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9
Court of Criminal Appeal 8 February 2008

Allen v Regina

[2008] NSWCCA 11

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE SEXUAL ASSAULT YOUTH OF BOTH PARTIES

Citation: Allen v Regina [2008] NSWCCA 11
Court: New South Wales Court of Criminal Appeal
Date: 8 February 2008
Judge(s): Giles JA, Grove J, Harrison J

Background

The appellant was a 24-year-old man who, at the age of 20, had been in a consensual relationship with a 19-year-old woman (referred to as "C"). C wished to end the relationship, but the appellant did not accept this. He was permitted to remain at her apartment because he claimed to have nowhere else to stay.

On 28 January 2004, the appellant committed a series of offences against C in her apartment, including assault, indecent assault, and two acts of sexual intercourse without consent. After his arrest, he also committed a further offence by persuading C, through the use of compromising images of her that were being distributed to professional contacts, to provide a statement to the Director of Public Prosecutions requesting that the charges be withdrawn. This constituted the charge of doing an act with intent to pervert the course of justice.

At first instance, Blackmore DCJ in the District Court sentenced the appellant to an effective total sentence of 12 years and 6 months, with a non-parole period of 9 years. The appellant sought leave to appeal on the ground that this sentence was manifestly excessive.

  • Whether the total effective sentence, after cumulation of individual sentences across multiple counts, was excessive having regard to the totality principle.
  • Whether the sentencing judge gave sufficient weight to the subjective features of the appellant's case, including his youth and the circumstances of the offending.
  • Whether the sentence imposed for the perverting the course of justice offence was disproportionate relative to comparable cases.
  • Whether the standard non-parole period provisions under the relevant legislation were correctly applied to the two counts of sexual intercourse without consent.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part, quashing and re-imposing sentences on three of the counts. The majority accepted that the individual sentences were within range but found the total effective sentence, after cumulation, was excessive when the totality principle was applied to the circumstances as a whole.

Grove J and Giles JA agreed that the offending arose from a single episode involving parties who had previously been in a consensual relationship, and that the appellant was young at the time. These factors, combined with the character of the offending as a single outbreak rather than a sustained pattern of predatory conduct, warranted a less severe aggregate sentence.

Harrison J, in a separate judgment, emphasised that the sentence for the perverting the course of justice offence represented the high-water mark for cases of its kind and was not justified on the facts. His Honour was also concerned that the overall non-parole period, even as reduced, risked constituting a crushing burden on the appellant given the particular circumstances, including his youth.

The court re-sentenced the appellant on counts 4, 5, and 6, producing an effective encompassing non-parole period of 4 years with a balance of term of 1 year and 6 months.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentences on counts 4, 5, and 6 quashed.
  • On count 4 (sexual intercourse without consent): non-parole period of 3 years from 8 September 2006, with a balance term of 2 years from 8 September 2009.
  • On count 5 (sexual intercourse without consent): non-parole period of 3 years from 8 March 2007, with a balance term of 2 years from 8 March 2010.
  • On count 6 (doing an act with intent to pervert the course of justice): non-parole period of 1 year from 8 September 2009, with a balance term of 1 year from 8 September 2010.
  • Effective encompassing term: non-parole period of 4 years, with a balance term of 1 year and 6 months; earliest parole eligibility date of 7 September 2010.

Key Takeaways

  • The totality principle requires a sentencing court to assess whether cumulated sentences produce an aggregate that is disproportionate to the overall criminality, even where individual sentences are each within range.
  • A single outbreak of serious offending, as distinct from a sustained or predatory pattern of conduct, is a relevant consideration when assessing the appropriate overall sentence, particularly where the parties had a prior consensual relationship.
  • The Court of Criminal Appeal confirmed that the youth of an offender is a subjective factor that must be meaningfully reflected in the final sentence, not merely acknowledged in a cursory way.
  • Sufficient error was established to justify intervention where the sentence for the perverting the course of justice count exceeded what comparable cases warranted, even accounting for the serious nature of the conduct involved.
  • Standard non-parole period provisions do not operate as a rigid floor; under the principles in R v Way, departures are available where subjective factors justify it, provided the court engages properly with the statutory framework.

Legislation and Cases Referenced

Cases:
- R v Hammoud (2000) 118 A Crim R 66
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Way (2004) 60 NSWLR 168

Texts:
- D Thomas, Principles of Sentencing (2nd edn, 1979, Heinemann)

Legislation:
- Crimes Act (NSW) (reference to s 558, since repealed, concerning recognizance call-up)
- Standard non-parole period provisions applicable to sexual intercourse without consent (NSW)