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59
Court of Criminal Appeal 6 September 2006

MLP v Regina

[2006] NSWCCA 271

Also reported as (2006) 164 A Crim R 93
Sexual offences
CRIMINAL PRACTICE & PROCEDURE ISOLATED ACT OFFENCE INVOLVES PERSON UNDER AGE 10 ISSUES WHEN STANDARD NON PAROLE PERIOD ERROR IN APPROACH.

Citation: MLP v Regina [2006] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 6 September 2006
Judge(s): Grove J, Kirby J, Hislop J

Background

The appellant (referred to throughout as "MLP") was the father of the complainant, a nine-year-old girl, and was convicted by a District Court jury of one count of sexual intercourse with a person under the age of 10 years under s 66A of the Crimes Act 1900. The offence occurred during a camping trip when MLP was caring for his three young children. The jury acquitted MLP on a separate count involving the same child at age seven.

Garling DCJ sentenced MLP to 16 years imprisonment with a non-parole period of 12 years. The sentencing judge characterised the offence as falling in the middle of the range of objective seriousness, which corresponded to the prescribed standard non-parole period of 15 years for this offence type.

MLP sought leave to appeal the sentence on several grounds, contending that the sentencing judge had misapplied the standard non-parole period framework and had failed to properly account for the victim's age (nine, approaching the upper limit of the offence) and the isolated nature of the offending.

  • Whether the sentencing judge erred by placing the offence in the middle range of objective seriousness for a s 66A offence, given the complainant was nine years old at the time
  • Whether the isolated nature of the offending was a relevant factor that should have taken the offence below the mid-range
  • Whether the non-parole period was disproportionate given a finding of special circumstances
  • Whether the sentence was manifestly excessive overall

Decision

The Court of Criminal Appeal found that the sentencing judge erred in his approach to the standard non-parole period. The error lay in failing to give adequate weight to the victim's age and the isolated nature of the offending when assessing where the offence fell within the range of objective seriousness. Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period serves as a reference point for a mid-range offence; departure from it requires identification of factors above or below the mid-point.

The Court held that while the victim's age cannot be used as an additional aggravating factor (since being under 10 is an element of the offence), it is properly considered in assessing objective seriousness within the offence category. A victim aged nine, near the ceiling of the offence's age range, is a distinct sentencing consideration from a much younger victim. The isolated nature of the offending was also a relevant mitigating consideration that the sentencing judge failed to adequately account for.

Notwithstanding those errors in the approach taken below, the Court concluded that the total term of 16 years imprisonment was appropriate and confirmed it. Kirby J arrived at the same result by a different path, finding that the sentence was justified once all relevant factors, including the gravity of the offending and the appellant's personal circumstances (including health problems and the need to serve the sentence in protection), were properly weighed. Special circumstances were found to exist, warranting a reduction in the statutory ratio between sentence and non-parole period.

The non-parole period was reduced from 12 years to 11 years to reflect the finding of special circumstances, including the appellant's health conditions (Hepatitis C, rheumatoid arthritis, and chronic fatigue), his need for protection custody, and his reasonable prospects of rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of 16 years imprisonment confirmed; non-parole period varied to 11 years, commencing 12 May 2005 and expiring 11 May 2016

Key Takeaways

  • Under the standard non-parole period regime in the Crimes (Sentencing Procedure) Act 1999, a sentencing court must identify where an offence falls within the full range of objective seriousness before applying the standard non-parole period as a reference point.
  • Although a victim's age cannot be used as a separate aggravating factor where age is an element of the offence, the victim's specific age remains relevant to assessing objective seriousness within the offence category, including its position relative to the category's age range.
  • An isolated act of offending is a relevant mitigating consideration capable of placing an offence below the mid-range of objective seriousness for standard non-parole period purposes.
  • Errors in sentencing methodology do not automatically result in a reduced total sentence; the Court of Criminal Appeal confirmed the 16-year head sentence while correcting the non-parole period.
  • A finding of special circumstances, supported by factors such as serious health conditions and the need to serve time in protection, can justify departing from the standard statutory ratio between the head sentence and the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Division 1A
- Criminal Appeal Act 1912 (NSW)

Cases:
- Regina v AJP (2004) 150 A Crim R 575
- Shannon v Regina [2006] NSWCCA 39
- FV v Regina [2006] NSWCCA 237
- R v Way (2004) 60 NSWLR 168
- R v Trevenna [2004] NSWCCA 43
- R v George [2004] NSWCCA 247
- Power v The Queen (1974) 131 CLR 623
- Bugmy v The Queen (1990) 169 CLR 525
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- Ibbs v The Queen (1987) 163 CLR 447
- R v Davis [1999] NSWCCA 15