AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 5 April 2006

Blinco v Regina

[2006] NSWCCA 105

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE RESENTENCE REQUIRED

Citation: Blinco v Regina [2006] NSWCCA 105
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2006
Judge(s): Grove J, Simpson J, Howie J

Background

The appellant pleaded guilty in the Local Court to a single count of indecent assault on a person under the age of ten years. The victim was his nine-year-old daughter, and the offence involved the appellant touching her vagina while intoxicated at home late at night. The mother discovered the appellant and the child and left the home with all four children.

The matter was sentenced in the District Court at Penrith by Bishop DCJ, who imposed a total sentence of four years and nine months with a non-parole period of two years and nine months. The appellant sought leave to appeal on grounds of severity, and the Crown itself conceded that error had occurred in the way the non-parole period was determined.

  • Whether the sentencing judge erred by setting the non-parole period independently of the balance of term, rather than considering the two components together
  • Whether the sentencing judge took impermissible factors into account when assessing where the offence fell in the range of objective seriousness
  • Whether the total sentence warranted intervention and resentencing by the Court of Criminal Appeal

Decision

The Court of Criminal Appeal identified two distinct errors in the District Court's approach. First, Bishop DCJ assessed the non-parole period as a discrete figure and then set the balance of term separately and independently. That approach is impermissible. Consistent with R v Moffitt (1990) and confirmed in R v Way (2004), the non-parole period and balance of term must be considered together, not in a sequential two-step process where one figure is fixed before the other is assessed.

Second, the sentencing judge accepted submissions that the offence fell below the mid-range of objective seriousness partly because of the early guilty plea and the absence of penetration. Both factors were impermissible in that context. A plea of guilty is a subjective matter personal to the offender and cannot affect where an offence sits in the objective range of seriousness. The absence of penetration was also irrelevant, given that penetration would have constituted an entirely different and more serious offence.

Despite these errors, the Court agreed with the underlying conclusion that the offence fell below the mid-range of objective seriousness, though for proper reasons. Those reasons included the impulsive and opportunistic nature of the offence, the offender's significant intoxication, his immediate expression of remorse, his frank admissions to police, and the absence of any prior sexual or violent offending.

The Court resentenced the appellant to a total of three years imprisonment (reduced by 25 percent from four years to reflect the early guilty plea), with special circumstances found to allow for extended post-release supervision to monitor the effects of alcohol counselling. A non-parole period of one year six months was set, with a balance term of one year six months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to imprisonment comprising a non-parole period of one year six months commencing 28 November 2004 and expiring 27 May 2006, with a balance term of one year six months commencing 28 May 2006 and expiring 27 November 2007
  • Appellant ordered released to parole on 27 May 2006

Key Takeaways

  • A sentencing judge must not fix the non-parole period as an immutable figure before independently determining the balance of term. Both components must be considered together or simultaneously, consistent with the principles in R v Moffitt and R v Way.
  • A guilty plea, however early, is a subjective mitigating factor and cannot be used to determine where an offence sits within the range of objective seriousness. Objective seriousness is assessed by reference to the objective features of the offending alone.
  • Comparing an offence to a more serious offence that was not charged is equally impermissible as a basis for reducing the assessed objective seriousness of the offence actually before the court.
  • Where a sentencing error is established, the Court of Criminal Appeal will resentence the offender afresh, taking all relevant factors into account, including conduct and rehabilitative progress since the original sentence.
  • Under s 50 of the Crimes (Sentencing Procedure) Act 1999, a court's power to order release to parole at the sentencing stage is limited to sentences of three years or less. The District Court's order for parole release was also irregular for this reason.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 50, 54A(2), 54D

Cases:
- O'Connell v R [2006] NSWCCA 82
- R v GDR (1994) 35 NSWLR 376
- R v Jammeh [2004] NSWCCA 32
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Way (2004) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193