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Court of Criminal Appeal 17 June 2004

Regina v Morgan

[2004] NSWCCA 194

Sexual offences
SERIOUS OFFENCES PERIOD ON PAROLE TOO SHORT.

Citation: Regina v Morgan [2004] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 17 June 2004
Judge(s): Dowd J, Hislop J, Smart AJ

Background

The applicant had been sentenced in the District Court at Dubbo on 5 June 2003 for sexual intercourse without consent and two counts of indecent assault. The sentencing judge imposed a head sentence of 4 years on the sexual assault count and 20-month sentences on each indecent assault count, with one cumulative and one concurrent, producing an effective total head sentence of 4 years 5 months.

The following day, the judge reopened the matter under the slip rule, stating that sentences should have been imposed in the consecutive order of the counts on the indictment. The restructured sentences, endorsed on 6 June 2003, had the effect of extending the total head sentences by 9 months, to 5 years 2 months, without any acknowledgment of the increase or explanation for it.

The applicant sought leave to appeal, contending that the revision was based on a misconception and had improperly increased the effective length of his sentences.

  • Whether the judge's invocation of the slip rule on 6 June 2003 was valid, given that the stated reason for restructuring the sentences (that counts must be sentenced in indictment order) was itself incorrect
  • Whether the increase of 9 months in the total effective head sentences was justified or properly explained
  • Whether the total non-parole periods were appropriate relative to the total head sentences in either version of the sentencing

Decision

The Court of Criminal Appeal found that the premise underlying the judge's decision to reopen the matter was simply wrong. There is no requirement that sentences be imposed in the consecutive order of counts as they appear on the indictment. Because the restructuring was driven by that misconception, and no reasons were given for what amounted to a 9-month increase in the effective head sentences, the revised sentences of 6 June 2003 could not stand.

The Court also found a separate error in the original sentencing of 5 June 2003. Although the head sentences themselves were within the permissible range, the total non-parole periods of 3 years 11 months were too long relative to total head sentences of 4 years 5 months. A parole period of only 6 months on sentences of that total length was insufficient and did not properly reflect the finding of special circumstances the judge had made.

The appropriate total non-parole period, the Court determined, was 3 years 3 months, calculated from 2 June 2003. This was achieved by reducing the non-parole period on the first indecent assault count (count 2) from 14 months to 6 months, while preserving the head sentences at their original total of 4 years 5 months.

Orders Made

  • Leave to appeal against sentence granted
  • Sentence on count 4 (sexual assault without consent) quashed and replaced: 4 years imprisonment from 2 June 2003, with a non-parole period of 2 years 9 months expiring 1 March 2006
  • Sentence on count 6 (indecent assault) quashed and replaced: 20 months imprisonment from 2 June 2003, with a non-parole period of 14 months expiring 1 August 2004
  • Sentence on count 2 (indecent assault) quashed and replaced: 20 months imprisonment from 2 March 2006, with a non-parole period of 6 months expiring 1 September 2006, on which date the applicant becomes eligible for release on parole
  • All sentences imposed in the District Court on 5 June 2003 declared quashed

Key Takeaways

  • There is no rule requiring a sentencing judge to impose sentences in the consecutive order in which counts appear on the indictment; restructuring sentences on that basis constitutes an error of principle.
  • Where a sentence is amended under the slip rule in a manner that increases the effective head sentence, the sentencing court must acknowledge that increase and provide reasons for it.
  • A finding of special circumstances requires that the resulting parole period be meaningful; on total head sentences of 4 years 5 months, non-parole periods totalling 3 years 11 months produced an insufficient parole period and did not properly reflect the special circumstances finding.
  • The Court of Criminal Appeal confirmed that the original head sentences of 5 June 2003 were within the permissible range, and the remedy was to restore those head sentences while correcting the non-parole periods.
  • Failing to state commencing and expiry dates in sentencing remarks, and failing to articulate the total effective head sentence and total non-parole period, contributed to the confusion that led to the erroneous revision.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 43 (which governs correction of sentencing errors)

Cases cited: None