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Court of Criminal Appeal 18 December 2003

Regina v JMP

[2003] NSWCCA 369

Sexual offences
SEXUAL ASSAULT ON OWN CHILDREN FORM 1 OFFENCES HISTORY OF OFFENCES ASSISTANCE TO AUTHORITIES PARITY OF SENTENCES OF CO OFFENDER

Citation: Regina v JMP [2003] NSWCCA 369
Court: NSW Court of Criminal Appeal
Date: 18 December 2003
Judge(s): Barr J; Miles AJ

Background

The applicant, a mother in her fifties, pleaded guilty in the Sydney District Court to eight counts of sexual assault against three of her own children. The offences occurred over approximately three and a half years during the 1980s, when the children ranged in age from six to twelve years old. They included acts of penetration and indecency in which the applicant participated alongside her then-partner.

The applicant was sentenced by Gibson DCJ on 31 January 2003. Four additional related offences were taken into account on a Form 1 (a procedural device that allows a court to consider acknowledged offences without recording further convictions, factored into the sentence on count 8). The sentences imposed included a head sentence of nine years and seven months on count 8, with a non-parole period of seven years and two months.

The applicant sought leave to appeal on the basis that the sentences were excessive, with particular focus on the disparity between her sentence and the sentence imposed on her co-offender, her former partner.

  • Whether the sentencing judge gave adequate weight to the applicant's assistance to authorities, including assistance in the prosecution of the co-offender
  • Whether the sentences imposed on the applicant were disproportionately severe compared to those imposed on the co-offender, giving rise to an unjustified sense of grievance
  • Whether the totality principle required the sentences to be moderated to avoid a crushing result
  • Whether the concurrent operation of sentences was appropriate given the associated nature of the offending

Decision

The Court of Criminal Appeal accepted that the sentencing judge had not adequately accounted for the applicant's assistance to authorities, including her co-operation in the prosecution of the co-offender. The Court considered that a total discount of approximately 30 per cent would have been justified, encompassing the utilitarian value of the guilty plea, contrition, and the actual assistance provided.

Using a notional starting point of ten years, the appropriate sentences for counts 6 and 7 would have been around seven years, with count 8 (taking the Form 1 matters into account) resulting in no more than eight years. When measured against the eight-year head sentence imposed on the co-offender, the disparity was found to be sufficient to cause a well-justified sense of grievance in the mind of a disinterested observer.

The Court also applied the totality principle, noting the need to avoid imposing a crushing sentence on a woman of 54 years of age with no prior criminal record at the time of the relevant offending. Concurrent sentences were considered appropriate given both the associated nature of the criminal conduct and the totality consideration.

The Court varied the sentence so that the applicant would serve an effective total term of eight years' imprisonment with a non-parole period of five years and six months, achieved by reducing the head sentence on count 8 and adjusting the non-parole periods on counts 6, 7 and 8.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence on count 8 quashed and substituted with a period of imprisonment of eight years, commencing 3 October 2001 and expiring 2 October 2009, with a non-parole period commencing 3 October 2001 and expiring 2 April 2007
  • Non-parole periods on counts 6 and 7 set aside and substituted, on each count, with a non-parole period commencing 3 October 2001 and expiring 2 April 2007

Key Takeaways

  • Parity with a co-offender is a recognised ground of appeal: where a disparity in sentences would cause a well-justified sense of grievance in the mind of a disinterested observer, appellate intervention may be warranted.
  • A discount for assistance to authorities extends beyond the utilitarian value of a guilty plea to encompass contrition and actual co-operation in the prosecution of others, and must be adequately reflected in the sentence imposed.
  • The totality principle requires a sentencing court to consider whether the cumulative effect of multiple sentences would produce a result that is crushing in all the circumstances, including the offender's age and prior record.
  • Concurrency of sentences may be justified by a combination of the associated nature of the criminal conduct across multiple counts and the operation of the totality principle.
  • Appellate courts will interfere with sentences at first instance only to the extent necessary, and will not restructure sentences beyond what is required to correct the identified error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases:
- Attorney-General's Application No 1 [2002] 56 NSWLR 146
- Pearce v The Queen (1998) 194 CLR 610
- R v El-Kotob [2002] VSCA 109
- R v Henderson [1999] 1 VR 30
- R v Musso [2002] NSWCCA 487
- R v Nagy [2002] QCA 175