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79
Court of Criminal Appeal 5 September 2006

Regina v MMK

[2006] NSWCCA 272

Also reported as (2006) 164 A Crim R 481
Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING APPEAL CROWN APPEAL AGAINST SENTENCE

Citation: Regina v MMK [2006] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 5 September 2006
Judge(s): Spigelman CJ, Whealy J, Howie J

Background

The respondent, a young man aged 19 at sentencing, pleaded guilty before Hidden J in the Supreme Court to one count of having sexual intercourse with a child aged between 10 and 16 years (the victim, aged 13, had consented, but consent is no defence to this offence). Two further offences, an aggravated indecent assault and a common assault against a different complainant, were placed before the court on a Form 1 (a mechanism allowing a sentencing court to take additional offences into account without recording separate convictions).

The respondent was already serving a substantial sentence imposed by Sully J in 2004: a total term of 22 years with a non-parole period of 13 years, for nine counts of aggravated sexual assault in company. His earliest parole eligibility date was 31 July 2015. Hidden J sentenced the respondent to a fixed term of one year, ordered to run fully concurrently with the existing sentence, meaning it was entirely subsumed within it and added nothing to the period to be served.

The Crown appealed, arguing that ordering full concurrency was an error that rendered the sentence manifestly inadequate. The Crown did not challenge the length of the one-year term itself, only the decision to make it wholly concurrent.

  • Whether Hidden J erred by ordering the sentence to run fully concurrently with the existing sentence, resulting in a term that added nothing to the overall period of imprisonment
  • Whether Hidden J placed excessive weight on the respondent's subjective circumstances
  • Whether Hidden J erred by failing to treat prior convictions (recorded by Sully J for offences occurring later in time than those before Hidden J) as relevant to the question of leniency
  • Whether Hidden J erred in rejecting the Crown's submission that the victim's vulnerability was an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal dismissed the Crown's appeal in its entirety, finding no demonstrated error in Hidden J's exercise of sentencing discretion.

On the central issue of concurrency, the Court held that the principle of totality was directly engaged. Given the severity of the sentences already imposed by Sully J and their purpose in addressing those very serious offences, it was well within Hidden J's discretion to conclude that the principle of totality required the new sentence to run fully concurrently, so as not to extend the respondent's parole eligibility beyond 2015. The Court drew on the joint judgment in Makarian v The Queen (2005) 79 ALJR 1048, emphasising that sentencing is a discretionary exercise and that there is no single correct outcome, provided the sentencer takes into account all relevant considerations and only those considerations.

The Crown's specific grounds of error were not accepted. The Court found that Hidden J's approach to the respondent's subjective features, his treatment of the prior convictions, and his rejection of the vulnerability aggravating factor all fell within the permissible range of discretionary decision-making. No identifiable legal error was established that would warrant intervention by the appellate court.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the principle of totality can justify ordering a new sentence to run fully concurrently with an existing sentence, even where the result is that the new sentence is entirely subsumed and adds nothing to the period to be served.
  • A Crown appeal against sentence requires demonstration of an error in the exercise of discretion; the mere fact that a sentence is lenient, or that another approach was open, does not establish appellate error.
  • Under the Crimes (Sentencing Procedure) Act 1999, the sentencing court retains significant flexibility in weighing aggravating factors such as victim vulnerability, and a decision not to apply such a factor will not be overturned without demonstrated legal error.
  • The relationship between s 3A of the Crimes (Sentencing Procedure) Act (which sets out the purposes of sentencing) and the common law totality principle requires a sentencer to balance those statutory purposes against the overall justness of the total sentence actually to be served.
  • Prior convictions for offences that occurred after the offences being sentenced were treated as a consideration that Hidden J was entitled to assess in context, rather than as an automatic bar to lenient treatment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61AJ, 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)

Cases:
- Makarian v The Queen (2005) 79 ALJR 1048
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 78 ALJR 616
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v Tadrosse [2005] NSWCCA 145
- R v Ibrahimi [2005] NSWCCA 153
- R v MA [2004] NSWCCA 92
- R v Janceski (No. 2) [2005] NSWCCA 288
- R v Holder (1983) 3 NSWLR 245
- R v Brown [1999] NSWCCA 323
- R v Gorman (2002) 137 A Crim R 326
- R v Hammoud (2000) 118 A Crim R 66