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Court of Criminal Appeal 8 April 2004

REGINA v. PELL

[2004] NSWCCA 205

Sexual offences
SENTENCING SENTENCE EXCESSIVE SPECIAL CIRCUMSTANCES MULTIPLE OFFENCES SENTENCE

Citation: Regina v Pell [2004] NSWCCA 205
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2004
Judge(s): Beazley JA; Dowd J; Greg James J

Background

The appellant pleaded guilty in the District Court to three counts of indecent assault on a female under the age of 16 years, contrary to s 76 of the Crimes Act 1900 (NSW), which carried a maximum penalty of six years' imprisonment. The offences involved two child victims and had been committed in 1977, resulting in a significant delay before charges were laid. At the time of sentencing, the appellant was in his sixties and had no prior experience of custody.

At first instance, Judge Hosking of the District Court determined that the appropriate total sentence for all three offences was three years and nine months. His Honour then structured the sentences by loading the full weight of that overall term onto count one, imposing three years and nine months for that count, with concurrent fixed terms of twelve months each for counts two and three.

The appellant appealed on two grounds: that the total sentence was excessive given his personal circumstances, and that the trial judge failed to give proper effect to his own finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which ordinarily requires a longer parole period relative to the non-parole period than the statutory default.

  • Whether the trial judge erred by concentrating the totality of the criminality of all three offences into the sentence for a single count, rather than structuring each sentence to reflect the individual criminality of that charge.
  • Whether the total sentence of three years and nine months was excessive, having regard to the appellant's personal circumstances, including his age, first-time imprisonment, time spent in protection, and the delay in charging.
  • Whether the trial judge failed to give proper effect to his finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • What approach the Court of Criminal Appeal must take once a sentencing error is identified, and whether re-sentencing is required to produce a lower sentence than originally imposed.

Decision

The Court of Criminal Appeal accepted that the trial judge erred in imposing on count one a sentence that effectively captured the total criminality of all three offences. Relying on Pearce v The Queen (1998) 194 CLR 610, the Court confirmed that each individual sentence must appropriately reflect the criminality of the specific offence to which it relates. The Crown frankly conceded this error.

The Court also accepted that the overall head sentence of three years and nine months was excessive, having regard to the appellant's age, his status as a first-time prisoner, the requirement to serve his sentence in protection, and the long delay between the offending and the charges. On those bases, the Court determined that a lesser total sentence was warranted.

Once a sentencing error was identified, the Court was required to embark on its own process of re-sentencing rather than simply adjusting the original orders. Critically, the Court confirmed that re-sentencing does not necessarily produce a result more favourable to the appellant. In this case, re-sentencing meant that while the overall head sentence was reduced, the sentences for counts two and three were each increased to properly reflect the criminality attached to those charges.

Before delivering its orders, the Court gave the appellant an opportunity to reconsider whether to proceed with the appeal, having disclosed the proposed sentence structure that would increase two of the individual counts. The appellant, having been provided with a document setting out the proposed terms, elected to proceed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by the trial judge quashed.
  • Count one: two years' imprisonment commencing 9 May 2003, ending 8 May 2005.
  • Count three: two years and three months' imprisonment commencing 9 May 2003, ending 8 August 2005.
  • Count two: three years' imprisonment commencing 9 November 2003, ending 8 November 2006.
  • Count two: non-parole period of one year and nine months commencing 9 November 2003, ending 8 August 2005.
  • Direction under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the appellant be released to parole on 8 August 2005.
  • No non-parole period imposed for counts one and three, given the effect of the sentence for count two.

Key Takeaways

  • Under the principle in Pearce v The Queen (1998) 194 CLR 610, each individual sentence in a multiple-count matter must reflect the criminality of the specific offence charged; loading the full weight of all offences onto a single count is a sentencing error.
  • Where a sentencing error is identified, the Court of Criminal Appeal is required to re-sentence the offender and make its own independent determination, rather than simply adjusting the impugned sentence.
  • Re-sentencing on appeal does not guarantee a more favourable outcome for an appellant. Correcting an error in sentence structure may result in some individual counts receiving higher sentences, even where the overall head sentence is reduced.
  • Where the Court of Criminal Appeal proposes to increase individual sentences in the course of re-sentencing, procedural fairness requires that the appellant be given the opportunity to consider that position and decide whether to withdraw the appeal before orders are made.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be given proper effect in the structure of any sentence; a finding that is not reflected in the sentence as imposed may itself constitute an error on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (indecent assault on a female under 16)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances); s 50(1) (release to parole)

Cases
- Pearce v The Queen (1998) 194 CLR 610