Citation: Harrison v Regina [2006] NSWCCA 185
Court: New South Wales Court of Criminal Appeal
Date: 19 June 2006
Judges: McClellan CJ at CL, Hall J, Latham J
Background
The applicant pleaded guilty in the District Court to two serious offences committed on the same night in January 2002. The first was maliciously inflicting actual bodily harm on a woman with intent to have sexual intercourse with her, contrary to section 61K(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The second was aggravated sexual assault in company, contrary to section 61JA(1)(c)(iii), which carries a maximum penalty of life imprisonment.
The offences involved the applicant and his co-offender attacking a woman on a street in Newtown and attempting to force her into a car, causing her significant injuries. Shortly afterwards, the pair picked up a 19-year-old woman working as a street prostitute, concealed the co-offender in the back seat, and repeatedly raped her at a park in Beverley Hills after depriving her of her liberty.
The applicant was sentenced in the District Court on 12 April 2005, receiving a fixed term of three years for the first offence and a non-parole period of seven years with an additional term of two years for the second. He sought leave to appeal on four grounds, including failure to find special circumstances, improper accumulation of sentences, failure to account for pre-sentence custody, and manifest excess.
Legal Issues
- Whether the sentencing judge erred in failing to find "special circumstances" justifying departure from the standard statutory ratio between non-parole period and total sentence
- Whether the sentencing judge's failure to expressly address individual matters going to hardship constituted appellable error
- Whether the sentencing judge properly took pre-sentence custody into account, and whether the sentences should have been backdated
- Whether the sentences were manifestly excessive having regard to the applicant's personal circumstances, prospects of rehabilitation, and likelihood of re-offending
Decision
On the special circumstances ground, the Court found that the sentencing judge had given thorough attention to the facts said to support a finding of hardship when determining the appropriate sentence. The decision as to whether special circumstances exist is both a question of fact and one of judgment. The absence of an express reference to the statutory ratio does not, without more, indicate that a sentencing judge intended to impose a non-parole period in strict accordance with that ratio.
On the pre-sentence custody ground, the Court upheld the appeal. A sentencing judge must not only take pre-sentence custody into account but must express the sentence in terms that make plain how that custody has been factored in. The sentencing judge had noted the applicant had spent five or six days in custody before sentence, but the sentences were not backdated to reflect this. The Court found that the sentences should have commenced from 7 April 2005, the date the applicant was taken into custody, not 12 April 2005, the date of sentencing.
On manifest excess, the Court rejected the applicant's argument. The evidence concerning rehabilitation and likelihood of re-offending was equivocal. A psychologist's report identified risk factors including lack of insight, immaturity, and inadequate impulse control, alongside some protective factors. In those circumstances, the sentencing judge was not required to make findings favourable to the applicant on those matters, and no error was established.
Orders Made
- Leave to appeal granted
- Appeal allowed to the extent of backdating the sentences:
- Count 1: fixed term of three years commencing 7 April 2005, expiring 6 April 2008
- Count 2: non-parole period of seven years commencing 7 April 2007, expiring 6 April 2014, with an additional term of two years expiring 6 April 2016
- Earliest date of eligibility for release on parole: 7 April 2014
Key Takeaways
- A sentencing judge must not only state that pre-sentence custody has been taken into account but must express the sentence in terms that make plain how it has been factored in. Backdating to the date of remand is the appropriate mechanism.
- The absence of an express reference to the statutory non-parole ratio does not, by itself, establish that a sentencing judge departed from or ignored that ratio.
- Where evidence about rehabilitation prospects and risk of re-offending is conflicting or equivocal, a sentencing court is not required to resolve those conflicts in the offender's favour.
- The determination of whether special circumstances exist is both a factual and a discretionary judgment. Failure to enumerate every factor individually does not constitute appellable error where the sentencing judge has demonstrably engaged with the relevant material.
- In dismissing the manifest excess ground, the Court confirmed that comparable sentences imposed in cases such as R v Hoang and R v Aslett supported the overall sentencing outcome for aggravated sexual assault in company.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61K(a), 61JA(1)(c)(iii)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Edwards (1996) 90 A Crim R 510
- R v Bednarz [2000] NSWCCA 533
- R v Grbin [2004] NSWCCA 220
- R v Simpson (2001) 53 NSWLR 704
- R v Cramp [2004] NSWCCA 264
- R v Smith [2005] NSWCCA 19
- R v Gill [2002] NSWCCA 93
- R v Nikolovski [2005] NSWCCA 60
- R v Parker [2003] NSWCCA 270
- R v Clissold [2002] NSWCCA 356
- R v McHugh (1985) 1 NSWLR 588
- R v Deeble (CCA, unreported, 19 September 1991)
- Derron v R [2006] NSWCCA 73
- R v Wickham [2004] NSWCCA 193
- R v Atonio [2005] NSWCCA 220
- R v Hoang [2003] NSWCCA 380
- R v Aslett [2006] NSWCCA 48