Citation: Regina v Corey Allan [2004] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 29 April 2004
Judges: Tobias JA, Kirby J, Bell J
Background
The applicant was convicted after trial in the Tamworth District Court on three counts arising from events in the early hours of 11 January 2002. He had been drinking with the victim and others at a licensed venue, followed them to a nearby flat, waited while the victim was occupied elsewhere, and was rebuffed when he asked her for sexual contact. He then returned to the flat after the other guests had left, entered through an unlatched front door, and sexually assaulted the victim before fleeing when she screamed.
The three counts were: breaking and entering a dwelling with intent to commit sexual intercourse without consent; indecent assault; and attempted sexual intercourse without consent. The sentencing judge imposed four years' imprisonment for count one (with a one-year non-parole period), a fixed term of one year for count two, and four years for count three (with an 18-month non-parole period), structured so that the sentences for counts two and three ran consecutively to the sentence for count one. The aggregate was five years' imprisonment with an effective non-parole period of two and a half years.
The applicant sought leave to appeal against the severity of those sentences, contending that the sentencing judge had structured the sentences incorrectly and had failed to give adequate effect to the totality principle.
Legal Issues
- Whether the sentencing judge erred by deciding to accumulate the sentences for counts two and three before fixing the appropriate term for each individual offence, contrary to the principles in Pearce v The Queen.
- Whether the sentencing judge failed to adequately address the totality principle when structuring the sentences.
- Whether the judge's stated rationale for accumulation (that the first offence was complete before the others were committed) was an overly simplistic approach.
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error of principle in the sentencing judge's approach.
On the first ground, Bell J (with whom Tobias JA and Kirby J agreed) held that the sentencing judge's remarks did not demonstrate that he had fixed accumulation before determining individual sentence terms. Rather, the judge had indicated his intention to allow for some degree of accumulation as part of his overall sentencing structure, which was consistent with the approach approved in Pearce and confirmed by the High Court in Johnson v The Queen [2004] HCA 15. The Johnson decision had also clarified that Pearce does not depart from the totality principles explained in Mill v The Queen.
On the second ground, Bell J rejected the submission that the judge had applied an overly simplistic approach by reference to the completion of the first offence. The judge had clearly differentiated the three offences. It was open to him to treat the fact that the break-and-enter was complete before the sexual offences were committed as a factor favouring accumulation. The Court noted that the four-year sentence on count one had been structured with a relatively short non-parole period of 12 months, which itself reflected the overall design of the sentences. No ground of manifest excess had been pressed, and no individual sentence was said to be excessive.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that Pearce v The Queen does not require a rigid sequencing in which the precise term for each offence is fixed in complete isolation before any consideration of accumulation. A sentencing judge may indicate an intention to structure sentences with some degree of accumulation as part of the overall sentencing exercise.
- The High Court's decision in Johnson v The Queen [2004] HCA 15 clarified that Pearce does not depart from the totality principles explained in Mill v The Queen, and the Court of Criminal Appeal applied that clarification here.
- A sentencing judge's decision to accumulate sentences is not rendered erroneous merely because a single factor (such as the sequential completion of distinct offences) is prominently stated as a reason for that approach, provided the offences have been genuinely considered separately.
- In dismissing the appeal, the Court emphasised that the applicant had not contended that any individual sentence was excessive or that the aggregate was manifestly excessive, which was material to the outcome.
- Where a sentencing judge structures a lead sentence with a deliberately short non-parole period to accommodate consecutive sentences, that design can itself reflect adequate attention to totality rather than constitute error.
Legislation and Cases Referenced
Cases:
- Johnson v The Queen [2004] HCA 15
- Mill v The Queen (1988) 194 CLR 610
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Regina v AEM [2002] NSWCCA 58