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19
Court of Criminal Appeal 9 July 2003

REGINA v LWP

[2003] NSWCCA 215

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULT PAROLE PERIOD RATIO.

Citation: REGINA v LWP [2003] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 9 July 2003
Judge(s): Spigelman CJ, Bell J, Miles AJ

Background

The respondent pleaded guilty in the District Court to three sexual assault offences committed against his niece and two daughters, all of whom were children at the time. The offences spanned different periods and attracted different maximum penalties under the Crimes Act 1900.

The sentencing judge (Goldring DCJ) found special circumstances, which ordinarily permits a court to reduce the ratio of the non-parole period to the head sentence below the statutory norm of 75 per cent. His Honour reduced that ratio to approximately 66.66 per cent within each individual sentence. However, because the sentences were partially accumulated, the overall effective non-parole period as a proportion of the total effective head sentence remained at around 75 per cent.

The respondent appealed against the sentence structure, arguing that the judge's intended result had not been carried into effect. The Crown opposed any reduction, submitting that the existing effective non-parole period of eight years and six months was appropriate regardless of the structural inconsistency.

  • Whether the sentencing judge had properly taken into account the respondent's particular circumstances of custody (stricter confinement due to the nature of the offences) when finding special circumstances.
  • Whether the partial accumulation of sentences meant the overall sentence structure failed to reflect the judge's intended variation of the statutory non-parole period ratio.
  • Whether, in that scenario, a lesser effective non-parole period was warranted within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had found special circumstances, and that the relevant factors included the respondent's age (62 at sentencing, 70 upon projected release), his ill health, and the circumstances of his confinement. Although his Honour did not explicitly mention the harsher custody conditions in his remarks on sentence, the Court was satisfied he had in fact taken them into account, given the timing of the finding relative to defence submissions on that precise point.

The Court found that the judge's exercise of sentencing discretion had not otherwise miscarried. The individual sentences and the decision to partially accumulate them were not challenged, and the effective sentence and non-parole period were both within an appropriate range. However, a mathematical consequence of the accumulation structure meant the overall ratio did not reflect the judge's stated intention to allow for special circumstances.

Consistent with earlier authority, the Court intervened to give effect to the sentencing judge's intended result. It identified reducing the non-parole period for Count 3 (the most serious offence) as the most appropriate mechanism, leaving the head sentence for that count unchanged and leaving the sentences for Counts 1 and 2 undisturbed.

The Court was satisfied that a lesser non-parole period was warranted under s 6(3) of the Criminal Appeal Act 1912, noting that test applied even where the issue concerned an effective sentence arising from partial accumulation rather than a single individual sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentences imposed on Counts 1 and 2 affirmed.
  • Sentence imposed on Count 3 quashed.
  • Sentence for Count 3 substituted: head sentence of nine years commencing 15 December 2003, with a non-parole period of five years (reduced from six years) commencing 15 December 2003 and expiring 14 December 2008.
  • Order made under s 292 of the Criminal Procedure Act 1986 prohibiting publication of any material identifying the victims.

Key Takeaways

  • A finding of special circumstances must be given practical effect across the overall sentence structure, not merely within each individual sentence in isolation. Partial accumulation can inadvertently negate the intended variation of the non-parole period ratio.
  • The Court of Criminal Appeal confirmed its jurisdiction to intervene and correct a sentencing structure where a mathematical consequence of accumulation has undermined a judge's clearly stated intention, even where no other error in the exercise of discretion is established.
  • Stricter custodial conditions arising from the nature of an offence can constitute a relevant factor in finding special circumstances. Failure to mention such a factor expressly in remarks on sentence does not necessarily indicate it was overlooked.
  • In correcting a structural error of this kind, the Court may select the least invasive mechanism, which in this case meant reducing the non-parole period on the most serious count alone, leaving the remaining sentences intact.
  • Under s 6(3) of the Criminal Appeal Act 1912, the "lesser sentence" threshold can apply to an effective sentence produced by partial accumulation, not only to discrete individual sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 292

Cases:
- R v Sharrock [1999] NSWCCA 289
- R v (Fuller) Thornberry [2000] NSWCCA 526