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7
Court of Criminal Appeal 17 July 2007

G A T v R

[2007] NSWCCA 208

Sexual offences
SENTENCING MULTIPLE OFFENCES PAROLE PERIOD.

Citation: G A T v R [2007] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 17 July 2007
Judge(s): Adams J, Howie J, Price J

Background

The appellant pleaded guilty in September 2005 to six sexual offences spanning two separate periods. Three charges related to offences committed in 1985 against his daughter, who was then 13 years old. The remaining three charges arose from offences in 2004 against two of his grandchildren, aged approximately 11 and 14 years respectively at the time.

In March 2006, the District Court sentenced the appellant to a total effective term of 13 years' imprisonment with a non-parole period of nine and a half years. The sentences were structured as a combination of concurrent and cumulative terms across all six charges.

The appellant sought leave to appeal, arguing that the sentencing judge had made identifiable errors in constructing the sentence, including failing to give practical effect to a guilty plea discount and misapplying the standard minimum non-parole period provisions.

  • Whether the sentencing judge failed to give real, practical effect to a utilitarian discount (the sentencing reduction ordinarily available for a guilty plea) when constructing the overall sentence across multiple charges
  • Whether the sentencing judge erred in applying section 44 of the Crimes (Sentencing Procedure) Act 1999, which governs the ratio between non-parole periods and head sentences, after finding special circumstances
  • Whether the sentencing judge gave insufficient consideration to the totality principle, requiring that a combined sentence not be disproportionate to the overall criminality
  • Whether the sentencing judge correctly applied the standard minimum non-parole period of five years to charge 3 (the indecent assault of an 11-year-old)
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had made identifiable errors in the construction of several individual sentences. In particular, the judge had not structured the cumulative and concurrent terms in a way that gave real, practical effect to the intended guilty plea discount across the overall sentence. The total sentence, as assembled, did not reflect what the judge had indicated in respect of that discount.

On the standard minimum non-parole period issue relating to charge 3, the Court found that the sentencing judge had not correctly approached this question. The standard minimum non-parole period of five years represented the starting point for a case assessed as being in the midrange of seriousness for that offence. The sentencing judge was required to engage with that benchmark and identify reasons for departing from it, and the Court found that process had not been properly undertaken.

Applying the totality principle, the Court reduced the sentences on charges 3, 4, and 6. The Court noted an error in its own calculations as to charge 6, which was corrected by addendum in October 2008 to ensure the aggregate sentence matched the intended outcome.

The revised sentence imposed an overall term of ten and a half years with an aggregate non-parole period of seven years, reduced from the original thirteen years with a non-parole period of nine and a half years.

Orders Made

  • Leave to appeal granted
  • Sentence on charge 3 quashed and substituted: non-parole period of one year and six months commencing 24 May 2008, expiring 23 November 2009; balance of term of one year and one month expiring 23 December 2010
  • Sentence on charge 4 quashed and substituted: fixed term of one year commencing 24 May 2008 and ending 23 May 2009
  • Sentence on charge 6 varied (as corrected by addendum): non-parole period of two years commencing 24 May 2010; balance of term adjusted to produce a head sentence of five years and six months, resulting in an aggregate sentence of ten and a half years with an aggregate non-parole period of seven years

Key Takeaways

  • A guilty plea discount must be given real, practical effect in the construction of an overall sentence across multiple charges. It is not sufficient for a sentencing judge to express an intention to apply a discount if the resulting combination of concurrent and cumulative terms does not actually reflect it.
  • Under the totality principle, a sentencing court is required to stand back and assess whether the overall effective sentence, once multiple cumulative terms are assembled, is proportionate to the total criminality involved. Structural errors in individual sentences can distort this assessment.
  • The standard minimum non-parole period for an offence represents a legislative benchmark anchored to a midrange case. Where a sentencing judge intends to impose a non-parole period below that standard, reasons must be identified and the analysis must be conducted by reference to what an abstract midrange case for that offence would look like.
  • Where this Court identifies arithmetic or calculation errors in orders it has made, it may issue a correcting addendum to ensure the orders reflect the intended outcome. The October 2008 addendum in this matter corrected a calculation error in the sentence for charge 6 to restore the intended aggregate of ten and a half years.
  • Special circumstances findings under section 44 of the Crimes (Sentencing Procedure) Act 1999, which permit a departure from the standard ratio between the non-parole period and the balance of term, must be given operational effect in the actual structure of the sentences imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61M(1), 61O(1), 66C(2), 66C(4), 71
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v AJP (2004) 150 A Crim R 575
- R v Dang [2005] NSWCCA 430
- R v Thompson (2005) 156 A Crim R 467
- R v Way (2004) 60 NSWLR 168