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Court of Criminal Appeal 2 December 2005

Tidona v Regina

[2005] NSWCCA 410

Sexual offences
SENTENCE APPEAL USE OF STANDARD NON PAROLE PERIOD WHEN PLEA OF GUILTY ERROR IN USING STANDARD NON

Citation: Tidona v Regina [2005] NSWCCA 410
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Simpson J, Adams J, Hoeben J (Hoeben J delivering the principal judgment)

Background

The appellant was an elderly man of Sicilian origin, aged 67 at the time of the principal offence, who had committed two separate acts of indecency against young female neighbours in 2002 and 2003. The first offence, committed in November 2002, resulted in a conviction in the Local Court in February 2003 and a one-year good behaviour bond. The second and more serious offence, an aggravated indecent assault on a 12-year-old girl in August 2003, was committed while that bond was on foot.

The appellant pleaded guilty to the aggravated indecent assault charge on the first day of trial. He was sentenced in the Campbelltown District Court in December 2004 by Gibb DCJ, who imposed a non-parole period of 3 years and 11 months and a balance term of 1 year and 3 months, giving a total head sentence of approximately 5 years and 2 months. He was also resentenced for the earlier offence, receiving a fixed 12-month term.

The appellant sought leave to appeal both sentences, arguing they were excessive and that the sentencing judge had made a methodological error in her approach.

  • Whether the sentencing judge erred by using the standard non-parole period (the legislatively prescribed benchmark for mid-range offending) as a starting point for constructing the sentence, rather than as a reference point to be considered in the overall sentencing exercise
  • Whether the sentencing judge erred in taking prior convictions into account as an aggravating factor in circumstances where the prior conviction had already been factored into a separate sentence
  • Whether the balance between the non-parole period and the balance of sentence was appropriate, having regard to the appellant's age, health, and other circumstances warranting supervision on parole

Decision

The Court of Criminal Appeal found that the overall length of the sentence imposed for the aggravated indecent assault was within the appropriate range, given the objective seriousness of the offence, the aggravating features identified, and the considerations of general and specific deterrence. The court did not disturb the conclusion that a substantial term of imprisonment was warranted.

However, the court identified a methodological error in the way the sentencing judge had structured the sentence. Her Honour had used the standard non-parole period as a starting point and then built the sentence around it, rather than engaging in a holistic assessment. This approach deprived her of the opportunity to step back and assess the appropriate balance between the head sentence and the non-parole period.

The court found that several factors constituted special circumstances justifying a departure from the statutory ratio between the head sentence and the non-parole period. These included the appellant's advanced age, his poor physical and mental health, the fact that he was experiencing his first period of imprisonment at an elderly age, and the identified need for psychiatric and psychological intervention. A longer period on parole under Probation and Parole Service supervision was therefore appropriate.

On the question of prior convictions, the court's reasoning did not separately overturn that finding, but the resentencing itself corrected the structural imbalance. The sentence for the earlier Local Court offence was also adjusted, with the fixed term reduced to 6 months, noting that while the original term had already been served, a different sentence had been warranted in law.

Orders Made

  • Leave to appeal against the severity of sentence granted
  • Appeal allowed; sentences imposed by Gibb DCJ on 10 December 2004 quashed
  • For the aggravated indecent assault offence (s 61M(1)): non-parole period of 3 years commencing 5 September 2003 and expiring 4 September 2006, with a balance term of 2 years and 2 months commencing 5 September 2006 and expiring 4 November 2008
  • For the act of indecency offence (s 61N(1)): fixed term of imprisonment of 6 months commencing 5 September 2003 and expiring 4 March 2004

Key Takeaways

  • Using the standard non-parole period as the structural starting point for constructing a sentence constitutes a methodological error; the standard non-parole period is a legislative guidepost to be considered in context, not a foundation on which to build the sentence upward or downward
  • Where a sentencing court treats the standard non-parole period as a starting point, it risks failing to undertake the holistic assessment of the appropriate head sentence and non-parole period that the law requires
  • Special circumstances justifying a departure from the statutory ratio between head sentence and non-parole period can include an offender's advanced age, poor physical and mental health, the fact of a first period of imprisonment at an elderly age, and identified therapeutic needs requiring post-release supervision
  • The Court of Criminal Appeal confirmed that the overall sentencing outcome here was within range despite the methodological flaw, demonstrating that a sentencing error will not automatically produce a lesser sentence where the total term remains appropriate
  • Under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, a fixed sentence for an earlier offence dealt with on breach of a good behaviour bond should be calculated by reference to the jurisdictional limit of the original court, not by reference to the higher maximum applicable in a superior court

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61N(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 98(1)(c), 99(1)(q)

Cases:
- Markarian v R [2005] 79 ALJR 1048
- R v Fisher (1989) 40 A Crim R 442
- R v Groat [2001] NSWCCA 452
- R v Hofer [2001] NSWCCA 544
- R v Johnson [2004] NSWCCA 76
- R v McGouty [2002] NSWCCA 335
- R v Misiepo [2005] NSWCCA 405
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193
- Ryan v The Queen (2001) 206 CLR 267
- Veen v The Queen (No 2) (1998) 164 CLR 465