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Court of Criminal Appeal 20 October 2008

Leddin v R

[2008] NSWCCA 242

Sexual offences

Citation: Leddin v R [2008] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 20 October 2008
Judge(s): McClellan CJ at CL, Simpson J, Hislop J

Background

The applicant pleaded guilty in the District Court to one count of unlawful detention with the intention of obtaining sexual intercourse while occasioning actual bodily harm, and three counts of aggravated sexual assault (sexual intercourse without consent while maliciously inflicting actual bodily harm). The offences arose from a sustained and violent attack on a lone woman in Wagga Wagga in the early hours of 13 April 2006. The sentencing judge also took into account 12 further sexual offences on a Form 1.

At first instance, Norrish QC DCJ sentenced the applicant to an effective overall term of 12 years with an additional term of 4 years. The applicant sought leave to appeal, challenging the structure of the sentences imposed for three of the four counts.

  • Whether the sentencing judge erred by failing to set a non-parole period for Counts 2 and 3
  • Whether the sentencing judge erred by failing to give reasons for imposing a fixed term on Count 1
  • Whether the sentence on Count 1, if intended as a minimum term, was manifestly excessive
  • Whether the aggregate head sentence was manifestly excessive (added by amendment)

Decision

The Court of Criminal Appeal granted leave to appeal and identified two technical errors in the structure of the sentences below. The sentencing judge had not set non-parole periods for Counts 2 and 3, and had not given reasons for imposing a fixed term on Count 1 rather than a head sentence with a non-parole period. These were errors requiring correction even though the overall effective sentence was not disturbed.

On the question of manifest excess, Hislop J (with whom the other judges agreed) held that the overall effective sentence of 12 years' non-parole period with a 4-year additional term was within the permissible sentencing range. The offences were described as a connected series of sexual assaults of a cruel and degrading nature, accompanied by detention, physical violence, and threats to kill the complainant and her family. The complainant was blameless and defenceless, and suffered long-term psychological harm. There was nothing in the applicant's objective or subjective circumstances capable of reducing the overall sentence.

The Court resentenced on Counts 1, 2 and 3 to correct the structural errors. Because the Count 1 sentence would expire before the non-parole period set for Count 4, a fixed term was appropriate for Count 1 on resentencing. The Count 4 sentence was confirmed. The earliest parole eligibility date remained 8 June 2018.

Orders Made

  • Leave to appeal granted
  • Sentences on Counts 1, 2 and 3 quashed and replaced:
  • Count 1: fixed term of 9 years, commencing 9 June 2006 and expiring 8 June 2015
  • Count 2: 8 years 4 months (commencing 9 June 2006, expiring 8 October 2014) with a balance of term of 2 years 9 months (expiring 8 July 2017)
  • Count 3: 8 years 4 months (commencing 9 June 2006, expiring 8 October 2014) with a balance of term of 2 years 9 months (expiring 8 July 2017)
  • Sentence on Count 4 confirmed
  • Earliest parole eligibility date: 8 June 2018

Key Takeaways

  • The Court of Criminal Appeal corrected structural sentencing errors (failure to set non-parole periods and failure to give reasons for a fixed term) without altering the overall effective sentence, demonstrating that technical errors in individual counts do not necessarily warrant a reduction in the aggregate penalty.
  • A fixed term is appropriate where an individual count sentence will expire before the non-parole period fixed for a later, cumulative count.
  • Where an offender's subjective and objective circumstances offer nothing favourable, and the offending is of an extreme and sustained nature, an overall non-parole period of 12 years with a 4-year additional term for multiple aggravated sexual assault offences was held to be within range.
  • The High Court subsequently refused special leave to appeal (Leddin v R [2009] HCASL 85), leaving the Court of Criminal Appeal's resentencing undisturbed.
  • Under the standard non-parole period provisions applicable at the time, the s 61J(1) offences each carried a 10-year standard non-parole period against a maximum of 20 years imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 86(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Rice [2004] NSWCCA 384
- R v Thomas (1993) 65 A Crim R 269
- R v Romano [2004] NSWCCA 380
- R v Knight [2004] NSWCCA 145
- Leddin v R [2009] HCASL 85 (High Court, special leave refused)