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Court of Criminal Appeal 10 March 2006

Banting v Regina

[2006] NSWCCA 53

Sexual offencesAssault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCING PAST RELATIONSHIP AGGRAVATED SEXUAL ASSAULT SPECIAL KNOWLEDGE MANIFEST EXCESS

Citation: Banting v Regina [2006] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 10 March 2006
Judge(s): Grove J, Rothman J

Background

The appellant had been in a de facto relationship with the victim for approximately eight years before the relationship ended in 2002. Following the separation, he committed a common assault on the victim on Christmas Day 2002, and then, in March 2003, attended her new home uninvited, sexually assaulted her in the presence of their young daughter, and stole jewellery and a mobile phone from her as he left.

The appellant pleaded guilty to all three charges: assault contrary to s 61 of the Crimes Act 1900, sexual intercourse without consent contrary to s 61I, and larceny contrary to s 117. In the District Court, Judge Marien SC sentenced him to an effective non-parole period of four and a half years, followed by a two-year balance of sentence, with fixed terms for the assault and larceny running partly concurrently.

The appellant sought leave to appeal, arguing primarily that the overall sentence was manifestly excessive. The appeal was ultimately argued on that single ground.

  • Whether the total sentence imposed by the District Court was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave insufficient weight to the need for extended supervision following release, constituting special circumstances justifying a longer parole period
  • Whether the sentences for the common assault and larceny were disproportionate given their relative seriousness compared to the sexual assault

Decision

The Court of Criminal Appeal found the overall sentence was manifestly excessive. Rothman J, with whom Grove J agreed, identified two principal errors in the District Court's approach. First, the sentencing judge appeared to have allowed the gravity of the sexual assault to inflate the penalties imposed for the common assault and larceny, offences that were at a different level of seriousness. The fixed term of two years for the larceny, in particular, was held to be excessive for an offence at the very lowest end of seriousness.

Second, the Court found that the judge gave insufficient regard to special circumstances and the need for extended supervision after release. The appellant's alcohol dependency and the circumstances of the offending indicated that a longer parole period, with structured supervision including drug and alcohol counselling and anger management, was appropriate. These factors warranted reducing the non-parole period relative to the head sentence.

The Court re-sentenced the appellant, reordering the counts to allow greater flexibility in constructing a proportionate sentence while still respecting totality principles. It declined to make any of the sentences wholly concurrent, recognising that each offence involved distinct criminality, but accepted some overlap between the larceny and sexual assault.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences quashed; the following sentences imposed in their place:
  • Count 1 (assault, s 61): six months' imprisonment commencing 28 December 2004, expiring 27 June 2005
  • Count 3 (larceny, s 117): fixed term of 12 months commencing 28 February 2005, expiring 27 February 2006
  • Count 2 (sexual intercourse without consent, s 61I): non-parole period of 3 years commencing 28 May 2005, expiring 27 May 2008, as part of a total sentence of 6 years expiring 27 May 2011
  • On release to parole from 27 May 2008, the appellant directed to be subject to Probation and Parole Service supervision, with compliance required with all reasonable directions, particularly regarding drug and alcohol counselling and anger management

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must not allow the gravity of the most serious offence in a set of proceedings to distort the penalties imposed for lesser, concurrent offences; each charge must be sentenced with reference to its own objective seriousness.
  • Special circumstances justifying an extended parole period were established where the offender's alcohol dependency and the nature of the offending indicated a significant need for structured post-release supervision.
  • Where an offender demonstrates rehabilitative needs that are best addressed through community supervision, the sentencing court may adjust the ratio between the non-parole period and total sentence to allow a longer parole phase.
  • Totality principles did not require wholly concurrent sentences merely because offences arose from related facts; some accumulated component remained appropriate given the distinct criminality of each offence.
  • Prior exposure to the criminal justice system was relatively limited for this offender, and insufficient weight had been given to this factor in combination with the above considerations when the District Court constructed the original sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61 (common assault), 61I (sexual intercourse without consent), 117 (larceny)

Cases
- R v O'Grady (unreported, NSWCCA, 13 May 1997)