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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
Date: 20 February 2007
Judge(s): Adams J at [1]; Howie J at [9]; Price J at [10]

Background

The applicant pleaded guilty to twelve counts across two indictments. The first indictment concerned eight offences against his former wife, including assault occasioning actual bodily harm and sexual intercourse without consent. The second concerned four serious offences arising from a home invasion at Glenorie, including two counts of aggravated sexual intercourse without consent in company (carrying a maximum of life imprisonment), armed robbery in circumstances of special aggravation, and maliciously inflicting grievous bodily harm with intent.

The sentencing judge in the District Court applied utilitarian discounts for the guilty pleas: 25% for the Glenorie offences and 15% for the offences against the former wife. After accumulating and partially accumulating the individual sentences, the total effective sentence was a 30-year head sentence with a non-parole period of 25 years.

The applicant sought leave to appeal on two grounds: that the sentencing judge erred in failing to find special circumstances (which would allow a longer parole period relative to the non-parole period), and that the overall sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by failing to find special circumstances justifying a departure from the statutory 3:1 ratio between the non-parole period and the balance of term
  • Whether the overall sentence failed to give effect to the principle of totality
  • Whether (on Adams J's analysis, in dissent on outcome) the overall sentence failed to carry through the utilitarian discounts that the sentencing judge had expressly granted

Decision

Ground 1: Special circumstances and the statutory non-parole ratio

Price J (with whom Howie J agreed) found that the sentencing judge had set a 3:1 ratio between non-parole period and balance of term for each individual sentence, but the effect of accumulation produced an overall ratio of 5:1 across the aggregate sentence (at [37]). Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not prohibit a remainder shorter than one-third; but where a sentencing judge's reasons disclose an intention to apply the standard ratio and no reasons are given for departing from it in the aggregate, an appellate court will ordinarily treat that departure as an oversight rather than a deliberate choice (at [39]). Price J concluded that the sentencing judge had stated his intention to reflect a 3:1 ratio but overlooked the adjustment required to preserve it once all sentences were accumulated (at [48]). That oversight constituted error warranting intervention.

Ground 2: Manifest excess and totality

Price J was not persuaded that the sentencing judge failed to give proper effect to the totality principle in any other respect (at [59]). The judge had carefully considered which sentences should be concurrent, partially accumulated, or fully accumulated, and had then reviewed the aggregate for overall justice. Price J noted that the applicant's criminality in the Glenorie offences was appalling: he was found to be the ringleader and main perpetrator of sexual offending and violence in a home invasion involving armed offenders, multiple victims, and the presence of family members (at [56]). The individual sentences were not manifestly excessive (at [1]).

Adams J's analysis (dissent on outcome): utilitarian discounts and accumulation

Adams J, while agreeing that individual sentences were not excessive, identified a separate error. Where different utilitarian discounts apply to different offence groups, accumulation can silently cancel out the discounts granted at the individual level (at [3]). Adams J held that the overall sentence of 30 years would not have been excessive had the applicant gone to trial, but it did not reflect the discounts the sentencing judge had expressly identified (at [7]). He concluded that a 20% overall discount was appropriate, producing a sentence of 24 years with an 18-year non-parole period (at [4], [7]). The majority did not adopt this approach, and no adjustment to the total sentence length was made on this basis.

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 (NSW)) 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 (same offence type) 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.
  • Earliest eligible parole date: 14 September 2026.
  • Non-publication order continued for complainants in counts one to four of Indictment two.

Key Takeaways

  • Where a sentencing judge expressly states an intention to apply the statutory 3:1 ratio between non-parole period and balance of term to each individual sentence, but accumulation produces a materially different aggregate ratio without any stated reason for departing from it, the Court of Criminal Appeal will generally treat that divergence as an oversight and correct it (at [39], [48]).

  • Adjusting the aggregate sentence to preserve the statutory non-parole ratio, in circumstances where the sentencing judge expressed no intention to depart from it, constitutes special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [60]).

  • Adams J identified (in dissent on the remedial outcome) that when different utilitarian discounts apply to different groups of offences, accumulation carries a risk of cancelling out the discounts at the aggregate level; sentencing judges should specifically address the impact of those discounts on the overall sentence, not merely on individual counts (at [3], [6]).

  • Under the totality principle, the need to maintain an appropriate relationship between the totality of an offender's criminality and the totality of sentences imposed arises partly because the severity of a very long sentence may increase at a rate greater than a simple linear function of its length, and may otherwise become crushing in its effect on the offender's expectations of rehabilitation (at [52]).

  • In applying the totality principle, care must be taken to avoid any suggestion that what is offered is effectively a discount for committing multiple offences (at [53]).

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