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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: NSW Court of Criminal Appeal
Date: 23 May 2008
Judge(s): Giles JA; Adams J; Latham J

Background

The respondent pleaded guilty in the District Court to three serious offences committed in October 1997: kidnapping an 18-year-old woman at knifepoint, administering a stupefying drug to her, and aggravated sexual assault. The offences were connected: the respondent forced the complainant into the boot of her own car, drove her to an isolated location and then to his home garage, administered Panadeine Forte and alcohol to subdue her, and sexually assaulted her. He also wiped the scene with methylated spirits to destroy evidence, stole jewellery and bank cards, and left her semi-naked and bound in the boot of the car.

The District Court sentenced the respondent to three consecutive fixed terms of six years each, producing an overall non-parole period of six years and a total sentence of eight years. Four additional offences (including aggravated robbery and assault) were taken into account on a Form 1 in connection with the drug administration charge.

The Crown appealed on the ground that those sentences were manifestly inadequate. The Court of Criminal Appeal allowed the appeal and resentenced the respondent.

  • Whether the District Court's sentences were manifestly inadequate having regard to the objective seriousness of the offending.
  • Whether the sentencing judge failed to properly assess the objective criminality involved in each offence.
  • Whether the sentencing judge gave undue weight to remorse and the respondent's concern about apprehension, at the expense of general deterrence.
  • Whether the discount applied for the Form 1 offences was insufficient.

Decision

The Court of Criminal Appeal found that the District Court sentences were manifestly inadequate on multiple grounds. The sentencing judge had not fully assessed the objective criminality of the offences, which involved a sustained, premeditated attack on a young woman involving abduction at knifepoint, deliberate drugging, sexual violation, and calculated steps to evade detection. The offending was at the higher end of seriousness.

The Court also found that the sentencing judge had placed undue weight on the respondent's remorse and his expressed concern about being caught, treating those matters in a way that undervalued the need for general deterrence. The increase applied to account for the Form 1 offences was found to be insufficient given their seriousness.

The majority (Giles JA and Latham J) increased the sentence for all three counts and restructured their accumulation. Adams J agreed that the kidnapping and aggravated sexual assault sentences were unduly lenient but expressed the view, in dissent, that the administering a stupefying drug offence, while serious, was considerably less serious than the other two and should not have attracted a sentence approaching those applicable to them. Adams J would have dismissed the appeal on that count. As Adams J was in the minority, the majority's approach prevailed.

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 parole eligibility date: 28 October 2016.

Key Takeaways

  • A sentencing court's failure to fully assess the objective criminality of serious offences involving kidnapping, drugging and sexual assault may itself constitute error warranting appellate intervention, even where some mitigating factors are present.
  • Giving undue weight to an offender's remorse and concern about apprehension, at the expense of general deterrence, can produce a sentence that is manifestly inadequate and subject to Crown appeal.
  • Where Form 1 offences are taken into account, the sentencing court must apply a meaningful increase; a token or insufficient uplift is an error in principle.
  • In dismissing the appeal on the drug count (in minority), Adams J noted that the relative seriousness of individual counts in a connected series of offences must still be assessed individually, and that a high statutory maximum does not automatically make one offence more serious than another in the context of a particular case.
  • The Court of Criminal Appeal confirmed that a sentence may be manifestly inadequate both because of specific identifiable errors and, in any event, when the overall result is disproportionately low having regard to the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61J(1), 90A (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Cage [2006] NSWCCA 304
- R v Hathaway [2005] NSWCCA 368
- R v Johnson (CCA, 16 May 1997, unreported)
- R v Reyes [2005] NSWCCA 218
- R v Shorten [2005] NSWCCA 106