the District Court noted the obvious parallel between the two incidents.
In 1999, his Honour O'Reilly DCJ sentenced the applicant under the then-current Sentencing Act 1989, imposing concurrent sentences on all charges. The effective total sentence was eight years, with a minimum term of five years and an additional term of three years. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the effective total sentence of eight years was manifestly excessive given the objective seriousness of the offences and the applicant's subjective circumstances.
- Whether the sentencing judge erred by failing to make express allowance for a period of presentence custody (approximately two and a half months) served following arrest for the first incident.
- Whether the minimum term (non-parole period) was set too high, having regard to potential special circumstances including the applicant's likely need for strict protection in custody, and uncertainty about the prison system's capacity to provide appropriate treatment and counselling.
Decision
The Court of Criminal Appeal found that the overall sentence of eight years was not manifestly excessive. Hidden J noted that the offences were objectively grave, involving multiple serious sexual and physical assaults against two vulnerable young victims, compounded by the fact that the second incident occurred almost immediately after the applicant was granted bail. His Honour concluded that no combination of objective and subjective factors could have justified a lighter effective sentence, and remarked that the applicant was fortunate all sentences were made concurrent.
However, the Court identified two specific errors. First, the sentencing judge made no express allowance for the period of approximately two and a half months that the applicant spent in custody between his arrest for the first incident and the grant of bail. The Court of Criminal Appeal restated, following R v Pyrda, that courts must recognise presentence custody, whether by backdating or by reducing the sentence. The appropriate remedy here was to reduce the effective sentence by three months.
Second, the Court held that the sentencing judge, while finding special circumstances based on the applicant's need for extended supervision on release, failed to account for two further relevant matters: the likelihood that the applicant would serve his sentence in strict protection (a more onerous custodial environment), and expert reservations about the prison system's ability to provide him with necessary treatment and counselling. Both factors were capable of constituting special circumstances, warranting a further reduction of nine months to the effective minimum term.
Orders Made
- Leave to appeal granted; appeal allowed.
- Sentences on the two kidnapping counts (counts 1 and 6) quashed and replaced.
- On each kidnapping count: imprisonment for 7 years and 9 months, commencing 28 September 1998, with a non-parole period of 4 years and 3 months (re-sentenced under the Crimes (Sentencing Procedure) Act 1999).
- Sentences on all remaining counts confirmed.
- Applicant eligible for release on parole on 28 December 2002.
Key Takeaways
- An overall sentence of eight years for two incidents of kidnapping accompanied by multiple sexual assaults and physical violence against young victims was not manifestly excessive, particularly where the second offence was committed only days after the applicant was released on bail.
- A sentencing court's failure to make express allowance for presentence custody constitutes an error requiring correction, either by backdating or by reducing the sentence accordingly, consistent with the principle restated in R v Pyrda.
- Where an offender is likely to serve their sentence in strict protection, that circumstance can constitute "special circumstances" justifying a longer additional term (or reduced non-parole period) relative to the total sentence.
- Expert evidence raising doubts about the prison system's capacity to deliver treatment and rehabilitation to an offender is also capable of amounting to special circumstances, and a sentencing court should address such evidence when structuring the sentence.
- In re-sentencing under fresh legislation following a successful appeal, the Court of Criminal Appeal applied the Crimes (Sentencing Procedure) Act 1999 rather than the Sentencing Act 1989 under which the original sentence had been imposed.
Legislation and Cases Referenced
Legislation
- Sentencing Act 1989 (NSW)
- Crimes Act 1900 (NSW), ss 59, 61L, 61N(1), 61N(2), 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Engert (1995) 84 A Crim R 67
- R v Pyrda [2001] NSWCCA 230
- R v Simpson [2001] NSWCCA 534