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Court of Criminal Appeal 19 May 2004

R v HAYES

[2004] NSWCCA 156

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SEVERITY APPEAL TOTALITY

Citation: R v Hayes [2004] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 19 May 2004
Judges: Hodgson JA, Levine J, Hidden J

Background

The applicant was sentenced in the Sydney District Court on 19 September 2003 for three separate sexual and violent offences committed against different victims on different occasions spanning approximately two years. The offences were: a rape committed at Surry Hills in March 2001 (carrying a maximum of 14 years); an indecent assault and larceny committed at Kings Cross in August 2002 (maximum 5 years); and entering a building with intent to commit an assault in February 2003 (maximum 7 years). The second and third offences were each committed while the applicant was on bail for the earlier charge.

Judge Solomon imposed fully consecutive sentences totalling 12 years imprisonment, with an effective non-parole period of 9 years and 3 months. No challenge was made to the individual sentences or to the sentencing judge's treatment of subjective matters or aggravating features.

The applicant sought leave to appeal on the sole ground that the total sentence, produced by ordering all three terms to run consecutively, was manifestly excessive having regard to the principle of totality.

  • Whether the sentencing judge erred in applying the principle of totality when ordering three separate sentences to be served wholly consecutively
  • Whether the aggregate sentence of 12 years was manifestly excessive or not "just and appropriate" in all the circumstances
  • Whether the High Court authorities on consecutive sentencing required the court to impose concurrent or partly concurrent sentences for multiple offences committed against separate victims on separate occasions

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, granting leave but finding no error in the sentencing approach or the accumulated total. Levine J (with Hodgson JA and Hidden J agreeing) held that the sentencing judge had plainly turned his mind to both accumulation and totality, and had reached a conclusion that the accumulated sentences properly reflected the totality of the applicant's criminality.

The Court examined the three relevant High Court authorities: Mill v The Queen, Pearce v The Queen, and Johnson v The Queen. Levine J found that none of those decisions required a sentencing court to impose concurrent or partly concurrent sentences for multiple offences. They require consideration of whether concurrency is appropriate, but they do not mandate it. The Court cited the statement in Johnson that judges of first instance should be allowed flexibility in sentencing, consistent with the statutory regime, and noted that fixing a sentence for each offence and aggregating them is the orthodox, though not immutable, practice.

The applicant did not contend that any individual sentence was manifestly excessive, nor that the sentencing judge should have reduced the individual terms before aggregating them. Without either of those available arguments, the Court found no basis for concluding that the fully consecutive structure produced an unjust or inappropriate total. The gravity of each offence and its attendant aggravating circumstances, including the commission of two offences while on bail, supported the outcome reached below.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that Mill, Pearce, and Johnson do not require concurrent or partially concurrent sentences where offences are separate, involve different victims, and arise on entirely distinct occasions.
  • A sentencing court must consider totality when accumulating sentences, but full accumulation is not precluded merely because the resulting total is substantial, provided the court has genuinely engaged with the question.
  • No error arises from fully consecutive sentences where no individual sentence is shown to be manifestly excessive and no submission is available that the individual terms should have been reduced prior to aggregation.
  • In dismissing the appeal, the Court emphasised that the gravity of each offence must be assessed individually and cannot be diluted simply because multiple offences are sentenced together.
  • Committing further offences while on bail for an earlier charge is a material aggravating consideration, and fully accumulated sentences may properly reflect the totality of such a pattern of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61I (sexual intercourse without consent), 61L (indecent assault), 114(1)(d) (enter building with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 55(2)

Cases:
- Johnson v The Queen [2004] HCA 15
- Mill v The Queen (1998) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610