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Court of Criminal Appeal 28 April 2006

Doherty v R

[2006] NSWCCA 133

Sexual offencesDrugs
PLEAS OF GUILTY TWO COUNTS OF INDECENT ASSAULT SUPPLY PROHIBITED DRUG FORM 1 OFFENCES PRIOR CRIMINAL RECORD PRINCIPLES OF TOTALITY IN SENTENCING

Citation: Doherty v R [2006] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 28 April 2006
Judge(s): Grove J, Simpson J, Bell J

Background

The applicant pleaded guilty in the District Court at Parramatta to a serious series of offences committed against a 55-year-old widow in her home unit in the early hours of 25 July 2003. The offences included aggravated break and enter to commit a serious indictable offence, two counts of indecent assault, and three counts of aggravated sexual assault. A separate indictment dealt with a drug supply offence committed at a later time.

Delaney DCJ sentenced the applicant to an effective head sentence of 17 years with a non-parole period of 12 years. The sentences were substantially accumulated on one another. The drug offence sentence was inserted between the sentences for the first indictment offences, an arrangement whose rationale was not apparent from the sentencing remarks.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the overall sentence was manifestly excessive, primarily because of the degree of accumulation applied.

  • Whether the extent of accumulation of the sentences resulted in a manifestly excessive effective head sentence and non-parole period
  • Whether the sentencing judge had impermissibly relied upon the same aggravating factor (injuries to the complainant) to aggravate multiple offences, thereby risking duplication of punishment
  • Whether the principles of totality required a reduction in the overall sentence

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeals. Simpson J (with whom Grove J and Bell J agreed) found that the degree of accumulation was excessive and that the resulting overall sentence was manifestly excessive.

The Court noted that the same injuries to the complainant appeared to have been used as an aggravating circumstance in relation to four of the offences. While it was not necessary to decide this point finally, the Court considered it probable that this contributed to the excessive accumulation. The Crown itself acknowledged the risk of double counting and the need to guard against it, though it contended the total sentence remained appropriate given the seriousness of the offending.

The Court affirmed that questions of accumulation and concurrence are matters within the broad discretion of a sentencing judge, citing R v Hammoud. However, where the extent of accumulation produces a result that is manifestly excessive when assessed as a whole, appellate intervention is warranted. The Court corrected the error by adjusting the commencement dates of certain sentences and increasing the degree of concurrency, reducing the overall head sentence from 17 years to 15 years and the non-parole period from 12 years to 10 years.

Orders Made

  • Leave to appeal against each sentence granted
  • Appeals allowed; the applicant re-sentenced as follows:
  • Second indictment (drug supply, taking into account Form 1 offences): fixed term of one year commencing 7 November 2003, expiring 6 November 2004
  • Count 1, first indictment (aggravated break and enter, taking into account Form 1 offence): non-parole period of three years commencing 7 November 2004, expiring 6 November 2007; balance of term of four years expiring 6 November 2011
  • Counts 2 and 3, first indictment (indecent assault): fixed term of two years commencing 7 May 2006, expiring 6 May 2008
  • Count 4, first indictment (aggravated sexual assault): non-parole period of five years commencing 7 May 2006, expiring 6 May 2011; balance of term of four years expiring 6 May 2015
  • Counts 5 and 6, first indictment (aggravated sexual assault): non-parole period of six years commencing 7 November 2007, expiring 6 November 2013; balance of term of five years expiring 6 November 2018
  • Overall head sentence: 15 years; overall non-parole period: 10 years; earliest parole eligibility: 6 November 2013

Key Takeaways

  • Accumulation of sentences is a matter within a sentencing judge's discretion, but appellate courts will intervene where the extent of accumulation produces an effective total sentence that is manifestly excessive.
  • Where the same aggravating factor is relied upon across multiple counts, there is a real risk of duplication of punishment, and sentencing courts must exercise caution to avoid that outcome.
  • The Court of Criminal Appeal confirmed that the error identified here most probably arose from applying the complainant's injuries as an aggravating circumstance in relation to four separate offences, though this was not finally determined.
  • Correcting manifestly excessive accumulation does not require reducing individual head sentences for each count; adjusting commencement dates to increase concurrency can achieve an appropriate overall result.
  • Even where offences are very serious and heavy sentences are clearly warranted, the principle of totality requires that the overall sentence, viewed as a whole, remain proportionate and not result from impermissible double counting.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61J(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3; Part 4 Division 1A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66