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Court of Criminal Appeal 20 February 2007

SDM v R

[2007] NSWCCA 34

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCING TOTALITY PAROLE PERIOD NEED FOR ADJUSTMENT IN OVERALL SENTENCE

Citation: SDM v R [2007] NSWCCA 34
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2007
Judge(s): Adams J at [1]; Howie J at [9]; Price J at [10]

Background

The applicant pleaded guilty to two separate indictments containing serious offences. The first indictment concerned eight counts arising from offences against his former wife, including assault occasioning actual bodily harm and sexual intercourse without consent. The second indictment arose from offences committed at Glenorie, including aggravated break and enter with armed robbery, two counts of aggravated sexual intercourse without consent in company, and maliciously inflicting grievous bodily harm with intent.

The sentencing judge in the District Court imposed individual sentences with utilitarian discounts reflecting the guilty pleas: 25% for the Glenorie offences and 15% for the offences against the former wife. The accumulated sentences produced a total effective sentence of 30 years imprisonment. The applicant sought leave to appeal against the severity of that sentence.

The appeal raised important questions about the relationship between individual utilitarian discounts for guilty pleas, the principle of totality, and how accumulation of sentences can inadvertently negate a discount properly granted at the individual offence level.

  • Whether the individual sentences imposed were manifestly excessive
  • Whether the overall accumulated sentence was manifestly excessive, having regard to the utilitarian discounts applied to individual offences
  • Whether the sentencing judge adequately addressed, when considering totality, the effect of differing utilitarian discounts across the two indictments
  • Whether the statutory ratio between the non-parole period and the balance of term (under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) had been properly maintained in the overall sentence

Decision

The Court granted leave to appeal. The majority (Price J, with Howie J agreeing) found that the individual sentences were not manifestly excessive but identified an error in the relationship between the overall non-parole period and the overall term of the sentence. The sentencing judge had expressly stated an intention to depart from the statutory ratio of non-parole period to balance of term but had not made a corresponding adjustment to bring the overall sentence into line with that ratio. The majority held this constituted an error warranting intervention.

Price J's solution was to preserve the total effective sentence of 30 years while adjusting the non-parole periods for counts two and three of the second indictment. That adjustment produced an overall effective non-parole period of 22 years and 6 months, preserving the statutory ratio and reflecting the stated special circumstances. The need to adjust the non-parole period in order to maintain the statutory ratio itself constituted special circumstances, consistent with established authority.

Adams J agreed with Price J's analysis of the individual sentences but reached a different conclusion on the overall sentence. His Honour found that the sentencing judge had not addressed, at the totality stage, how the differing utilitarian discounts (25% and 15%) interacted with the extent of accumulation. The risk, Adams J explained, is that accumulation can entirely undo a discount properly granted at the individual sentence level, "taking away with one hand what was given with the other." His Honour considered an overall discount of approximately 20% was appropriate, treating 30 years as the pre-discount starting point and reducing it to 24 years with a non-parole period of 18 years. Because Adams J was in the minority on the ultimate outcome, he did not undertake the exercise of adjusting individual commencement dates to give effect to his preferred result.

Orders Made

  • Leave to appeal granted
  • Sentence for count two on Indictment two (aggravated sexual intercourse without consent, contrary to s 61JA of the Crimes Act 1900) quashed and replaced with a non-parole period of 12 years and 6 months commencing 15 March 2012 and expiring 14 September 2024, with a balance of term of 7 years and 6 months expiring 14 March 2032
  • Sentence for count three on Indictment two (aggravated sexual intercourse without consent, contrary to s 61JA of the Crimes Act 1900) quashed and replaced with a non-parole period of 12 years and 6 months commencing 15 March 2014 and expiring 14 September 2026, with a balance of term of 7 years and 6 months expiring 14 March 2034
  • Overall effective non-parole period fixed at 22 years and 6 months, with the earliest parole eligibility date of 14 September 2026
  • Total effective sentence of 30 years otherwise unchanged
  • Publication of the names of complainants in counts one to four of Indictment two suppressed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge departs from the statutory ratio of non-parole period to balance of term, an adjustment to the overall accumulated sentence may be required to preserve that ratio; the need to make such an adjustment can itself constitute special circumstances.
  • Accumulation of individually discounted sentences does not automatically preserve the utilitarian benefit of guilty pleas at the overall sentence level. Adams J (in dissent on the outcome) reasoned that the extent of accumulation can entirely negate a discount properly granted for individual offences.
  • Where different utilitarian discounts apply to different sets of offences on separate indictments, no purely mathematical approach is available when assessing the overall discount that should flow through to the total sentence. Adams J suggested that in such cases an overall discount somewhere between the individual rates is the most reasonable approach.
  • A sentencing judge who grants utilitarian discounts at the individual offence stage should also expressly address, when considering totality, how those discounts affect the appropriateness of the accumulated overall sentence. Failure to do so risks an error in the exercise of the sentencing discretion.
  • In dismissing the appeal on the question of manifest excess in the total term, the majority preserved a 30-year total sentence for a course of very serious offending, while restructuring the non-parole periods to restore the proper statutory ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 59, 60, 61, 61I, 61JA, 112, 562I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Perry v R [2006] NSWCCA 35; (2006) 166 A Crim R 383
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Close (1992) 31 NSWLR 743
- R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Simpson (1992) 61 A Crim R 58
- R v Swan [2005] NSWCCA 252