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10
Court of Criminal Appeal 27 April 2005

Regina v Sangalang

[2005] NSWCCA 171

Sexual offences
CASE FALLING "JUST BELOW" THE MID RANGE OF OBJECTIVE SERIOUSNESS PLEA OF GUILTY RELEVANCE OF STANDARD NON

Citation: Regina v Sangalang [2005] NSWCCA 171
Court: New South Wales Court of Criminal Appeal
Date: 27 April 2005
Judge(s): Hunt AJA, Johnson J

Background

The appellant, a married man in his mid-forties, pleaded guilty in the Local Court to a charge of aggravated indecent assault. The circumstance of aggravation was that the victim, a girl of thirteen, was under sixteen years of age. The offence involved five related acts of indecency committed at the appellant's home, where he had taken the victim under the guise of friendship with her mother.

The appellant had a prior conviction for a similar offence, for which he had received a good behaviour bond. That bond had expired shortly before the present offence was committed. He appeared for sentence before Judge Geraghty in the District Court.

The appeal to the Court of Criminal Appeal challenged the sentence as manifestly excessive. A particular issue arose from the sentencing judge's stated reasoning when applying the standard non-parole period regime, which had come into effect on 1 February 2003, covering offences of aggravated indecent assault.

  • Whether the sentence imposed was manifestly excessive in all the circumstances.
  • How the standard non-parole period under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 applies to offences of aggravated indecent assault, particularly where the case falls just below the mid-range of objective seriousness.
  • Whether pre-2003 Judicial Commission sentencing statistics remain a reliable guide to the range of appropriate sentences for offences committed after 1 February 2003.
  • Whether an apparent mathematical or reasoning error in the sentencing judge's calculation of the non-parole period warranted intervention.

Decision

The Court granted leave to appeal but dismissed the appeal. While Hunt AJA identified an error in the sentencing judge's process of reasoning regarding the non-parole period calculation, the sentence itself was not found to be manifestly excessive. The Court concluded that, even if the error had produced an unintended three-month reduction in the non-parole period, re-sentencing would not result in a lesser sentence given the overall circumstances.

The Court confirmed that the introduction of the standard non-parole period regime under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 signals a legislative intention to increase sentencing levels for aggravated indecent assault across the board. The standard non-parole period is set at approximately 71.5 per cent of the maximum sentence, well above the median range reflected in pre-2003 statistics. That disparity itself indicates the legislature intended the pattern of sentencing to move upward for this category of offence.

As a consequence, pre-2003 Judicial Commission sentencing statistics are of very limited assistance for offences committed after 1 February 2003. The standard non-parole period functions as a reference point not only for cases to which it directly applies, but also for all offences of aggravated indecent assault more generally, reinforcing the upward legislative intention throughout the range.

Hunt AJA also noted that several findings made by the sentencing judge in the appellant's favour were generous, and might not withstand scrutiny if the matter were to be re-sentenced. On that basis, it was not appropriate to intervene and substitute a lesser sentence under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 constitutes a legislative signal that sentences for aggravated indecent assault should be higher than pre-2003 patterns would suggest.
  • Pre-2003 Judicial Commission statistics are of very limited use as a sentencing guide for offences of aggravated indecent assault committed after 1 February 2003, given the legislature's evident intention to increase sentences for this category of offence.
  • A standard non-parole period applies as a reference point not only where it directly governs a sentence, but also for all other offences of aggravated indecent assault to which the non-parole period does not strictly apply.
  • An error in a sentencing judge's stated reasoning does not automatically warrant intervention on appeal: where the overall sentence is not manifestly excessive, and where re-sentencing might expose the offender to less favourable findings, the Court may decline to substitute a different sentence.
  • Upholding the sentence here, the Court observed that the appellant had been treated generously in several respects by the sentencing judge, a factor relevant to the exercise of the discretion under s 6(3) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4 (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Civil Liability Act 2002 (NSW)

Cases:
- Regina v Davies [2004] NSWCCA 319
- Regina v Pellew [2004] NSWCCA 434
- Regina v Porteous [2005] NSWCCA 115
- Regina v Thomson & Houlton (2002) 49 NSWLR 383
- Regina v Way (2004) 60 NSWLR 168