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11
Court of Criminal Appeal 4 September 2007

MJL v REGINA

[2007] NSWCCA 261

Sexual offences
CRIMINAL LAW: SENTENCE OLD OFFENCES RELEVANCE OF UNCHARGED SEXUAL CONDUCT SPECIAL CIRCUMSTANCES PRACTICE OF SETTING NON WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: MJL v Regina [2007] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 4 September 2007
Judge(s): Campbell JA, Hidden J, Smart AJ

Background

The applicant, a father, pleaded guilty in the District Court to nine charges of sexual offences against his daughter committed between 1974 and 1982, when she was aged six to fourteen. The offences included eight counts of indecent assault and one count of carnal knowledge. He had also been separately sentenced for offences against his granddaughter (the daughter's child), committed in 2002.

The offences against the daughter were charged under provisions of the Crimes Act 1900 that have since been repealed. The charges reflected instances drawn from what the sentencing judge described as a persistent pattern of abuse spanning approximately eight years. The seventh and eighth charges arose solely from the applicant's own voluntary disclosures during his police interview.

The applicant sought leave to appeal the sentences imposed on the charges relating to his daughter. Freeman DCJ in the District Court had sentenced him to an aggregate of ten-and-a-half years with a non-parole period of seven-and-a-half years for those offences, forming part of an overall sentence of twelve years imprisonment with a nine-year non-parole period.

  • Whether the sentencing judge erred in taking uncharged sexual conduct into account when imposing sentence
  • Whether the sentencing judge erred by failing to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to depart from the standard non-parole period ratio
  • Whether the sentences, individually and in their combined effect, were manifestly excessive
  • What role the sentencing practices prevailing at the time the historical offences were committed should play when sentencing an offender for old offences

Decision

On the question of uncharged conduct, the Court accepted the well-established principle that a sentencing court may take into account the broader context of an offender's conduct, including a wider pattern of offending of which the charged acts form part. The sentencing judge had done so appropriately, treating each offence as an instance within a continuing pattern rather than as an isolated event.

On special circumstances, the Court considered whether the standard ratio between non-parole period and head sentence should be departed from, particularly given the applicant's age, the need for supervision on release, and the overall length of the aggregate sentence. The Court found that the sentencing judge had not adequately addressed this question in relation to certain counts, and this formed part of the basis for adjusting some of the sentences.

On manifest excess, the Court found that certain individual sentences, particularly for counts 3, 5 and 9, were excessive and required correction. The sentences for those counts were quashed and replaced with revised terms. The Court confirmed the remaining sentences but adjusted their commencement dates to give effect to a proper cumulation structure.

On the relevance of historical sentencing practice, Smart AJ addressed the established principle, affirmed by the Court in cases including R v MJR and R v Shore, that a sentencing court dealing with old offences should have substantial regard to the sentencing practices that existed at the time those offences were committed, particularly where contemporary practices would be more adverse to the offender. This does not require a mechanical approach, but does require genuine consideration of the earlier practice.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences for counts 1, 2, 4 and 6 confirmed
  • Sentences for counts 3 and 5 quashed; replaced on each count with a non-parole period of 18 months commencing 11 May 2008 and expiring 10 November 2009, and a balance of term of 12 months expiring 10 November 2010
  • Sentences for counts 7 and 8 confirmed, adjusted to commence 11 November 2009 and expire 10 May 2011
  • Sentence for count 9 quashed; replaced with a non-parole period of 2 years commencing 11 November 2010 and expiring 10 November 2012, and a balance of term of 3 years expiring 10 November 2015
  • Applicant eligible for release on parole on 10 November 2012

Key Takeaways

  • A sentencing court dealing with historical sexual offences may treat the charged acts as instances of a broader, ongoing pattern of conduct, provided it does not punish the offender for uncharged offences as if they were proved charges.
  • Under the principle affirmed in R v MJR and R v Shore, where sentencing practice has moved adversely to an offender since the time of the offence, a sentencing court should have substantial regard to the practices that prevailed at the time of the offending. This does not require a mechanistic application of the earlier regime.
  • Smart AJ clarified that a court need not speculate about what would have been predicted at the earlier date regarding rehabilitation or reoffending; it may rely on the actual evidence available at sentencing rather than hypothetical predictions.
  • Where an offender voluntarily discloses conduct beyond what was alleged by the complainant, and charges are laid on that basis, that disclosure is a factor in the offender's favour when assessing the utilitarian discount on sentence: see R v Ellis (1986) 6 NSWLR 603.
  • In cases involving multiple accumulated sentences, the failure to give adequate consideration to special circumstances in relation to individual counts within a lengthy aggregate sentence can constitute a sentencing error warranting appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E, 73, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Sentencing Act 1989 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983
- Parole of Prisoners Ordinance 1971 (ACT)

Cases
- R v Ellis (1986) 6 NSWLR 603
- R v JCW (2000) 112 A Crim R 466
- R v MJR (2002) 54 NSWLR 368
- AJB v R [2007] NSWCCA 51
- R v AJP (2004) 150 A Crim R 575
- Power v The Queen (1973) 131 CLR 623
- Deakin v R (1984) 54 ALJR 765
- Radenkovic v The Queen (1990) 170 CLR 623
- R v Shore (1992) 66 A Crim R 37
- R v Watson [1999] NSWCCA 227
- R v Moon (2000) 117 A Crim R 497
- R v Portolesi [1973] 1 NSWLR 105
- R v Sloane [1973] 1 NSWLR 203