Citation: McCann v R [2004] NSWCCA 48
Court: New South Wales Court of Criminal Appeal
Date: 3 February 2004
Judge(s): James J, Buddin J
Background
The applicant, a man in his late thirties, was convicted in the District Court on four counts of aggravated sexual assault and one count of indecent assault. All five offences were committed on a single evening in April 2001 against a young female overseas student who rented a bedroom in his apartment. The victim was 27 years old at the time.
The trial judge, Gibb DCJ, found that the applicant had demanded the victim remove her clothing, threatened to rape her, physically assaulted her, and then subjected her to multiple acts of sexual violence. The jury rejected the applicant's defence that the sexual activity had been consensual.
Following conviction, the applicant was sentenced to a range of terms totalling, on the longest individual count, eight years imprisonment with a non-parole period of four years and nine months. All sentences were made to run concurrently from the date of sentencing. He then applied to the Court of Criminal Appeal for leave to appeal against those sentences.
Legal Issues
- Whether the sentencing judge erred in making sentences for multiple counts of aggravated sexual assault wholly concurrent, in light of the High Court's decision in Pearce v The Queen
- Whether, if that error was established, lesser sentences should have been substituted on resentencing
Decision
The applicant's principal ground of appeal was that the sentencing judge had failed to properly apply the principle from Pearce v The Queen, which requires a court to take account of differences in the conduct underlying each separate count when determining whether sentences should run concurrently or consecutively. The applicant argued this error had infected three of the four sentences for aggravated sexual assault.
During argument, the Court of Criminal Appeal (constituted by two judges) indicated that the Pearce question raised a difficult issue of principle that a two-judge bench was not well placed to resolve. The Court therefore did not determine that question on its merits.
Critically, the Court indicated to both parties that even if it were to accept the first ground of appeal and proceed to resentence the applicant, it would not impose sentences less severe in their overall effect than those imposed by Gibb DCJ. Both counsel accepted that indication and did not press the Court to resolve the underlying question of principle.
On that basis, the Court granted leave to appeal but dismissed the appeal against sentence. The sentences imposed in the District Court therefore stood.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- A two-judge bench of the Court of Criminal Appeal declined to resolve a difficult question of principle concerning the application of Pearce v The Queen to concurrent sentencing for multiple counts arising from the same criminal episode, on the basis it was not appropriate for a bench of that constitution to do so.
- In dismissing the appeal, the Court applied the principle that even where a sentencing error may exist, an appellate court will not intervene if resentencing would produce no less severe an outcome for the applicant.
- Under s 61J of the Crimes Act, sexual intercourse without consent in circumstances of aggravation (here, the infliction of actual bodily harm) carries a maximum penalty of 20 years imprisonment.
- Concurrent sentences for multiple counts of aggravated sexual assault arising from a single evening were upheld, reflecting the sentencing judge's assessment of the objective seriousness of the offences and the applicant's subjective circumstances, including his criminal history and prior alcohol dependence.
- No error was established sufficient to justify appellate intervention once the Court indicated that resentencing would not benefit the applicant.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), ss 61J (aggravated sexual assault), 61L (indecent assault)
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW), s 6(3)
Cases:
- Pearce v The Queen (1998) 194 CLR 610