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Court of Criminal Appeal 11 November 2003

R v Roberts

[2003] NSWCCA 309

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE OLD SEXUAL ASSAULT OFFENCES DISCOUNT FOR PLEA TARIFF AT TIME OF COMMISSION OF OFFENCE

Citation: R v Roberts [2003] NSWCCA 309
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2003
Judges: Levine J, Howie J, Smart AJ

Background

The applicant pleaded guilty to three counts of historical sexual offences against three child victims, committed between 1971 and 1978 when the applicant was in his early to mid-twenties. The offences included buggery and indecent assault. A further twelve related matters were placed on a Form 1 to be taken into account on sentencing for the first count.

In the District Court, Acting Judge Stewart sentenced the applicant to an overall term of 13 years imprisonment with a non-parole period of 10 years. The applicant was 52 years old at the time of sentencing, suffered a severe hearing disability, and had been held in protective custody since his arrest in October 2000.

The applicant sought leave to appeal against those sentences on multiple grounds, contending that the sentencing judge had made a series of errors in his approach to rehabilitation, the Form 1 offences, the applicable sentencing tariff, subjective circumstances, the plea discount, cumulation, and special circumstances.

  • Whether the sentencing judge erred in finding the applicant had little prospect of rehabilitation, and whether that finding was a relevant sentencing consideration
  • Whether the judge correctly applied the sentencing tariff in place at the time the historical offences were committed
  • Whether an adequate discount was given for the guilty pleas
  • Whether the judge correctly dealt with the Form 1 offences
  • Whether the 1979 sentence and the applicant's subjective circumstances were properly taken into account
  • Whether the sentence for count 2 should have been wholly cumulative on count 1
  • Whether a finding of special circumstances was properly reflected in the non-parole period

Decision

The Court of Criminal Appeal granted leave and allowed the appeal in respect of the sentences for counts 1 and 2. Howie J (with whom Levine J and Smart AJ agreed) found that several errors had been made in the sentencing exercise below, warranting the quashing and redetermination of those sentences.

On the question of rehabilitation, the Court accepted that the applicant's poor prospects of rehabilitation were a relevant sentencing consideration, but found the sentencing judge had not erred in identifying that finding. The Court noted, however, that the applicant's protective custody status and resulting inability to access rehabilitation courses was of limited relevance precisely because the courses would have been of little benefit to him in any event.

Regarding the guilty plea discount, the Court found the sentencing judge had not given sufficient weight to the pleas. The Court applied a 25 percent reduction to reflect those pleas, along with the applicant's hearing difficulties. On cumulation, the Court found that making the sentence for count 2 wholly cumulative produced an overall sentence that was excessive given the totality principle, and restructured the sentences accordingly.

The Court also confirmed that when sentencing for old offences, the applicable tariff is that which prevailed at the time the offences were committed, not the tariff current at the date of sentencing. The plea discount and other subjective factors were to be reflected primarily in the overall head sentence rather than by separately reducing the non-parole period, to avoid double-counting.

Orders Made

  • Leave to appeal granted; appeal allowed; sentences for counts 1 and 2 quashed
  • Count 1 (with Form 1 matters taken into account): imprisonment for 7 years with a non-parole period of 4 years 6 months, commencing 17 October 2000; non-parole period expiring 16 April 2005
  • Count 2: imprisonment for 5 years 6 months with a non-parole period of 2 years 6 months, commencing 17 October 2004; non-parole period expiring 16 April 2007
  • Total effective sentence: 9 years 6 months with an overall non-parole period of 6 years 6 months from 17 October 2000

Key Takeaways

  • When sentencing for historical offences, the applicable sentencing tariff is that which was in force at the time the offences were committed, not the tariff prevailing at the date of sentence.
  • A guilty plea discount and allowances for an offender's personal hardship (such as a significant disability) are to be reflected primarily in the overall head sentence; reducing the non-parole period on the same grounds risks a double discount.
  • Poor prospects of rehabilitation are a relevant sentencing consideration, but findings in that regard must be carefully calibrated to the evidence before the court.
  • Where a finding of special circumstances is made, the Court confirmed it should produce some benefit to the offender by way of a reduced non-parole period, though that reduction should not be so substantial as to undermine the punitive function of the minimum term.
  • The totality principle requires that wholly cumulative sentences be scrutinised to ensure the aggregate does not produce an outcome disproportionate to the overall criminality involved.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33

Cases:
- R v Moon (2000) 117 A Crim R 497
- R v MJR (2002) 130 A Crim R 481
- R v Durocher-Yvon [2003] NSWCCA 299