Citation: Regina v Smith [2006] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 10 November 2006
Judge(s): Hidden J, Bell J, Johnson J
Background
The respondent pleaded guilty in the District Court at Armidale to six counts of sexual offences against the same complainant, committed over an eight-year period when she was aged between nine and 17 years. The offences ranged from aggravated indecent assault to aggravated sexual intercourse without consent. Three further offences were taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate convictions being recorded).
The District Court sentenced the respondent primarily on count 2, imposing a non-parole period of three years and three months with a balance of term of two years and nine months. All five other sentences were ordered to run concurrently with that sentence and were entirely absorbed by it, producing an effective total sentence that the Crown contended was manifestly inadequate.
The Director of Public Prosecutions appealed to the Court of Criminal Appeal, arguing that the sentencing judge erred by running all sentences concurrently and failing to give sufficient weight to the number, nature, and duration of the offences.
Legal Issues
- Whether the sentencing judge erred in directing all sentences to be served concurrently, resulting in a total sentence that was manifestly inadequate
- Whether the sentence on count 6 (sexual intercourse without consent under s 61I, which carries a standard non-parole period of seven years) was individually inadequate
- How the principles of accumulation, totality, and proportionality should apply where an offender is sentenced for multiple serious sexual offences committed against the same victim over an extended period
Decision
The Court of Criminal Appeal allowed the appeal, finding that the complete concurrency of all sentences failed to reflect the gravity and multiplicity of the offending. The offences were distinct in time and circumstance, spanning eight years, and the sentencing structure needed to acknowledge each offence's individual seriousness while still applying the totality principle. Running all sentences concurrently meant that five of the six convictions had no effective custodial consequence.
On count 6, the Court quashed the fixed term of two years that had been imposed and substituted a sentence comprising a non-parole period of three years and a balance of term of two years. The original fixed term had not been structured with a non-parole period at all, which the Court found was not appropriate given the seriousness of the offence and the applicable standard non-parole period of seven years under the sentencing legislation.
The Court restructured the sentences so that they were partly accumulated rather than wholly concurrent. Count 5 was an exception, commencing on the same date as count 4 and being subsumed by it, reflecting totality and restraint. The Court was careful to ensure the respondent retained a meaningful period on parole to assist rehabilitation.
The restructured sentence produced a total term of seven years and nine months, comprising an effective non-parole period of five years and a balance of term of two years and nine months.
Orders Made
- Appeal allowed
- Sentence on count 1 confirmed (fixed term of 18 months from 20 June 2006, expiring 19 December 2007)
- Sentences on counts 2 to 5 confirmed but commencement dates varied
- Sentence on count 6 quashed; substituted with a non-parole period of three years and a balance of term of two years
- Sentences partly accumulated with the following commencement dates:
- Count 3: fixed term of 2 years and 9 months from 20 December 2006 (expires 19 September 2009)
- Count 4: fixed term of 2 years and 9 months from 20 June 2007 (expires 19 March 2010)
- Count 5: fixed term of 18 months from 20 June 2007 (expires 19 December 2008)
- Count 6: non-parole period of 3 years from 20 October 2007 (expires 19 October 2010); balance of term expires 19 October 2012
- Count 2: non-parole period of 3 years and 3 months from 20 March 2008 (expires 19 June 2011); balance of term of 2 years and 9 months (expires 19 March 2014)
Key Takeaways
- Directing all sentences to run concurrently across six separate serious sexual offences committed over eight years was found to produce a result that was manifestly inadequate and failed to reflect the criminality of each distinct offence.
- Partial accumulation of sentences is an available and appropriate mechanism where multiple offences are committed on different occasions against the same victim, subject to the totality principle ensuring the overall sentence remains proportionate.
- Where a standard non-parole period applies under the Crimes (Sentencing Procedure) Act 1999, a sentencing court must engage with that benchmark; a fixed term sentence on count 6 that effectively ignored the seven-year standard non-parole period for s 61I offences was found to be in error.
- The totality principle does not require all sentences to be concurrent; it requires that the aggregate sentence, when viewed as a whole, is just and appropriate for the total criminality involved.
- A degree of departure from the statutory non-parole period proportion can be warranted where partial accumulation of sentences makes a longer overall parole period appropriate to support rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J, 61M(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, Part 4 Division 1A
Cases:
- Ainger v Coffs Harbour City Council [2005] NSWCA 424
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Dinsdale v R (2000) 202 CLR 321
- Johnson v R [2004] HCA 15; 78 ALJR 616
- Markarian v R [2005] HCA 25; 79 ALJR 1048
- Pearce v R (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Holyoak (1995) 82 A Crim R 502
- R v Way [2004] NSWCCA 131; 60 NSWLR 168