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Court of Criminal Appeal 24 November 2003

Regina v Smith

[2003] NSWCCA 353

Sexual offences
SENTENCES: INADEQUACY ATTITUDE TAKEN BY PARLIAMENT ACCUMULATION OF SENTENCES PREVIOUS SENTENCE AND CURRENT SENTENCE PRINCIPLE OF TOTALITY SPECIAL CIRCUMSTANCES

Citation: Regina v Smith [2003] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 24 November 2003
Judges: Meagher JA, Kirby J, Shaw J

Background

The applicant, a stepfather, pleaded guilty in the District Court at Dubbo to five counts of aggravated sexual offending against his stepdaughter, who was aged between eight and ten years at the time of the offences. The offences occurred across three separate periods between November 1997 and April 1999. The sentencing judge, Bellear DCJ, imposed a series of partially concurrent and partially cumulative sentences totalling eleven years with a non-parole period of eight years.

The applicant was also serving a pre-existing sentence arising from a separate but related conviction involving the same child (covering a later period of offending). That earlier sentence carried a non-parole period expiring on 28 July 2001, which was the date from which the new sentences began to run.

The applicant sought leave to appeal, arguing the sentences were mathematically flawed in their treatment of special circumstances and were manifestly excessive when the new sentences were considered alongside the existing one.

  • Whether the sentencing judge made a mathematical error by failing to give adequate effect to a finding of special circumstances in the ratio between the head sentence and the non-parole period
  • Whether it was appropriate to aggregate the existing sentence with the new sentences when assessing the overall non-parole period ratio
  • Whether the sentences imposed were manifestly excessive, having regard to the principle of totality and the objective gravity of the offences

Decision

The Court refused leave to appeal by majority (Meagher JA and Shaw J, with Kirby J dissenting). Meagher JA held that the applicant's method of calculating the non-parole ratio contained a logical fallacy. He reasoned that the earlier sentence should not simply be added to the new sentences to produce a combined ratio; the new sentences, viewed on their own, produced a ratio of approximately 73 per cent, comfortably within the statutory 75 per cent threshold and within the sentencing judge's discretion.

Meagher JA found no error in the overall structure or quantum of the sentences. He noted that the sentencing judge had expressly addressed the principle of totality and had, at least impliedly, taken into account the special circumstances identified, including the applicant's need for sex offender therapy, his psychiatric condition, and the fact he was serving his sentence under protection. Given the extreme objective gravity of the offences, including the sustained nature of the abuse, the young age of the victim, the serious breach of trust involved, and the significant trauma suffered, the sentences were at least within discretion.

Kirby J dissented, concluding that the cumulative effect of the sentences was too long and amounted to manifest excess. His Honour would have restructured the sentence by making Counts 3, 4 and 5 concurrent, reducing the non-parole period for the new offences from eight years to six years. Shaw J, while accepting that the discount for special circumstances was modest, regarded the outcome as within the sentencing judge's discretion and agreed with Meagher JA.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • When assessing whether a non-parole period ratio properly reflects special circumstances, the Court of Criminal Appeal held it is not appropriate to aggregate a pre-existing sentence with newly imposed sentences to produce a combined ratio. Each set of sentences should be examined in its own right.
  • A finding of special circumstances does not require the sentencing court to apply a fixed, rigid discount; a modest departure from the statutory ratio (here approximately two per cent) may still fall within the exercise of lawful discretion.
  • The principle of totality requires a sentencing judge to have regard to any existing sentence when structuring new cumulative terms, but this obligation does not transform the two sentences into a single combined structure for the purpose of ratio analysis.
  • Comparable sentences in other cases provided no useful guidance for the majority, given that every sentencing exercise turns on its specific facts and the particular weight given to objective seriousness.
  • Objective gravity remained the dominant consideration. Sustained sexual abuse of a very young child by a person in a position of trust, accompanied by serious psychological harm to the victim, supported sentences at the higher end of the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1988) 194 CLR 610
- The Queen v Close (1997) 31 NSWLR 743
- The Queen v Simpson (1992) 61 A Crim R 58
- The Queen v Clarke (1995) 78 A Crim R 226
- The Queen v Bolamatu [2002] NSWCCA 454
- R v LWP [2003] NSWCCA 215
- R v Moore (CCA, unreported, 12 November 1994)
- R v Latu (CCA, unreported, 6 July 1993)
- R v Swindale (CCA, unreported, 20 February 1992)
- R v PFC (CCA, unreported, 14 December 1992)
- R v Mohamed Hakem Hajjo (CCA, unreported, 31 August 1992)