Citation: R v M.A.K., R v M.S.K. [2006] NSWCCA 381
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2006
Judges: Spigelman CJ, Whealy J, Howie J
Background
The two respondents, brothers referred to as MAK and MSK, were each sentenced by Hidden J in the Supreme Court for serious sexual assault offences. Their cases were dealt with separately from a related proceeding involving a third brother, MMK, in which a Crown appeal had already been dismissed (R v MMK [2006] NSWCCA 272).
Both respondents were already serving substantial sentences for earlier sexual assault convictions imposed by Sully J. The sentences under appeal, imposed by Hidden J on 5 April 2006, were structured to run cumulatively after those existing sentences.
The Crown appealed on the basis that the sentences imposed by Hidden J were manifestly inadequate, having regard to the overall criminality involved, the number and seriousness of the offences, the multiple complainants, and the limited subjective features favouring the respondents.
Legal Issues
- Whether later convictions (for offences committed after the offences being sentenced) are relevant to the sentencing exercise
- Whether a discount for a guilty plea should also reflect remorse as a distinct factor
- How the totality principle applies when multiple serious sexual assault offences were committed against different complainants of escalating seriousness
- Whether the sentences imposed by Hidden J were manifestly inadequate, warranting intervention on Crown appeal
Decision
The Court dismissed the Crown appeal against MAK's sentences. The increase that Hidden J imposed on top of MAK's existing sentences was found to be within the range of a proper exercise of sentencing discretion, and the Court declined to intervene.
The Court allowed the Crown appeal against MSK's sentences. It found that Hidden J had failed to sufficiently reflect the totality of MSK's criminality, having regard to the sentences already imposed by Sully J and the seriousness of the further offending. The subjective considerations in MSK's favour were limited, and the extent to which Hidden J had increased the overall sentence (a total term increase of six years and a non-parole period increase of five years and six months) was found to be manifestly inadequate.
On the question of plea discounts, the Court addressed whether a reduction for a guilty plea must also incorporate remorse as a separate element. The Court's analysis distinguished between the mechanical discount available for a plea and remorse as an independent mitigating factor, though the precise weight to be given to each was fact-dependent.
On totality, the Court confirmed that where multiple serious offences are committed against different victims over time, the totality principle requires careful attention to ensure the aggregate sentence properly reflects the full extent of the criminality without resulting in a sentence that is disproportionately lenient.
Orders Made
- The Crown appeal against MAK's sentences is dismissed.
- The Crown appeal against MSK's sentences is allowed, with the following variations to the sentences imposed by Hidden J:
- The sentence of 8 years for the third count relating to TW commences 13 August 2019, with a non-parole period of 4 years expiring 12 August 2023.
- The sentence of 8 years for the fourth count relating to TW commences 13 August 2021, with the original non-parole period quashed and replaced by a non-parole period of 4 years and 6 months expiring 12 February 2026.
- The sentence for the offence against CH is quashed and replaced with 9 years imprisonment commencing 13 August 2025, with a non-parole period of 12 months expiring 12 August 2026, being the first date of eligibility for parole.
The effect of the varied sentences is that MSK is to serve a total sentence of 32 years with a non-parole period of 24 years from 13 August 2002.
Key Takeaways
- The Court of Criminal Appeal confirmed that the totality principle does not operate to shelter an offender from an appropriately severe aggregate sentence where multiple serious sexual assaults were committed against different complainants over time.
- A manifestly inadequate aggregate sentence can justify intervention on Crown appeal even where the individual component sentences are not, in themselves, unreasonable; it is the overall sentencing outcome that must properly reflect the criminality involved.
- Where subjective features favouring a respondent are limited, a sentencing court is not entitled to impose an aggregate increase that fails to meet the purposes of punishment demanded by the gravity of the offending.
- In dismissing the appeal against MAK's sentences, the Court signalled that the discretion of a sentencing judge in structuring complex cumulative sentences will be respected where the outcome remains within the permissible range, even if another approach might have been taken.
- Later convictions (for offences committed after those being sentenced) may be relevant to the sentencing exercise, though their precise weight depends on the circumstances of the case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61JA, 61L, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 2A, 3A, 21A and Division 1A of Part 4
Cases:
- R v MMK [2006] NSWCCA 272
- Postiglione v The Queen (1997) 189 CLR 295
- R v Dodd (1991) 57 A Crim R 349
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v AJP (2004) 150 A Crim R 575
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Knight (2005) 155 A Crim R 252
- R v Skaf [2005] NSWCCA 297
- R v Hammoud (2000) 118 A Crim R 66
- Ibbs v The Queen (1987) 163 CLR 447
- R v McNaughton [2006] NSWCCA 242
- Elyard v R [2006] NSWCCA 43
- R v Sharma (2002) NSWLR 300
- R v Tadrosse [2005] NSWCCA 145