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7
Court of Criminal Appeal 30 August 2006

D A C v Regina

[2006] NSWCCA 265

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCING JUDGE INCORRECTLY APPLIES STANDARD NON PAROLE PERIOD

Citation: D A C v Regina [2006] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 30 August 2006
Judges: Tobias JA, Howie J, Rothman J

Background

The applicant, an Aboriginal youth aged 14 years and 5 months at the time of the offending, was convicted after trial in the District Court of aggravated robbery, break and enter with intent, and aggravated attempt to commit sexual intercourse without consent. All three offences arose from a single incident in March 2003 involving a 78-year-old victim. The applicant had no prior criminal record at the time of sentencing.

At sentencing, the District Court judge imposed a fixed term of four years for the robbery count, three years concurrently for the break and enter, and eight years with a five-year non-parole period for the attempted sexual assault count. The judge believed a standard non-parole period applied to the attempt offence and, while departing downward from it, treated it as the starting point.

The applicant sought leave to appeal against the sentence imposed on the fourth count, arguing that the judge had erred by applying a standard non-parole period to an offence that did not attract one.

  • Whether the offence of aggravated attempt to commit sexual intercourse without consent (under ss 61J and 61P of the Crimes Act 1900) was subject to a standard non-parole period under Division 1A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge's erroneous application of the standard non-parole period framework caused a miscarriage in the exercise of the sentencing discretion
  • How s 19 of the Children (Criminal Proceedings) Act 1987, which governs the conditions under which a juvenile offender may continue to serve a sentence in a juvenile detention facility, applied to the proposed revised sentence

Decision

The Crown conceded that the offence under s 61P (attempt to commit an offence under s 61J) did not appear in the table of standard non-parole period offences in s 54D of the Crimes (Sentencing Procedure) Act. The Court of Criminal Appeal accepted this concession, noting that the original standard non-parole period legislation deliberately excluded attempt offences (other than attempt murder), and that a subsequent referral to the Sentencing Council had not resulted in any amendment.

Howie J, with whom Tobias JA and Rothman J agreed, found that the judge's mistaken belief that a standard non-parole period applied had infected the sentencing exercise, even though the judge had departed downward from it. The non-parole period of five years on the fourth count was therefore open to review.

The Court then turned to s 19 of the Children (Criminal Proceedings) Act 1987, a provision that had not been addressed by the sentencing judge or by either party on appeal. That section restricts the circumstances in which a person may continue serving a sentence as a juvenile offender after turning 18, and sets a general limit linked to turning 21. The Court found that the original five-year non-parole period, expiring in May 2010, could not have operated as intended under s 19 because the applicant's eighteenth birthday fell well before that date. The Court found special circumstances existed, namely the applicant's age at the time of offending and his moderate level of intellectual disability, justifying a direction that he serve his sentence as a juvenile offender for as long as the Act permitted.

The revised non-parole period was set at four years, expiring 30 May 2009. This brought the sentence into conformity with s 19 and ensured the applicant remained in a juvenile detention environment where he had been assessed as compliant with supervision and suitable for a sex offenders programme.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in respect of the non-parole period on the fourth count
  • The non-parole period of five years on the fourth count quashed
  • In substitution, a non-parole period of four years imposed, expiring 30 May 2009
  • Court directed that the applicant serve his sentence prior to release to parole as a juvenile offender

Key Takeaways

  • An offence of attempt to commit aggravated sexual assault under s 61P of the Crimes Act 1900 does not carry a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999, because attempt offences (other than attempt murder) were deliberately excluded from the relevant table.
  • Where a sentencing judge treats an inapplicable standard non-parole period as a benchmark, even while departing from it, that approach can constitute an error infecting the exercise of the sentencing discretion.
  • Section 19 of the Children (Criminal Proceedings) Act 1987 imposes constraints on how long a juvenile offender can serve a custodial sentence in a juvenile facility after turning 18, and a non-parole period that expires well beyond the offender's eighteenth birthday may be inconsistent with the operation of that provision.
  • Special circumstances sufficient to justify continued detention as a juvenile offender can be found in a combination of young age at the time of offending and a diagnosed moderate intellectual disability.
  • Appellate courts may address statutory provisions relevant to a sentence even where neither party raised them below or on appeal, where the provisions are clearly engaged by the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61P, 95, 105A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D and Division 1A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 19

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Hammoud (2000) 118 A Crim R 66
- Pearce v The Queen (1998) 194 CLR 610
- R v AEM [2002] NSWCCA 58
- R v Gorman [2002] NSWCCA 516
- R v AN [2005] NSWCCA 329