Citation: Perry v R [2006] NSWCCA 351
Court: NSW Court of Criminal Appeal
Date: 8 November 2006
Judges: Spigelman CJ, Howie J, Rothman J
Background
The applicant pleaded guilty to the murder of an adult woman and two counts of aggravated indecent assault on the woman's seven-year-old child, all committed on the same night in February 2004. The sexual offences involved the applicant waking the child, carrying her to another room, removing her clothing, and rubbing her body with cream before masturbating in her presence. The murder charge is not the subject of this appeal.
At first instance, Newman AJ sentenced the applicant to 25 years' imprisonment (with an 18-year, nine-month non-parole period) for murder, and to concurrent six-year head sentences (with four-year, three-month non-parole periods) for the two aggravated indecent assault offences, the assault sentences commencing in August 2020.
The applicant appealed against the sentences imposed for the two sexual offences on four grounds: misuse of the standard non-parole period, incorrect assessment of objective seriousness, manifest excess, and an inadequate guilty plea discount.
Legal Issues
- Whether the sentencing judge incorrectly used the statutory standard non-parole period as a starting point, rather than merely a guideline, when imposing sentences for the aggravated indecent assault offences
- Whether the offences were correctly placed at the mid-range of objective seriousness
- Whether the sentences imposed for the sexual offences were manifestly excessive
- Whether the 12.5% discount applied for the earliest plea of guilty was calculated on an impermissible basis
Decision
The Court of Criminal Appeal found that the sentencing judge had misused the standard non-parole period by treating it as a starting point for calculating the sentence, rather than as a legislative guidepost to be consulted alongside all other relevant factors. This approach was contrary to established authority on how standard non-parole periods are to be applied under the Crimes (Sentencing Procedure) Act 1999.
On the question of objective seriousness, the Court found that the trial judge's characterisation of the offences as falling within the mid-range was not established as an error. The conduct, while serious, involved no physical penetration, and the Court considered the full factual context in assessing the appropriate penalty.
The Court also found error in the calculation of the guilty plea discount. The 12.5% figure had been reduced from the ordinarily available 25% discount, apparently on a basis other than the utilitarian value of the plea itself. The discount for a plea of guilty must reflect the utilitarian benefit to the justice system and not be reduced by reference to factors unconnected to that utilitarian value.
In resentencing, the Court applied the totality principle across all three offences, adjusting the murder sentence so that the overall sentence did not exceed that originally imposed. The two assault sentences were made concurrent with each other and were backdated to the date of arrest, with the murder sentence running from a later commencement date to reflect time already spent in custody.
Orders Made
- Leave to appeal granted
- Sentences for the two aggravated indecent assault offences quashed
- For each count of aggravated indecent assault (s 61M(2), Crimes Act 1900): non-parole period of three years and seven months commencing 23 February 2004, expiring 22 September 2007; remainder of term of one year and two months expiring 22 November 2008
- For murder (s 18, Crimes Act 1900): non-parole period of 18 years and five months commencing 23 June 2005, expiring 22 November 2023; remainder of term of five years and three months expiring 22 February 2029
Key Takeaways
- Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 function as a legislative guideline, not a mathematical starting point; a sentencing court that treats the standard non-parole period as the baseline from which to build a sentence commits a legal error.
- The Court of Criminal Appeal confirmed that the discount for a plea of guilty must be determined by reference to its utilitarian value to the criminal justice system; reducing that discount on other grounds constitutes an error of law.
- Where multiple offences arise from a continuous course of conduct and the Crown raises no objection, it may be appropriate to treat them as a single episode for sentencing purposes, as occurred with the two concurrent assault sentences here.
- In resentencing following a successful appeal, the totality principle requires the court to ensure the combined effect of all sentences remains proportionate to the overall criminality, and the Court varied the murder sentence accordingly.
- The Court of Criminal Appeal noted that sentencing for the most serious offence last is the better practice because it produces a lesser distortion of the overall ratio between non-parole period and head sentence when the totality principle is applied.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 7
Cases
- R v Way (2004) 60 NSWLR 168
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Itaoui v R (2005) 158 A Crim R 233
- R v AJP (2004) 150 A Crim R 575
- R v Brown [2006] NSWCCA 249
- R v Mulato [2006] NSWCCA 282
- R v Swan [2005] NSWCCA 252
- R v Dang [2005] NSWCCA 430
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Veen v R (No 2) (1988) 164 CLR 465
- R v Bloomfield (1998) 44 NSWLR 734
- R v Moffitt (1990) 20 NSWLR 114
- R v Close (1992) 31 NSWLR 743
- R v Simpson (1992) 61 A Crim R 58
- Saraswati v The Queen (1991) 172 CLR 1