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Court of Criminal Appeal 3 November 2006

Sheehan [No 2] v Regina

[2006] NSWCCA 332

Sexual offences
CRIMINAL PRACTICE & PROCEDURE CONVICTION CONFIRMED ON ONE COUNT OLD OFFENCE SENTENCE SENTENCE REDUCED.

Citation: Sheehan [No 2] v Regina [2006] NSWCCA 332
Court: New South Wales Court of Criminal Appeal
Date: 3 November 2006
Judge(s): Handley JA, Kirby J, Hoeben J

Background

The appellant had been convicted after a jury trial in the District Court on eight counts of sexual intercourse without consent with a child under 16, contrary to s 61D(1) of the Crimes Act 1900. The offences involved repeated abuse of his stepdaughter, committed between 1981 and 1986 when she was aged between six and eleven years old. The sentencing judge imposed concurrent fixed-term sentences on counts 1 through 7, together with a seven-year-six-month sentence (with a five-year non-parole period) on count 10, all commencing 22 November 2004.

In the first appeal (Sheehan v Regina [2006] NSWCCA 233), the Court of Criminal Appeal quashed the convictions on counts 1 to 7 and ordered a new trial on those counts. The conviction on count 10 was confirmed. The Court then invited submissions on whether the sentence for count 10, which had been structured as part of a global sentencing approach across all eight counts, had become anomalous and excessive now that the surrounding sentences had been set aside.

This second judgment addressed only the sentencing question arising from that changed landscape.

  • Whether the Court of Criminal Appeal had jurisdiction to re-sentence the appellant on count 10 following the quashing of convictions on the other counts.
  • Whether the sentence on count 10, as originally imposed within a global sentencing framework, was anomalous or excessive once the sentences on the quashed counts were set aside.
  • What sentence was appropriate for count 10 when assessed on a standalone basis, taking into account the objective seriousness of the offence, the appellant's age and health, delay in prosecution, and the absence of remorse.

Decision

The Court confirmed that it had jurisdiction to re-sentence under both s 5(1) and s 7(1) of the Criminal Appeal Act 1912. Section 7(1) expressly empowers the Court, where an appellant is properly convicted on some counts but not others, to pass such sentence as it thinks proper in substitution for the original. Drawing on High Court authority, the Court affirmed that this power amounts to a de novo re-sentencing exercise.

The original sentencing judge had adopted a global approach, treating count 10 as the anchor sentence to which the other shorter fixed terms were calibrated. With counts 1 to 7 removed, the sentence on count 10 stood in isolation at seven years six months with a five-year non-parole period. The Court accepted the joint submission of both parties that this rendered the remaining sentence anomalous.

In re-sentencing, the Court took into account the very serious nature of the offence: penile penetration of a young child, accompanied by threats of violence to enforce her silence, and committed in the context of a sustained pattern of abuse by a person in a position of trust. The Court noted the profound emotional harm to the complainant, the appellant's continued insistence on innocence, and the absence of any remorse.

The Court also acknowledged mitigating factors, including the appellant's age (he was approximately 63 at the time of sentencing), his health issues including cardiac conditions and dental problems, and the significant delay between the offences and prosecution. Special circumstances were found, though the adjustment to the non-parole period was described as modest. The maximum penalty for the offence at the time was 10 years imprisonment. The sentence was reduced to six years with a four-year non-parole period.

Orders Made

  • Leave to appeal against sentence in respect of count 10 was granted.
  • The appeal against sentence was allowed.
  • The sentence on count 10 was set aside and replaced with imprisonment for 6 years, commencing 22 November 2004 and expiring 21 November 2010, with a non-parole period of 4 years commencing 22 November 2004; the first eligible parole date was 21 November 2008.
  • A copy of the judgment was to be sent to the person in charge of prisoner health at the gaol where the appellant was held.

Key Takeaways

  • Section 7(1) of the Criminal Appeal Act 1912 confers a power to re-sentence de novo where an appellant is properly convicted on some counts but not others, and the remaining sentence has been rendered anomalous by the quashing of other convictions.
  • A global sentencing approach, structuring concurrent sentences across multiple counts so that each interacts with the others, carries a risk that the anchor sentence will appear excessive in isolation if the surrounding convictions are subsequently quashed.
  • In re-sentencing on a surviving count, the Court of Criminal Appeal assesses the appropriate penalty by reference to the objective seriousness of that offence, the offender's personal circumstances, and all other relevant sentencing factors, unconstrained by the original sentencing structure.
  • Delay in prosecution remains a relevant consideration in re-sentencing, even for very serious offences involving child sexual abuse committed under repealed provisions.
  • Where a sentencing court has found special circumstances justifying a longer parole period relative to the non-parole period, an appellate court re-sentencing de novo may adopt a similar finding while keeping the resulting adjustment modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61D(1) (since repealed)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 7(1)

Cases
- Sheehan v Regina [2006] NSWCCA 233 (the first appeal)
- Shore (1992) 66 A Crim R 37
- MJR (2002) 130 A Crim R 481
- R H McL v The Queen (2000) 203 CLR 452
- Ryan v The Queen (1982) 149 CLR 1