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22
Court of Criminal Appeal 1 October 2004

Regina v Michael Arthur Falls

[2004] NSWCCA 335

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING DETAIN FOR ADVANTAGE SEXUAL ADVANTAGE PLEA OF GUILTY NOT CROSS

Citation: Regina v Michael Arthur Falls [2004] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 1 October 2004
Judges: Dunford J, Adams J, Howie J

Background

The applicant pleaded guilty in the District Court to one count of attempting to detain a 12-year-old girl without her consent, with the intention of obtaining a sexual advantage. The offence occurred in August 2002, when the applicant followed the girl home from school, placed his hand on her neck, and attempted to steer her toward the driveway of a block of units before she screamed and fled.

At the sentencing hearing, the Crown tendered a Statement of Agreed Facts by consent. The applicant then gave evidence in which he denied any sexual intent, claiming he only wanted "to have a conversation" with the girl. He was not cross-examined by the Crown on the inconsistency between this evidence and the agreed facts. The sentencing judge sentenced him to eight years imprisonment with a six-year non-parole period, substantially following the agreed facts rather than the applicant's oral evidence.

The applicant sought leave to appeal, arguing that the sentencing proceedings were conducted improperly and that the sentence was excessive.

  • Whether the sentencing judge erred by sentencing the applicant on the basis of the Statement of Agreed Facts rather than on his oral evidence, where he was not cross-examined on the inconsistencies
  • Whether the sentence of eight years imprisonment was excessive in the circumstances
  • Whether special circumstances existed that would justify departing from the standard ratio between the head sentence and the non-parole period

Decision

The Court found the sentencing proceedings were unsatisfactory, but not for the reason the applicant contended. The Crown had tendered materials beyond the agreed facts, including police interview records that contradicted those facts. This created an untidy evidentiary foundation. Compounding matters, the applicant's evidence was ambiguous: while he denied sexual intent in general terms, his denial was not clearly inconsistent with his plea, since the agreed facts themselves acknowledged only a non-specific sexual advantage falling short of sexual intercourse.

On the core ground of appeal, all three judges agreed that the sentencing judge committed no error by sentencing on the basis of the agreed facts. A sentencing judge is entitled to find facts from all material before the court, including an agreed statement of facts tendered by consent. Where an accused pleads guilty on that basis, he cannot complain if the judge sentences accordingly. The Court noted that the applicant's oral evidence, to the extent it was ambiguous or inconsistent, was properly set aside by the sentencing judge without any procedural error.

All three judges agreed the sentence of eight years was excessive. Dunford J and Howie J proposed a head sentence of six years, applying a 20 percent discount for the guilty plea from a starting point of 7.5 years. Adams J reached the same final figure of six years but from a lower starting point. The Court unanimously fixed the non-parole period at four years and six months.

On special circumstances, the Court found none existed. The applicant had reoffended only five months into parole after almost nine years of prior incarceration, had participated in sex offender programs without notable commitment, and had continued cannabis use despite counselling. The Court also rejected the submission that accumulation of sentences provided an analogy warranting a special circumstances finding.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by Blanch DCJ quashed
  • Applicant re-sentenced to six years imprisonment, commencing 28 August 2002
  • Non-parole period of four years and six months, expiring 27 February 2007

Key Takeaways

  • A sentencing judge is entitled to sentence an offender on the basis of a Statement of Agreed Facts tendered by consent, even where the offender subsequently gives evidence that is inconsistent with or seeks to qualify those facts. No error arises from this approach: GAS and SJK v The Queen [2004] HCA 22 was applied.
  • Where oral evidence given at a sentencing hearing is ambiguous rather than plainly contradictory of the plea, a court may treat it as not disturbing the agreed factual basis for the plea, particularly where the Crown does not cross-examine on the inconsistency.
  • The failure to cross-examine an offender on evidence that diverges from agreed facts does not prevent the sentencing judge from preferring and sentencing on those agreed facts. The absence of cross-examination did not operate as an acceptance of the contradictory evidence.
  • Reoffending during parole for a similar offence, combined with poor engagement in rehabilitation programmes, does not automatically give rise to a finding of special circumstances for the purpose of adjusting the standard non-parole ratio.
  • In dismissing the original sentence as excessive, the Court of Criminal Appeal recalculated from an objective starting point and applied a 20 percent discount for the guilty plea, reducing an eight-year sentence with a six-year non-parole period to six years with a four-and-a-half-year non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- GAS and SJK v The Queen [2004] HCA 22
- R v Barri [2004] NSWCCA 221
- R v Blanchard (NSWCCA, 10 September 1991, unreported)
- R v Harkin (1989) 38 A Crim R 296
- R v Newell [2004] NSWCCA 183
- R v O'Neill (1979) 2 NSWLR 582
- R v Palu (2002) 134 A Crim R 174