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Court of Criminal Appeal 16 June 2005

Regina v Reyes

[2005] NSWCCA 218

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE HIGH LEVEL OF CRIMINALITY DISCLOSED CROWN APPEAL INADEQUACY OF SENTENCES DEMONSTRATED RESPONDENT RESENTENCED

Citation: Regina v Reyes [2005] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 16 June 2005
Judge(s): Wood CJ at CL, Grove J, Hoeben J

Background

The respondent was tried before Maguire DCJ and a jury in the Campbelltown District Court on a 31-count indictment involving serious sexual and associated offences against two female victims. He pleaded guilty to two counts and was convicted by the jury on a further 20. The offences included kidnapping, aggravated sexual assault, administering a stupefying drug (amphetamine by injection), indecent assault, obtaining benefit by deception, and stealing.

The facts were harrowing. The first victim, an 18-year-old, was abducted at knifepoint and detained for approximately 20 hours, during which she was repeatedly injected with amphetamine, subjected to multiple sexual assaults, restrained in handcuffs, blindfolded, and forced to surrender money from her ATM account. Days later, the respondent approached a 16-year-old near Liverpool Railway Station, falsely claiming to be an undercover police officer, and subjected her to similar treatment.

The original sentencing produced an effective total term of 13 years with a 10-year non-parole period. The Crown appealed under section 5D of the Criminal Appeal Act 1912, contending the sentences were manifestly inadequate.

  • Whether the original sentences were manifestly inadequate given the gravity and multiplicity of the offences
  • Whether the sentencing judge had properly considered the prescribed standard non-parole periods applicable to the relevant offences
  • Whether the respondent's refusal to acknowledge guilt could, by reason of its possible effect on the grant of parole, operate as a mitigating factor when assessing sentence

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentences imposed by the District Court were inadequate in light of the high level of criminality disclosed. The Court emphasised that the offending involved two vulnerable victims, sustained detention, the use of weapons and restraints, repeated drug administration, and multiple serious sexual assaults spanning different locations.

A specific error identified was the sentencing judge's failure to advert to the prescribed standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999. These legislative benchmarks are a mandatory consideration, and their omission represented an error in the sentencing exercise.

The Court also rejected the proposition that an offender's refusal to acknowledge guilt could serve as a mitigating factor in sentencing merely because that refusal might later impede the grant of parole. Grove J made clear that this was not a proper basis on which to moderate an assessed sentence downward. The respondent was resentenced by the Court.

The resentencing produced a significantly heavier outcome: an effective non-parole period of 15 years and a total sentence of 18 years, compared with the original 10-year non-parole period and 13-year total.

Orders Made

  • Crown appeal allowed
  • Respondent resentenced to an effective total sentence of 18 years imprisonment
  • Non-parole periods structured across multiple tranches, with the earliest parole eligibility date set at 9 May 2018
  • Key individual sentence components include:
  • Counts 3, 10, 17 and 18 (administering stupefying drug): 16 years total, 12-year non-parole period commencing 10 May 2005
  • Counts 6, 13, 14, 15, 16, 19, 20 and 23 (aggravated sexual assault, first victim): 13 years total, 10-year non-parole period commencing 10 May 2008
  • Counts 29 and 30 (aggravated sexual assault, second victim): 12 years total, 9-year non-parole period commencing 10 May 2009

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's failure to consider prescribed standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 constitutes a sentencing error, and can ground a successful Crown appeal.
  • A refusal by an offender to acknowledge guilt does not provide a basis to mitigate an assessed sentence, even where that refusal may later affect parole prospects.
  • Sentences that fail to reflect the cumulative gravity of sustained, multi-victim, multi-offence conduct will be susceptible to Crown appeal on the ground of manifest inadequacy.
  • In resentencing following a successful Crown appeal, the appellate court may impose substantially heavier sentences where the original terms are demonstrated to be inadequate across the sentencing exercise as a whole.
  • The totality principle (the requirement that the overall sentence reflect the total criminality without becoming crushing) does not prevent significant increases where the original sentence fails to capture a high level of sustained offending against multiple victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61J(1)(b), 61L, 86(1)(b), 94, 148, 178BA
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Bulut [2004] NSWCCA 325
- R v Gabriel (unreported, NSWCCA, 18 November 1994)
- R v Holder and Johnston (1983) 3 NSWLR 245
- R v Pellew [2004] NSWCCA 434
- R v Way (2004) 60 NSWLR 168