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54
Court of Criminal Appeal 13 August 2008

R v PGM

[2008] NSWCCA 172

Also reported as (2008) 187 A Crim R 152
Sexual offences
CROWN APPEAL AGAINST INADEQUACY AFTER TRIAL

Citation: R v PGM [2008] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 13 August 2008
Judges: Spigelman CJ, Barr J, Fullerton J

Background

The respondent was convicted after trial in July 2007 on six counts arising from a sustained course of offending against a child aged between six and seven years over approximately seven months from October 2003 to May 2004. Three counts were for sexual intercourse with a child under 10 years (contrary to s 66A of the Crimes Act 1900), and three counts were for indecent assault of the same child (contrary to s 61M(2)). Two further offences of possessing child pornography were taken into account on a Form 1.

In February 2008, the District Court imposed an overall sentence of 7 years imprisonment with an effective non-parole period of 4 years and 6 months. The sentences on each of the three s 66A counts were ordered to be served concurrently, notwithstanding that they involved distinct conduct separated in time. This was the respondent's second trial, his conviction at the first having been quashed on appeal.

The Crown appealed to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate and failed to properly apply the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the District Court erred in classifying the offending as below the mid-range of objective seriousness, thereby departing from the applicable standard non-parole periods
  • Whether the weight given to the respondent's prior good character and psychiatric condition was excessive and not warranted by the statutory framework
  • Whether the individual sentences, and the concurrent structure imposed, failed to reflect the total criminality of a sustained course of serious offending against a young child
  • How s 54B of the Crimes (Sentencing Procedure) Act 1999 (governing standard non-parole periods) applied in the circumstances

Decision

The Court of Criminal Appeal, in reasons delivered by Fullerton J (with Spigelman CJ and Barr J agreeing), held that the Crown appeal succeeded. The sentencing judge had erred in treating the offending as falling below the mid-range of seriousness. The offences involved repeated serious sexual abuse of a very young child over an extended period, and the Court found no proper basis for departing downward from the standard non-parole periods that attached to each category of offence.

The Court also found that undue weight had been given to the respondent's prior good character and psychiatric condition. While these factors are relevant mitigating considerations, they did not, in the circumstances of sustained and grave offending, warrant the significant departure from the standard non-parole periods that the District Court had applied. The mandatory operation of s 54B of the Sentencing Act required the sentencing court to treat the standard non-parole period as a reference point and to identify specific grounds justifying any departure.

The concurrent structure of the original sentences was also found to be in error. Because the individual offences involved different conduct separated in time, some degree of accumulation was required to reflect the totality of the criminal conduct. The Court restructured the sentences to partially accumulate them, while still applying the totality principle to ensure the overall sentence was not unjust.

The respondent's special circumstances finding (based on having served two discrete periods of custody) was not challenged by the Crown and was preserved in the restructured sentences through the application of a longer balance of term.

Orders Made

  • The appeal against sentence is allowed
  • The sentences imposed in the District Court are quashed
  • In lieu thereof, the following sentences are imposed:
  • Count 1: non-parole period of 6 years from 26 January 2006, expiring 25 January 2012; balance of term of 3 years expiring 25 January 2015
  • Count 2: non-parole period of 6 years from 26 January 2006, expiring 25 January 2012; balance of term of 3 years expiring 25 January 2015
  • Count 3: non-parole period of 4 years from 26 January 2006, expiring 25 January 2010; balance of term of 2 years expiring 25 January 2012
  • Count 4: non-parole period of 4 years from 26 January 2006, expiring 25 January 2010; balance of term of 2 years expiring 25 January 2012
  • Count 5: non-parole period of 6 years from 26 January 2006, expiring 25 January 2012; balance of term of 3 years expiring 25 January 2015
  • Count 7: non-parole period of 4 years and 8 months from 26 November 2008, expiring 25 July 2013; balance of term of 2 years expiring 25 July 2015
  • The effective non-parole period is 7 years and 6 months; earliest consideration for parole is 25 July 2013

Key Takeaways

  • Under s 54B of the Crimes (Sentencing Procedure) Act 1999, standard non-parole periods operate as a mandatory reference point; a sentencing court must identify clear, specific grounds before departing from them, particularly where offending falls squarely in the mid-range of objective seriousness.
  • Prior good character and a psychiatric condition are relevant mitigating factors, but the Court of Criminal Appeal confirmed they cannot carry disproportionate weight where the offending involves sustained, serious crimes against a very young child.
  • Where multiple offences involve distinct criminal acts separated in time, ordering all sentences to be served wholly concurrently may itself constitute a sentencing error; partial accumulation is ordinarily required to reflect the full criminality of the conduct.
  • A significant difference between sentences imposed at a first and second trial does not, of itself, establish error. However, the second sentencing judge must still exercise the discretion within the proper range and apply the applicable statutory framework correctly.
  • A finding of special circumstances (justifying a longer balance of term relative to the non-parole period) can survive a Crown appeal where it is not challenged, but the Court of Criminal Appeal will adjust the sentence structure as needed to ensure the finding does not neutralise appropriate accumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 54B, Division 1A of Part 4
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- GAT v R [2007] NSWCCA 208
- House v R (1936) 55 CLR 499
- Ibbs v R (1987) 163 CLR 447
- Lozanovski v R [2006] NSWCCA 143
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- Pearce v R [1998] HCA 57; 194 CLR 610
- PGM v R [2006] NSWCCA 310; 164 A Crim R 426
- R v ABS [2005] NSWCCA 255
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v CJP [2004] NSWCCA 188
- R v Hemsley [2004] NSWCCA 228
- R v Kennedy [2000] NSWCCA 527
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Witchard [2007] NSWCCA 167
- RJA v R [2008] NSWCCA 137
- Ryan v R [2001] HCA 21; 206 CLR 267
- Tarrant v R [2007] NSWCCA 124