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Court of Criminal Appeal 2 October 2008

R v Katon

[2008] NSWCCA 228

Sexual offences
CRIMINAL LAW SENTENCING CROWN APPEAL MANIFEST INADEQUACY OF SENTENCES SEXUAL INTERCOURSE WITH CHILD UNDER 16 ACTS OF INDECENCY WITH CHILD UNDER 16

Citation: R v Katon [2008] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 2 October 2008
Judge(s): McClellan CJ at CL, Hislop J, Hoeben J

Background

The respondent was convicted of nine counts involving three child victims: three counts of sexual intercourse with a child under 16, two counts of committing an act of indecency on a child under 16, two counts of possessing child pornography, and two counts of using a child for pornographic purposes. Five additional matters were taken into account on a Form 1 (a procedural mechanism that allows the court to consider further offences when sentencing, without formally convicting on those counts). The offending spanned a period from September 1998 to February 2007.

At first instance, the District Court sentenced the respondent to a total effective term of five years imprisonment with a non-parole period of three years. The sentencing judge structured the sentences so that a significant number ran concurrently, that is, at the same time rather than one after another.

The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate. The central complaint was that the extensive use of concurrency meant the total sentence did not reflect the number and seriousness of the individual offences.

  • Whether the original sentences were manifestly inadequate in light of the number and gravity of the offences
  • Whether the sentencing judge's structuring of concurrent and partially concurrent sentences failed to reflect the full criminality involved across nine counts and five Form 1 matters
  • Whether the total effective sentence adequately addressed the totality principle (the requirement that the overall sentence reflect the combined criminality of all offences)
  • Whether the sentencing judge erred by misidentifying the maximum penalty for count 9 as eight years rather than the correct ten years

Decision

The Court of Criminal Appeal upheld the Crown appeal. The Court accepted that the fundamental problem with the original sentences was not necessarily the length of any individual sentence, but the extent to which they were ordered to run concurrently. By allowing so many sentences to overlap, the sentencing judge produced a total effective sentence that did not adequately reflect the overall criminality across nine distinct offences involving three separate victims over nearly a decade.

McClellan CJ at CL, with whom Hislop and Hoeben JJ agreed, found that greater accumulation of sentences was required to do justice to the totality of the offending. However, the Court noted that because this was a Crown appeal, it applied a degree of restraint and did not increase the length of individual sentences. Instead, it restructured the relationship between sentences by increasing the degree to which they were stacked consecutively rather than run concurrently.

The Court maintained the sentencing judge's finding of special circumstances (a finding that allows the non-parole period to be reduced below the usual statutory proportion, resulting in a longer period on parole). The Court also preserved the discount applied for the respondent's early guilty plea. The sentencing judge's error in identifying the wrong maximum penalty for count 9 was noted as part of the background, though the Court addressed the inadequacy principally by restructuring the overall sentence architecture.

Orders Made

  • Appeal upheld
  • Sentences imposed in the District Court on 4 April 2008 quashed and replaced as follows:
  • Count 1: Fixed term of 1 year commencing 2 March 2007, expiring 1 March 2008
  • Count 2: Fixed term of 2 years commencing 2 March 2007, expiring 1 March 2009
  • Count 3: Non-parole period of 2 years commencing 2 June 2007, expiring 1 June 2009; balance of term of 1 year, 4 months and 2 weeks, expiring 15 October 2010
  • Count 4: Non-parole period of 18 months commencing 2 August 2008, expiring 1 February 2010; balance of 9 months expiring 1 November 2010
  • Count 5: Non-parole period of 18 months commencing 2 October 2008, expiring 1 April 2010; balance of 9 months expiring 1 January 2011
  • Count 6: Fixed term of 1 year commencing 2 July 2009, expiring 1 July 2010
  • Count 7: Fixed term of 1 year commencing 2 November 2009, expiring 1 November 2010
  • Count 8: Fixed term of 18 months commencing 2 January 2010, expiring 1 July 2011
  • Count 9 (including Form 1 matters): Non-parole period of 2 years commencing 2 March 2010, expiring 1 March 2012; balance of 2 years expiring 1 March 2014
  • Overall: total non-parole period of 5 years commencing 2 March 2007, expiring 1 March 2012; balance of term of 2 years expiring 1 March 2014

Key Takeaways

  • Extensive concurrent sentencing across multiple serious offences involving different victims can render a total effective sentence manifestly inadequate, even where individual sentence lengths are not themselves unreasonable.
  • The totality principle requires that the overall sentence structure reflect the full criminality involved; it does not permit a sentencing court to effectively discount the criminality of additional offences simply by running their sentences concurrently.
  • On a Crown appeal, the Court of Criminal Appeal confirmed it applies restraint, addressing the inadequacy by restructuring the relationship between sentences rather than increasing individual sentence lengths.
  • A sentencing judge's misidentification of the applicable maximum penalty is an error that the appellate court will take into account when reviewing whether the original sentences were properly calibrated.
  • Findings of special circumstances and discounts for early guilty pleas, once properly made, may be preserved by the Court of Criminal Appeal even when it otherwise intervenes to restructure the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61N(1), 66C(1), 66C(3), 91G(1)(a), 91H(3), 527C(1)(c)
- Firearms Act 1996 (NSW): s 65(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 160
- R v AJP [2004] NSWCCA 434
- R v Cotter [2003] NSWCCA 273
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v KM [2004] NSWCCA 65
- R v Knight (2005) 155 A Crim R 252
- R v Wall [2002] NSWCCA 42