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Court of Criminal Appeal 16 September 2005

Regina v O

[2005] NSWCCA 327

Sexual offences

Citation: Regina v O [2005] NSWCCA 327
Court: Court of Criminal Appeal, New South Wales
Date: 16 September 2005
Judge(s): Sully J, Hidden J, Hall J

Background

The respondent, whose identity is suppressed by court order, was convicted following two jury trials in the District Court in July 2004 and a subsequent guilty plea in October 2004. The offences involved serious sexual assaults against three child victims, referred to in the proceedings as KW, JS, and TS. The offences included digital penetration of a young girl on two separate occasions (when she was aged 5 or 6 and again at age 8), and the repeated touching of a nine-year-old boy's penis while he was in the respondent's bed.

At sentencing in April 2005, Williams DCJ structured the sentences so that the overall effective head sentence was four years, with an effective non-parole period of two years, both commencing on 28 July 2004. The Crown appealed, contending the total sentence was manifestly inadequate having regard to the objective gravity of the offending and the need for deterrence.

The Court of Criminal Appeal was therefore asked to consider whether the District Court's sentencing outcome miscarried, and if so, what sentence should be imposed in lieu.

  • Whether the sentences imposed by the District Court were manifestly inadequate in light of the nature and number of the offences.
  • Whether insufficient accumulation of individual sentences produced an overall sentence that failed to reflect the gravity of the offending.
  • Whether, even if error was established, the Court should exercise its residual discretion not to intervene, given the respondent's age and health.

Decision

The majority (Sully J and Hall J) allowed the Crown appeal, finding the sentences imposed in the District Court were manifestly inadequate. The primary concern was that the sentencing judge had not imposed a sufficient degree of accumulation across the individual sentences, resulting in an overall term that did not adequately reflect the cumulative seriousness of the offending against multiple child victims over multiple occasions.

Sully J acknowledged, however, that the principles governing Crown appeals impose real constraints on the extent of re-sentencing. The respondent's age and health were also relevant mitigating circumstances. As a result, the increase the majority was able to impose was necessarily modest: an effective head sentence of five years (up from four) and an effective non-parole period of two and a half years (up from two).

Hidden J dissented. His Honour accepted that the overall sentence was manifestly inadequate due to insufficient accumulation, but concluded that the adjustments the majority proposed were so modest that it was not appropriate to allow the Crown appeal for that purpose alone. Taking into account the respondent's age and health, Hidden J would have exercised the Court's residual discretion to dismiss the appeal.

Hall J agreed with Sully J without further elaboration.

Orders Made

  • Crown appeal against sentence allowed (by majority).
  • Sentences passed in the District Court quashed.
  • Respondent re-sentenced as follows:
  • On each of the two counts from the second indictment (aggravated indecent assault on JS): fixed term of 2 years, commencing 28 July 2004, expiring 27 July 2006.
  • On Count 4 from the first indictment (sexual intercourse with KW, jury verdict): fixed term of 2 years 6 months, commencing 28 July 2004, expiring 27 January 2007.
  • On the guilty plea count, taking into account the Form 1 offence (aggravated indecent assault on TS): 3 years imprisonment commencing 28 July 2006, expiring 27 July 2009, with a non-parole period of 6 months commencing 28 July 2006, expiring 27 January 2007.
  • Respondent to be released to parole on 28 January 2007.
  • Effective head sentence: 5 years (28 July 2004 to 27 July 2009).
  • Effective non-parole period: 2 years 6 months (28 July 2004 to 27 January 2007).

Key Takeaways

  • Insufficient accumulation of sentences across multiple counts involving multiple victims can render an overall sentencing outcome manifestly inadequate, even where individual sentences are not themselves excessive.
  • A Crown appeal against sentence does not automatically result in substantial re-sentencing. The Court of Criminal Appeal confirmed that well-established principles constrain the extent of any intervention on a Crown appeal, particularly where personal circumstances such as age and health carry mitigating weight.
  • Where the increase available on re-sentence is modest, the residual discretion not to intervene remains available to the appellate court, as Hidden J's dissent illustrates. The majority and minority in this decision disagreed not on whether error existed, but on whether the degree of correction justified allowing the appeal.
  • Under sections 66A and 61M(2) of the Crimes Act 1900 (NSW), the maximum penalties for the relevant offences were 20 years and 10 years imprisonment respectively, providing context for the Court's assessment that the original sentences fell short of an adequate response to the offending.
  • Non-publication orders protecting the identities of the respondent and all child victims were made and remain in force.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10 years, maximum 20 years imprisonment)
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault, maximum 10 years imprisonment)

Cases
- Reg v Dent (14 March 1991, unreported, NSW Court of Criminal Appeal)