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Court of Criminal Appeal 13 March 2002

Regina v AEM Snr; Regina v KEM; Regina v MM

[2002] NSWCCA 58

Sexual offences
CROWN APPEAL SENTENCE AGGRAVATED SEXUAL ASSAULT PEARCE V THE QUEEN TOTALITY CONCURRENT CUMULATIVE SENTENCES

Citation: Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
Court: New South Wales Court of Criminal Appeal
Date: 13 March 2002
Judge(s): Beazley JA; Wood CJ at CL; Sully J

Background

Three offenders, identified only by initials to protect the identity of victims and juvenile co-accused, pleaded guilty in the District Court to two counts each of aggravated sexual assault (under s 61J of the Crimes Act 1900 (NSW)) arising from offences committed on 5 September 2000 against two 16-year-old female victims. One offender (AEM Snr) was an adult at the time; the other two (KEM and MM) were juveniles. Each offender also had additional charges of the same nature taken into account on a Form 1 basis.

The sentencing judge, Latham DCJ, imposed sentences of approximately six years for AEM Snr and approximately five and a half years for each juvenile, with all counts running concurrently. The Crown appealed each sentence on the ground that they were manifestly inadequate.

The Court of Criminal Appeal heard the three appeals together and ultimately allowed all three, setting aside the original sentences and re-sentencing each offender to significantly longer terms, partially accumulated.

  • Whether the sentencing judge erred in the application of sentencing principles, including the principle from Pearce v The Queen (1998) 194 CLR 610 regarding concurrent and cumulative sentences for multiple offences.
  • Whether the original sentences were manifestly inadequate given the degree of criminality involved.
  • What weight general deterrence and denunciation should carry relative to the youth of the offenders.
  • Whether "special circumstances" existed justifying a departure from the standard proportion between the non-parole period and the head sentence.
  • How the double jeopardy principle, applicable in Crown appeals, should affect the quantum of any re-sentence.
  • Whether partial accumulation of sentences was required to properly reflect the totality of each offender's criminality.
  • Whether the juvenile offenders should serve any portion of their sentences in a Juvenile Justice Centre rather than an adult gaol.

Decision

The Court found that Latham DCJ had erred in applying sentencing principles, particularly in running all counts concurrently without adequate reflection of the discrete nature of each offence. Relying on Pearce v The Queen, the Court held that where offences are separately identifiable, sentences should be at least partially accumulated to ensure the overall sentence properly captures the total criminality involved.

The Court emphasised that the primary objective of sentencing in cases of this nature is the protection of the community, with general deterrence and institutional denunciation taking a prominent role. The youth of the offenders was not treated as a factor that could displace those principles, though it remained relevant in other respects, particularly in assessing rehabilitation prospects and structuring the non-parole period.

On re-sentence, the Court accepted that the double jeopardy principle required it to impose the least sentence that the sentencing judge could have imposed, meaning it did not impose the absolute maximum it might otherwise have considered appropriate. The Court also found special circumstances existed in each case, justifying a lengthened parole period relative to the head sentence, given the offenders' need for extended supervised support upon release.

For the two juvenile offenders, KEM and MM, the Court directed that portions of their sentences be served in a Juvenile Justice Centre after each turned 18, finding that rehabilitation prospects were better served by a period in a juvenile facility before transition to adult custody. Notwithstanding this, each juvenile was found to face a significant period in an adult gaol, approximately eight years for KEM and approximately six years for MM.

Orders Made

AEM Snr:
- Original sentences set aside; convictions confirmed.
- Count 1 (aggravated sexual assault): 11 years imprisonment commencing 7 September 2000, non-parole period of 7 years (eligible for release 6 September 2007).
- Count 2 (aggravated sexual assault, principal offence for Form 1): 11 years imprisonment commencing 7 September 2002, non-parole period of 7 years (eligible for release 6 September 2009).
- Overall effective sentence: 13 years, with an overall non-parole period of 9 years.

KEM:
- Original sentences set aside; convictions confirmed.
- Count 2 (aggravated sexual assault): 10 years imprisonment commencing 7 September 2000, non-parole period of 6 years (eligible for release 6 September 2006).
- Count 1 (aggravated sexual assault, principal offence for Form 1 offences): 12 years imprisonment commencing 7 September 2002, non-parole period of 8 years (eligible for release 6 September 2010).
- Overall effective sentence: 14 years, with an overall non-parole period of 10 years.
- Directed to serve his sentence in a Juvenile Justice Centre until 20 November 2002 (age 19).

MM:
- Original sentences set aside; convictions confirmed.
- Count 1 (aggravated sexual assault): 10 years imprisonment commencing 7 September 2000, non-parole period of 7 years (expiring 6 September 2007).
- Count 2 (aggravated sexual assault, principal offence for Form 1 offences): 11 years imprisonment commencing 7 September 2002, non-parole period of 8 years (expiring 6 September 2010).
- Directed to serve his sentence in a Juvenile Justice Centre until 16 June 2004 (age 20).

Key Takeaways

  • The Court of Criminal Appeal confirmed that concurrent sentencing for multiple, discrete sexual offences will not automatically satisfy the Pearce v The Queen principle: partial accumulation may be required where separately identifiable offences would otherwise be swallowed by the head sentence.
  • General deterrence and community protection occupy a primary role in sentencing for serious sexual offences, and the youth of offenders does not displace that prominence, even where co-offenders are juveniles.
  • A Crown appeal requires the appellate court to apply the double jeopardy principle, limiting re-sentencing to the least sentence the original court could have properly imposed, not the maximum the appellate court might itself have chosen.
  • Special circumstances may justify extending the parole period beyond the standard proportion where an offender, particularly a young person, requires extended supervision and rehabilitative support upon release.
  • Where juvenile offenders are sentenced to terms extending beyond their eighteenth birthday, a direction that part of the sentence be served in a Juvenile Justice Centre remains available and may be appropriate where evidence supports better rehabilitation outcomes in that environment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44
- Children (Criminal Proceedings) Act 1987 (NSW), s 11

Key Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Kalache (2000) 111 A Crim R 152
- R v Clarke [2001] NSWCCA 223
- R v Holder and Johnson [1983] 3 NSWLR 245
- R v WKR (1993) 32 NSWLR 447
- R v Visconti [1982] 2 NSWLR 104
- R v Lemene (2001) 118 A Crim R 131
- R v Hammoud (2000) 118 A Crim R 66
- R v Simpson [2001] NSWCCA 534
- R v GDR (1994) 35 NSWLR 376
- R v Wong; R v Leung (1999) 48 NSWLR 340
- Griffiths v R (1971) 137 CLR 293
- Power v The Queen (1973) 131 CLR 623
- Various other unreported NSWCCA decisions on pattern of sentencing for sexual assault