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Court of Criminal Appeal 1 March 2007

Wilmot v R

[2007] NSWCCA 30

Also reported as 169 A CRIM R 280
Sexual offencesAssault & violencePublic order & justice offences
SENTENCE SERIOUS OFFENCES OF VIOLENCE PROTECTION OF THE COMMUNITY NON

Citation: Wilmot v R [2007] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 1 March 2007
Judge(s): Sully J, Bell J, Buddin J

Background

The applicant pleaded guilty in the District Court at Campbelltown to one count of detaining a person with intent to hold her for advantage and three counts of sexual intercourse without consent, arising from a serious assault on a 19-year-old railway station employee in June 1998. The offences were not charged until December 2004, when DNA evidence linked the applicant to the crime. At the time of sentencing in February 2006, the applicant was already serving sentences for separate offences of detaining for advantage and malicious wounding committed three weeks after the present offences.

The sentencing judge imposed a nine-year non-parole period with a three-year balance of term for the kidnapping offence, with concurrent six-year fixed terms for the three sexual offences. These sentences were accumulated on the non-parole period already being served. The result was that the applicant would not be eligible for parole until he had served approximately 16 years in continuous custody, producing an effective aggregate sentence of 19 years.

The applicant had a serious prior criminal history, including convictions from 1990 for kidnapping, robbery, and multiple counts of sexual intercourse without consent arising from the abduction of Janine Balding in 1988. He had been released on parole in October 1996 and committed further offences while on parole and later on bail.

  • Whether the sentencing judge erred in imposing a non-parole period that significantly exceeded the standard statutory proportion of 75 per cent of the total sentence
  • Whether the structure of the accumulated sentences was unreasonable or plainly unjust in all the circumstances
  • Whether sufficient weight was given to the principle of totality when accumulating sentences upon those already being served

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Bell J (with whom Sully J and Buddin J agreed) found that the sentencing judge had not erred in fixing a non-parole period representing such a high proportion of the aggregate sentence. The sentencing judge had explicitly identified retribution, personal deterrence, and protection of the community as factors warranting significant weight, and this was a proper exercise of the sentencing discretion.

The court noted that, despite the non-parole period exceeding 75 per cent of the aggregate sentence, the applicant would still be subject to parole supervision for three years upon release. The relevant regulations contemplated supervision for up to three years from the date of release, with the Parole Authority holding additional powers in the case of serious offenders.

The court applied the principle from Power v R that the non-parole period represents the minimum time a sentencing judge assesses justice requires an offender to serve in custody. Given the gravity of the offences, the applicant's extensive history of similar conduct, and the repeated re-offending whilst on parole and bail, the court was not persuaded that the sentences or their structure produced a result that was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A non-parole period exceeding the standard 75 per cent statutory proportion is not automatically an error; where the sentencing court gives explicit and justified weight to retribution, personal deterrence, and community protection, a higher proportion may be appropriate.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the non-parole period represents the minimum period the sentencing judge determined justice required the offender to serve in custody, consistent with Power v R (1973) 131 CLR 623.
  • Accumulation of sentences on existing non-parole periods, even where it produces a lengthy aggregate term, does not constitute error where the sentencing judge properly considers totality and the particular circumstances of the offending.
  • The existence of meaningful parole supervision upon release (here, three years) was relevant to the court's assessment that the sentence structure was not unjust, notwithstanding the extended non-parole period.
  • Repeated serious offending while on parole and on bail, combined with a history of analogous prior convictions, supported the substantial weight placed on community protection in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 90A
- Crimes (Administration of Sentences) Regulation 2001 (NSW), cl 216
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Elyard v R [2006] NSWCCA 43
- Markarian v Regina [2005] NSWCCA 264; (2005) 79 ALJR 1048
- Mill v R (1988) 166 CLR 59
- Power v R (1973) 131 CLR 623
- R v Rowe (1996) 89 A Crim R 467
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Veen (No. 2) (1988) 164 CLR 465