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Court of Criminal Appeal 13 May 2004

Regina v Fernando

[2004] NSWCCA 147

Sexual offencesAssault & violence
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE OFFER OF DNA SAMPLE WHETHER NEED FOR SPECIFIC DISCOUNT DIFFERENT MAXIMIM PENALTY WHETHER ERROR.

Citation: Regina v Fernando [2004] NSWCCA 147
Court: New South Wales Court of Criminal Appeal
Date: 13 May 2004
Judge(s): Tobias JA, Kirby J, Bell J

Background

The appellant had pleaded guilty in the District Court to breaking and entering a dwelling house and committing an act of indecency therein, contrary to s 112(1) of the Crimes Act 1900. The offence involved a late-night home invasion in Walgett in which the appellant physically assaulted a woman in her bed, causing her significant physical injuries and lasting psychological harm. The complainant was left with permanent scarring, post-traumatic stress disorder, and a substantially diminished quality of life.

English DCJ sentenced the appellant to 9.5 years imprisonment with a non-parole period of just over 7 years. The sentencing judge initially made an error by sentencing under an incorrect provision carrying a different maximum penalty, then corrected the sentence by applying a mathematical adjustment to preserve the same proportions under the correct provision.

The appellant sought leave to appeal against sentence, raising two principal grounds: first, that the sentencing judge failed to give a specific, identifiable discount for his voluntary provision of a DNA sample; and second, that the mechanical mathematical correction of the sentence following the identification of the error was itself an error.

  • Whether a sentencing judge is required to identify and articulate a specific discount for an offender's voluntary offer of a DNA sample under the Crimes (Forensic Procedures) Act 2000
  • Whether correcting a sentencing error (arising from applying the wrong statutory provision and its associated maximum penalty) by a purely mathematical adjustment constitutes error warranting appellate intervention
  • Whether the sentence ultimately imposed was manifestly excessive

Decision

On the DNA discount ground, the Court found no error in the sentencing judge's approach. Kirby J noted that while voluntary provision of a DNA sample may, depending on the circumstances, be treated as evidence of contrition and attract a discount, there is no requirement that such a discount be separately itemised or quantified. Her Honour had acknowledged the co-operation and stated she took it into account. Failing to elaborate further did not constitute error.

On the mathematical correction, the Court accepted that the approach was crude. Rather than recomposing her sentencing remarks to address the correct offence provision afresh, the judge preserved the same ratios between the maximum penalty, the head sentence, and the non-parole period. Kirby J acknowledged this would ordinarily carry the risk of error.

However, the Court concluded that, in this case, no lesser sentence was warranted in any event. The offence was at the top end of the scale of objective seriousness. It was committed while the appellant was on parole for prior offending that bore similarities to the present crime. The principles in R v Fernando (1992) regarding the sentencing of Aboriginal offenders had been properly applied. Deterrence, both personal and general, was a significant sentencing consideration.

The Court applied s 6(3) of the Criminal Appeal Act 1912, which relevantly provides that an appeal will not succeed if a lesser sentence would not have been warranted. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to separately itemise or quantify a discount for voluntary provision of a DNA sample, provided the co-operation is acknowledged and taken into account in the overall sentencing exercise.
  • Correcting a sentencing error by mathematical adjustment, rather than by recomposing the sentencing remarks for the correct offence, is a crude approach that ordinarily carries the risk of appealable error, but will not result in a successful appeal where no lesser sentence was in any event warranted.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will decline to interfere with a sentence where it is satisfied that no lesser sentence was justified on the facts, even if the sentencing process contained technical imperfections.
  • Committing a serious offence while on parole, particularly where prior offending bears similarities to the current offence, remains a significant aggravating factor in sentencing.
  • In dismissing the appeal, the Court affirmed that the principles in R v Fernando (1992) require a sentencing court to take into account an Aboriginal offender's disadvantaged background, but this does not preclude the imposition of a substantial custodial sentence where objective seriousness and deterrence so demand.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson (2000) 49 NSWLR 383
- R v Ellis (1986) 6 NSWLR 603
- Cameron v The Queen (2002) 209 CLR 339
- AB v The Queen (1999) 198 CLR 111
- R v Simpson (2001) 53 NSWLR 704