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Court of Criminal Appeal 22 January 2007

I.F.G. v Regina

[2007] NSWCCA 6

Sexual offences
CRIMINAL LAW SENTENCING

Citation: I.F.G. v Regina [2007] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 22 January 2007
Judge(s): Howie J (principal judgment), Adams J, Price J

Background

The applicant, an unrepresented middle-aged stepfather, was sentenced in the NSW District Court in July 2005 for two counts of sexual intercourse without consent with his stepdaughter, committed in 1992 when she was aged 12 and 13. The offences had come to light in 1998, but NSW prosecution was significantly delayed because the applicant had already been charged and sentenced in Queensland for related conduct. He served a short Queensland custodial term in 1999 to 2000 before NSW proceedings resumed years later.

McGuire DCJ sentenced the applicant to an overall term of 8 years with a non-parole period of 5 years, comprising two partially accumulated sentences. The matter was complicated by errors in the warrant of commitment, which recorded only one offence and misstated that sentence, leaving the applicant uncertain for a period about the true length of his imprisonment.

The applicant sought leave to appeal to the Court of Criminal Appeal, raising concerns about the delay in prosecution, the appropriateness of partially accumulated sentences, and irregularities in how his sentences had been recorded and communicated.

  • Whether the sentencing judge gave insufficient weight to the significant delay between the offences and the NSW prosecution, particularly given the applicant had already been sentenced in Queensland for related conduct
  • Whether partially accumulating the two NSW sentences was warranted in light of that delay
  • Whether errors in the warrant of commitment and the recording of the sentences affected the validity or outcome of the sentences
  • Whether the pronouncement of the sentences complied with the applicable provisions of the Crimes (Sentencing Procedure) Act 1999 as it stood at the time the offences were committed

Decision

The Court of Criminal Appeal found no substantive error in the District Court's exercise of sentencing discretion. Howie J, with Adams J and Price J agreeing, concluded that the overall sentence of 8 years with a 5-year non-parole period was fully justified given the seriousness of the offending, notwithstanding the delay before prosecution. To the extent any error existed, it favoured the applicant and did not warrant reduction.

The Court acknowledged that the applicant had been misled at one point about the length of his sentence due to errors in the warrant, but held that the terms of an erroneous warrant cannot determine the outcome of an appeal. The key issue was what the sentencing judge actually pronounced, not how that pronouncement was subsequently recorded or conveyed.

However, the Court identified a technical but consequential defect: the sentences as pronounced did not comply with the form required by section 44 of the Crimes (Sentencing Procedure) Act 1999 as it applied at the time of the offences. Although this defect did not reflect any error in the exercise of discretion, it was sufficient to enliven the Court's jurisdiction to re-sentence. The Court granted leave to appeal, allowed the appeal, and re-pronounced the sentences in the correct statutory form, preserving the same overall structure and length.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences in each case quashed and re-pronounced in correct statutory form:
  • First count: 6 years imprisonment with a non-parole period of 4 years, commencing 29 July 2005, non-parole period expiring 28 July 2009
  • Second count: 6 years imprisonment with a non-parole period of 3 years, commencing 29 July 2007, non-parole period expiring 28 July 2010 (date eligible for parole)
  • Recommendations of McGuire DCJ continued: psychiatric and psychological treatment in custody; supervision by the Probation and Parole Service on parole; compliance with all directions regarding ongoing psychological and psychiatric counselling

Key Takeaways

  • A technical defect in the pronouncement of sentences, specifically non-compliance with the form required by the Crimes (Sentencing Procedure) Act 1999 as at the date of the offences, is sufficient to require re-sentencing by the Court of Criminal Appeal even where no error in the exercise of discretion is established.
  • Errors in a warrant of commitment, including the omission of counts and misstatement of sentence length, do not determine the outcome of a sentence appeal; the controlling question is what the sentencing judge actually pronounced.
  • Significant delay between the commission of child sexual offences and NSW sentencing, including an intervening interstate prosecution, does not automatically reduce the appropriate sentence where the objective gravity of the offending is high.
  • Where any error in sentencing discretion operates in the applicant's favour, the Court of Criminal Appeal will not intervene to impose a lesser sentence; its role is the correction of legal error, not the substitution of a sentence the appellate court might itself have imposed.
  • Under the statutory framework considered in this case, the applicable version of section 44 of the Crimes (Sentencing Procedure) Act 1999 was that in force at the time the offences were committed, not the version in force at the date of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases:
- R v Todd [1982] 2 NSWLR 517