Citation: FINA'I v REGINA [2006] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 27 April 2006
Judges: McClellan CJ at CL, Rothman J, Smart AJ
Background
The appellant was the stepfather of the complainant, who was nine years old at the time of the first six offences and twelve at the time of the seventh. The offences occurred on three separate occasions and included aggravated indecent assault and sexual intercourse with a child under ten, as well as one count of aggravated indecent assault when the complainant was older. The appellant entered guilty pleas to all counts.
In the District Court, Phegan DCJ sentenced the appellant across eight counts (count three being an alternative to count four), with sentences partially accumulated to produce an overall non-parole period of seven years and a balance of term of two years. The individual sentences ranged from fixed terms of nine months to four years, with the sentences on counts six, seven, and eight commencing after the earlier sentences had expired.
The appellant sought leave to appeal against the severity of those sentences, raising several grounds relating to the structure of the sentences and the treatment of special circumstances and rehabilitation.
Legal Issues
- Whether the sentencing judge erred by having regard to an irrelevant consideration in applying section 54A of the Crimes (Sentencing Procedure) Act 1999 when partially accumulating the sentences
- Whether the sentencing judge failed to give effect to a finding of special circumstances, particularly in relation to the need for rehabilitation and supervision on parole
- Whether the overall sentences were manifestly excessive given the guilty plea, the objective seriousness of the offences, and the appellant's commitment to rehabilitation
- Whether the accumulation of sentences itself constituted a special circumstance that required adjustment to the ratio of non-parole period to balance of term
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeals against sentences on counts one, two, four, five, six, and seven. The court found no appellable error in the sentencing judge's approach to those counts, accepting that the objective seriousness of the offences, the gross abuse of trust, and the significant trauma caused to the complainant warranted the sentences imposed.
On count eight, the court allowed the appeal in part. The central issue was whether the sentencing judge had properly given effect to his finding of special circumstances. The judge had found special circumstances based primarily on the appellant's commitment to rehabilitation and the need for an extended period of supervision on parole, but the court identified a structural inconsistency: the non-parole period on count eight, as originally set, did not adequately reflect the ratio required once the accumulation of sentences was taken into account.
Smart AJ, writing separately, identified the accumulation of sentences as itself a special circumstance warranting adjustment of the sentence on count eight. By aggregating the non-parole periods across all counts, the ratio of non-parole period to total sentence exceeded the standard three-quarters proportion. The adjustment to count eight was required to bring the overall structure into proper conformity with the principle that the balance of term should represent roughly one third of the non-parole period.
The court agreed that a total parole period of two years, as originally envisaged by the sentencing judge, remained appropriate. The correction to count eight did not change the overall period the appellant would spend in custody but corrected the internal structure of the sentence on that count.
Orders Made
- Leave to appeal against sentences granted
- Appeals against sentences on counts 1, 2, 4, 5, 6, and 7 dismissed
- Appeal against sentence on count 8 allowed in part; sentence on count 8 quashed
- In lieu of the sentence on count 8, the appellant was sentenced to a non-parole period of 9 months commencing 1 April 2011 and expiring 31 December 2011, with a balance of term of 2 years and 3 months commencing 1 January 2012 and expiring 31 March 2014
Key Takeaways
- The Court of Criminal Appeal confirmed that the partial accumulation of sentences can itself constitute a special circumstance under the Crimes (Sentencing Procedure) Act 1999, warranting adjustment of the non-parole period to maintain a proper ratio between custodial and parole components across an aggregate sentence.
- Where a sentencing judge finds special circumstances but the resulting sentence structure does not give proper effect to that finding, an appellate court may intervene to correct the internal ratio of non-parole period to balance of term, even where the total period in custody remains unchanged.
- Guilty pleas, commitment to rehabilitation, and expressed remorse are relevant mitigating factors in child sexual assault sentencing, but the court confirmed these do not automatically compel a reduction in the overall sentence where the objective gravity of the offences is high.
- A gross abuse of a position of trust, particularly by a step-parent offending against a young child in the family home, is a significant aggravating factor that courts will weigh heavily in assessing objective seriousness.
- In dismissing most grounds of appeal, the court affirmed that the sentencing judge's careful attention to totality and the principle of partial accumulation did not constitute error, and that a two-year parole period was sufficient to accommodate the rehabilitation needs identified.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Cases:
- Michael Gordon Simpson (1992) 61 A Crim R 58
- R v Bolamatu [2002] NSWCCA 454
- R v Close (1993) 31 NSWLR 743
- R v Heather May Attard [2004] NSWCCA 376
- R v Keen [2004] NSWCCA 86
- R v LWP [2003] NSWCCA 215
- R v Ohar (2004) 59 NSWLR 596
- R v Sharrock [1999] NSWCCA 289
- R v Street [2005] NSWCCA 139
- R v Swan [2005] NSWCCA 252
- R v Thornberry [2000] NSWCCA 526