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Court of Criminal Appeal 16 March 2007

Reaburn v R

[2007] NSWCCA 60

Also reported as 169 A CRIM R 337
Sexual offences
SENTENCE APPEAL USE OF STANDARD NON PAROLE PERIOD WHEN PLEA OF GUILTY ERROR IN USING STANDARD NON

Citation: Reaburn v R [2007] NSWCCA 60
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2007
Judge(s): Sully J, Bell J, Hoeben J (Hoeben J writing for the Court)

Background

The applicant pleaded guilty in the District Court on 24 January 2006 to two serious sexual assault offences committed against a Japanese tourist on 26 September 2005. The offences involved threats with a kitchen knife and two separate acts of sexual intercourse without consent. A related assault occasioning actual bodily harm was included on a Form 1 to be taken into account on the primary count.

The District Court sentenced the applicant to an effective non-parole period of 11 years, with a balance of term of 3 years and 8 months. Count 2 ran partly concurrently and partly cumulatively on Count 1.

The applicant sought leave to appeal against the sentences, arguing that the sentencing judge had made errors in applying the standard non-parole period framework and had failed to apply a discount for his early plea of guilty.

  • Whether the sentencing judge erred by using the standard non-parole period as a starting point for calculating the sentence, rather than as a reference point after determining an appropriate sentence independently
  • Whether the sentencing judge failed to apply a discount for the applicant's early plea of guilty
  • Whether the offending constituted "part of a planned or organised criminal activity" within the meaning of section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, which would make that an aggravating factor

Decision

Hoeben J (with Sully J and Bell J agreeing) found that the sentencing judge had committed two distinct errors. First, his Honour had treated the standard non-parole period as a starting point from which to calculate the sentence, rather than as a legislative guideline or reference point to be consulted after forming an independent view of the appropriate sentence. This approach was inconsistent with the method confirmed in R v Way (2004) 60 NSWLR 168.

Second, the sentencing judge failed to apply any discount for the applicant's early plea of guilty entered in January 2006, even though the plea was accepted as genuine and timely. A 25% discount had been applied to Count 2 but not to Count 1, which was inconsistent and worked an injustice against the applicant.

On the question of planned or organised criminal activity under section 21A(2)(n), the Court found that the offending did not meet that description. The applicant's conduct was opportunistic, arising from the absence of his girlfriend rather than from any premeditated plan. The sentencing judge had erred in characterising it as planned or organised.

Taking into account the strong subjective case, including a highly disrupted upbringing, the absence of any prior sentence of imprisonment, and the finding that the objective seriousness of each offence was below the midrange, the Court re-sentenced the applicant. The revised effective sentence comprised a non-parole period of 7 years and 6 months with a balance of term of 2 years and 8 months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; sentences imposed by Nield DCJ on 26 April 2006 quashed
  • Count 1 re-sentenced to imprisonment with a non-parole period of 6 years and 9 months, commencing 24 March 2006 and expiring 23 December 2012, with a balance of term of 2 years and 3 months expiring 22 March 2015
  • Count 2 re-sentenced to imprisonment with a non-parole period of 4 years and 4 months commencing 24 May 2009 and expiring 23 September 2013, with a balance of term of 2 years and 8 months expiring 22 May 2016

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 is a legislative reference point, not a numerical starting point from which arithmetic adjustments are made. Treating it as a starting point constitutes legal error.
  • Failure to apply a discount for an early and genuine plea of guilty is a distinct sentencing error, separate from any error in applying the standard non-parole period framework.
  • Under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of "planned or organised criminal activity" requires more than opportunistic conduct. Offending that arose spontaneously from circumstance, without prior planning, did not satisfy this element.
  • A strong subjective case, including evidence of childhood trauma, institutional care, and an absence of prior imprisonment, can affect the starting point for a sentence and is not merely relevant to an adjustment downward from an otherwise fixed figure.
  • Inconsistent application of a plea discount between counts on the same indictment may independently constitute appellable error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61I, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- Elyard v R [2006] NSWCCA 43
- Fahs v R [2007] NSWCCA 26
- Mulato v Regina [2006] NSWCCA 282
- Vu v R [2006] NSWCCA 188
- R v Hung Lo [2005] NSWCCA 436
- R v Sangalang [2005] NSWCCA 171
- R v Wickham [2004] NSWCCA 193
- R v Davies [2004] NSWCCA 319
- R v Engert (1995) 84 A Crim R 67
- Avondale Motors (Parts) Pty Limited v FCT (1971) 45 ALJR 280