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Court of Criminal Appeal 15 March 2006

Perrin v Regina

[2006] NSWCCA 64

Sexual offences
OFFENDERS SENTENCE MANIFESTLY EXCESSIVE,

Citation: Perrin v Regina [2006] NSWCCA 64
Court: New South Wales Court of Criminal Appeal
Date: 15 March 2006
Judges: McClellan CJ at CL, Rothman J, Smart AJ

Background

The appellant pleaded guilty in the District Court to a single count of sexual intercourse without consent, with an aggravated indecent assault taken into account on a Form One. The charges arose from events on 4 May 2003 involving the appellant and four other men. The feature of aggravation (commission in company) had been removed from the indictment as part of negotiations following admissibility rulings, and the factual basis for sentencing was explicitly limited to admissions the appellant made in his recorded police interview.

Two co-offenders, Shepherd and South, proceeded to a jury trial and were convicted. Their trial generated evidence about the complainant's account and the conduct of all persons present, much of which was more detailed and more damaging than what the appellant had admitted in his own interview.

The sentencing judge imposed a non-parole period of four years and a parole period of two years. The appellant sought leave to appeal, arguing the judge had impermissibly relied on evidence from the co-offenders' trial when sentencing him, thereby incorrectly elevating his criminality and producing a manifestly excessive sentence.

  • Whether the sentencing judge impermissibly relied on evidence admitted at the co-offenders' trial that had not been tendered against the appellant.
  • Whether the judge's remarks on sentence adequately distinguished between the appellant's individual conduct and the broader Crown case against his co-offenders.
  • Whether the sentence imposed was manifestly excessive as a result.
  • What the appropriate sentence was upon resentencing, having regard to the appellant's custodial conditions, his participation in rehabilitation programmes, and the existence of special circumstances.

Decision

Smart AJ (with whom McClellan CJ at CL and Rothman J agreed) found that the sentencing judge's remarks did not adequately distinguish between the case against the appellant and the case against Shepherd and South. The judge had narrated facts drawn from evidence at the co-offenders' trial, including the complainant's account attributing a larger and somewhat different role to the appellant, none of which had been tendered against the appellant at sentencing.

A sentencing judge is confined to evidence properly admissible against the offender being sentenced. The Court noted that when reviewing sentencing decisions, it concentrates on the formal remarks on sentence and approaches with caution any comments made during submissions, since those comments may not accurately reflect the final reasoning. Here, however, the remarks on sentence themselves disclosed the impermissible reliance on the co-offenders' trial material.

As a consequence, the appellant's criminality had been incorrectly elevated. The Court found the original sentence manifestly excessive in both the non-parole period and the full term. On resentencing, the Court took into account the gravity of both the principal offence and the Form One matter, the relevant aggravating and mitigating factors, and the appellant's custodial circumstances at Long Bay's Special Management Area. The Court found special circumstances existed, given the appellant's youth, the fact this was his first period of custody, and the extended supervision required. The appellant's custodial conditions were not so exceptional as to warrant a further discount on sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; original sentence quashed.
  • In lieu of the sentence imposed, the appellant was sentenced (taking into account the aggravated indecent assault) to a non-parole period of 2 years commencing 19 May 2005 and expiring 18 May 2007, with a balance of term of 2 years commencing 19 May 2007 and expiring 18 May 2009.
  • The appellant was required to accept supervision of the Probation and Parole Service and comply with all reasonable directions of that Service.

Key Takeaways

  • A sentencing court is strictly confined to evidence properly admitted against the offender being sentenced; it cannot draw on evidence adduced solely in proceedings against co-offenders.
  • The Court of Criminal Appeal confirmed it concentrates on the formal remarks on sentence when assessing sentencing error, and treats comments made during submissions with caution, as they may not reflect the judge's ultimate reasoning.
  • Where a sentencing judge's remarks on sentence fail to distinguish between an individual offender's conduct and the broader Crown case against co-offenders, this may constitute error warranting intervention on appeal.
  • Incorrectly characterising an offender's criminality by reference to inadmissible material can render an otherwise available sentence manifestly excessive, providing grounds for the Court of Criminal Appeal to resentence.
  • Special circumstances warranting a departure from the standard non-parole period ratio can arise from a combination of the offender's youth, a first period of custody, and the need for extended supervision on release.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- R v H [2005] NSWCCA 282