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Court of Criminal Appeal 9 December 2003

R v D.K.M

[2003] NSWCCA 372

Sexual offences
CRIMINAL LAW SENTENCING CARNAL KNOWLEDGE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: D.K.M v R [2003] NSWCCA 372
Court: NSW Court of Criminal Appeal
Date: 9 December 2003
Judge(s): Barr J; Newman AJ

Background

The applicant, referred to as DKM, pleaded guilty in the District Court to three sexual offences committed against his daughter over a period spanning 1979 to 1984. The offences involved carnal knowledge of the complainant when she was aged twelve and fifteen respectively, and sexual intercourse without consent when she was seventeen. The facts of each offence were serious, involving physical force and the complainant's explicit resistance.

Coolahan DCJ sentenced DKM to four years and six months imprisonment on each count, with sentences partially accumulated to produce an effective head sentence of seven years and six months and an effective non-parole period of six years. The sentencing judge found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act, which permits a departure from the standard ratio requiring the non-parole period to be no more than three-quarters of the total sentence.

DKM sought leave to appeal on the basis that, despite the finding of special circumstances, the sentences as structured produced an effective non-parole period of eighty per cent of the effective head sentence rather than a reduced proportion. He argued the sentencing judge failed to give effect to his own finding.

  • Whether the sentencing judge, having found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act, was obliged to structure the sentences so that the effective non-parole period fell below seventy-five per cent of the effective head sentence.
  • Whether the partial accumulation of sentences, which resulted in a non-parole period exceeding the standard statutory ratio, constituted an error warranting appellate intervention.
  • Whether, even if error were established, the Court of Criminal Appeal should exercise its residual discretion to decline to reduce the sentences given the objective seriousness of the offending.

Decision

Barr J observed that a finding of special circumstances ordinarily signals an intention to produce a parole period exceeding twenty-five per cent of the head sentence. Where sentences are partially accumulated, a sentencing judge should consider whether the accumulation itself justifies further adjustment to the non-parole period components, and should say so if it does. However, the sentencing judge here had expressly stated that the aggregate non-parole period must reflect the objective seriousness of the offences, which Barr J treated as a deliberate and reasoned limitation on the extent of any adjustment.

Barr J concluded that the sentencing judge had not fallen into error. The judge had intended the outcome achieved, and had expressly constrained the effect of the special circumstances finding to avoid producing an aggregate non-parole period inconsistent with the gravity of the offending. The structure of the sentences fell within the sentencing discretion properly exercised.

Barr J added that even if error had been established, the Court would not have reduced the non-parole period given the very serious nature of the offending. Newman AJ agreed, endorsing in particular that observation and noting that the sentence was warranted in law regardless of any question of error in methodology.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act does not automatically compel a reduction in the effective non-parole period when sentences are accumulated; a sentencing judge may expressly limit that adjustment to reflect the objective seriousness of the offending.
  • Where partial accumulation of sentences results in an effective non-parole period exceeding seventy-five per cent of the effective head sentence, a sentencing judge should consider whether the accumulation itself justifies further adjustment, and should articulate that consideration.
  • The Court of Criminal Appeal confirmed it retains a residual discretion to decline to reduce a sentence, even where error in method is identified, if the sentence imposed is otherwise warranted in law.
  • No error was established in the sentencing judge's reasons; the express reference to the need for the aggregate non-parole period to reflect objective seriousness demonstrated that the outcome was intentional rather than accidental.
  • In cases involving multiple serious sexual offences, the aggregate effect of partially accumulated sentences will be assessed against the totality of the criminality, and individual component adjustments may be legitimately constrained by that consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 44

Cases:
- R v Simpson (2001) 53 NSWLR 704
- R v LWP [2003] NSWCCA 215
- R v Lyndon [2003] NSWCCA 152
- R v Reicher [2003] NSWCCA 300
- R v Astill (No 2) (1992) 64 A Crim R 289