Citation: A.J.B. v Regina [2007] NSWCCA 51
Court: Court of Criminal Appeal, New South Wales
Date: 5 March 2007
Judge(s): Adams J, Howie J, Price J
Background
The applicant, a retired fireman aged 60 at the time of sentencing, pleaded guilty in the Local Court to five counts of indecent assault against his stepdaughter. The offences occurred over three years from 1979, when the victim was between six and a half and ten years old. Four additional similar offences were taken into account on a Form 1.
The victim first complained to her mother in 1982. Following that complaint, the applicant sought psychiatric treatment and did not reoffend. The family remained together for a further decade. A complaint to police in 1993 received no response, and it was only after a further complaint in 2005 that the applicant was arrested and ultimately committed for sentence to the District Court.
The District Court sentenced the applicant to an overall term of four years' imprisonment with a non-parole period of three years. The applicant sought leave to appeal, arguing the sentences were excessive when measured against sentencing practices applicable at the time of the offending, more than 26 years before sentence was imposed.
Legal Issues
- Whether the sentence was excessive having regard to sentencing practices in 1982, when the offences were committed
- Whether the availability of remissions under the legislative scheme in force in 1982 was relevant to the assessment of the appropriate sentence
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence
- What role sentencing practice from 1982 played in determining an appropriate non-parole period under the current statutory framework
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the original sentences were excessive. The Court applied the principle confirmed in R v MJR (2002) 54 NSWLR 368 that, where an offender is sentenced long after the offending, the sentencing court should have regard to the sentencing practices that existed at the time of the offending. In this case, that meant considering what a court in 1982 would likely have imposed.
On the remissions question, the Court accepted that remissions were available under the legislative scheme operating in 1982. Because remissions effectively reduced the time actually served, the Court took the view that a longer head sentence imposed in 1982 did not necessarily mean a longer period in custody. This consideration was relevant to calibrating a fair sentence under current law, which no longer provides for remissions.
The Court found that special circumstances existed, justifying a non-parole period that was proportionally shorter than the standard minimum set by section 44 of the Crimes (Sentencing Procedure) Act 1999. The Court identified several factors supporting this conclusion: the applicant had voluntarily sought treatment after the 1982 complaint, had not reoffended in the ensuing decades, presented a negligible to non-existent risk of reoffending according to psychiatric evidence, and had demonstrated genuine reform. The very long delay between offending and prosecution also weighed in favour of a reduced non-parole period.
Howie J, with whom Adams J and Price J agreed, concluded that an appropriate non-parole period was nine months for each sentence, reflecting the minimum period necessary to address the objective seriousness of the offending. General deterrence was given reduced weight given the applicant's evident rehabilitation and the passage of time.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentences imposed in the District Court quashed
- In respect of Counts 2 to 5: imprisonment for 18 months from 9 March 2006, with a non-parole period of 9 months expiring 8 December 2006
- In respect of Count 1 (and taking into account Form 1 matters): imprisonment for 2 years and 3 months from 9 December 2006, with a non-parole period of 9 months expiring 8 September 2007, being the date of release to parole
Key Takeaways
- Where an offender is sentenced many years after the relevant offending, the Court of Criminal Appeal confirmed that sentencing courts should have regard to the practices and statutory framework operating at the time of the offences, provided sufficient evidence of that practice exists.
- The availability of remissions under the 1982 legislative scheme was a relevant consideration when assessing sentence length, because remissions reduced actual time served in ways that the current framework does not replicate.
- Special circumstances justifying a non-standard non-parole period can arise from the combination of prolonged delay in prosecution, demonstrated rehabilitation, psychiatric evidence of negligible reoffending risk, and voluntary treatment sought by the offender decades before proceedings commenced.
- Reduced weight for general deterrence is appropriate where the passage of time and the offender's manifest reform mean that making an example of the offender serves little sentencing purpose.
- In dismissing concerns about mechanically applying the standard non-parole period ratio, the Court treated the avoidance of unfairness arising from prosecutorial delay as a legitimate basis for finding special circumstances under the current sentencing regime.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 76 (repealed), 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Parole of Prisoners Act 1966 (NSW)
- Sentencing Act 1989 (NSW)
Cases
- R v Moon (2000) 117 A Crim R 497
- R v MJR (2002) 54 NSWLR 368
- R v Baxter (NSWCCA, unreported, 26 May 1994)
- R v Maclay (1990) 19 NSWLR 112
- R v O'Brien [1984] 2 NSWLR 449
- R v Slater [2003] NSWCCA 178
- Tatana v R [2006] NSWCCA 398
- R v EGC [2005] NSWCCA 392
- R v PLV (2001) 51 NSWLR 736
- R v Portolesi [1972] 1 NSWLR 105
- Power v The Queen (1974) 131 CLR 623
- Deakin v The Queen (1984) 58 ALJR 367