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Court of Criminal Appeal 23 May 2008

REGINA v Phillip Ronald SPIERS

[2008] NSWCCA 107

Sexual offencesAssault & violenceDrugsTheft & propertyPublic order & justice offences
SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE IN ANY EVENT MANIFESTLY INADEQUATE OFFENDER RESENTENCED.

Citation: Regina v Phillip Ronald Spiers [2008] NSWCCA 107
Court: Court of Criminal Appeal
Date: 23 May 2008
Judge(s): Giles JA (principal judgment); Adams J (agreeing in part); Latham J (agreeing with Giles JA)

Background

The respondent pleaded guilty in the District Court to three offences committed in October 1997: kidnapping an 18-year-old woman at knifepoint, administering a stupefying drug to her, and aggravated sexual assault. He also had four further offences (including aggravated robbery and obtaining a benefit by deception) taken into account on a Form 1 in relation to the drug administration charge.

The District Court sentenced the respondent to three consecutive terms of 6 years each (with a 4-year non-parole period for each), producing an overall non-parole period of 6 years and a total sentence of 8 years. The offences had been committed almost ten years before sentencing, and the respondent was not identified until DNA evidence emerged in 2005.

The Crown appealed on the ground that the sentences were manifestly inadequate.

Legal Issues

  • Whether the District Court failed to properly assess the objective criminality of each offence, particularly the drug administration and aggravated sexual assault offences.
  • Whether the sentencing judge gave undue weight to the respondent's remorse, when the post-offence conduct substantially qualified any genuine contrition.
  • Whether the sentencing judge wrongly treated the respondent's anxiety about possible detection during the period of delay as a mitigating factor.
  • Whether the sentencing judge gave insufficient weight to general deterrence, particularly for the offence of administering a stupefying drug.
  • Whether the increase to the drug administration sentence for the Form 1 offences was insufficient.
  • Whether, taken together or in any event, the sentences were manifestly inadequate such that appellate intervention was warranted.

Decision

Ground 1: Failure to fully assess objective criminality

Giles JA found that, while the sentencing judge expressly assessed the kidnapping as objectively very serious, he did not overtly assess the objective seriousness of the other two offences. The Court noted that assessment of objective criminality is fundamental to proper sentencing, providing a measure against the maximum penalty and a basis for evaluating subjective circumstances. The absence of that analysis for the drug and sexual assault offences meant those charges may not have been fully treated as the serious matters they were.

Ground 2: Qualification of remorse

The Court found the respondent's remorse was substantially qualified by his post-offence conduct. After the assault he continued to use the complainant's bank cards, retained her jewellery, told his girlfriend he believed the complainant had been "enjoying" the sexual intercourse, and expressed satisfaction that another man had been charged with the crime. Giles JA held that remorse voiced upon apprehension, without full acknowledgment of the offending, amounts to less than genuine contrition.

Ground 3: The period of delay and apprehension

The sentencing judge had treated the respondent's anxiety during the ten-year period before arrest as a mitigating factor. The Court of Criminal Appeal rejected this approach. Relying on established authority, Giles JA confirmed that only suspense or uncertainty arising after arrest or notification by authorities of likely prosecution is relevant. An offender who remains silent hoping not to be detected receives no sentencing discount for that period of self-imposed uncertainty.

Ground 4: Insufficient weight to general deterrence

Although the sentencing judge acknowledged general deterrence at the outset of his remarks, he did not return to it when fixing the individual sentences. The Court found this omission was given added weight by the specific attention paid to rehabilitation, and that general deterrence should have been emphasised, particularly for the offence of administering a stupefying drug, where it carries recognised importance.

Ground 5: Insufficient increase for Form 1 offences

The Court found that the sentence for the drug administration charge did not reflect a marked increase to account for the serious Form 1 offences. The aggravated robbery was described as a serious offence in its own right, and the commission of further offending on the day after the assault reflected poorly on the respondent's overall criminality. A non-parole period of 4 years against a maximum of 25 years was described as "remarkably lenient."

Manifest inadequacy and resentencing

The Court held that the combination of these errors, and in any event the sheer inadequacy of the sentences, warranted intervention. Applying the restraint appropriate to Crown appeals, Giles JA resentenced the respondent with partial accumulation across the three offences, retaining the approximately 25 per cent discount for the early guilty pleas and finding special circumstances to achieve the statutory ratio for the overall sentence. Adams J agreed the kidnapping and sexual assault sentences required increase but, in a minority view, considered the drug administration offence was substantially less serious than the other two and would have dismissed the appeal against that sentence alone.

Orders Made

  • Appeal allowed.
  • Sentences imposed in the District Court set aside and the respondent resentenced as follows:
  • Kidnapping: non-parole period of 6 years 9 months commencing 29 October 2007, further term of 2 years 3 months.
  • Administering a stupefying drug: non-parole period of 7 years 6 months commencing 29 January 2008, further term of 2 years 6 months.
  • Aggravated sexual assault: non-parole period of 8 years commencing 29 October 2008, further term of 3 years.
  • Overall sentence: non-parole period of 9 years, total sentence of 12 years.
  • Earliest date of eligibility for parole: 28 October 2016.

Key Takeaways

  • Assessment of objective criminality is a fundamental sentencing step for every offence being sentenced, not only the most serious charge. Omitting that analysis for individual counts risks undervaluing serious offending and may constitute an error warranting appellate correction.
  • Remorse expressed upon arrest carries reduced weight where post-offence conduct reveals the offender had little genuine acknowledgment of wrongdoing: continuing to exploit the victim financially, minimising the assault, and expressing relief at avoiding detection are all factors that qualify any claimed contrition.
  • An offender who remains silent and hopes not to be detected receives no sentencing discount for anxiety experienced during that period of concealment. Only suspense arising after arrest or formal notification of prosecution is a relevant mitigating consideration.
  • General deterrence must be expressly addressed when fixing sentences for serious sexual and drug administration offences. Concluding that personal deterrence is unnecessary does not remove the obligation to recognise and give proper weight to general deterrence.
  • The Court of Criminal Appeal confirmed that where a Form 1 carries serious offences, the increase to the head sentence must be marked and must visibly reflect the additional criminality. A nominal increase against a high maximum penalty will not suffice.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated