Citation: SGJ v R; KU v R [2008] NSWCCA 258
Court: Court of Criminal Appeal, New South Wales
Date: 11 November 2008
Judges: Hodgson JA, Kirby J, Hislop J (Hodgson JA and Hislop J agreeing with Kirby J)
Background
The two appellants, a de facto couple who had lived together for approximately 20 years, each pleaded guilty to multiple serious sexual and other offences against children. The offences involved up to seven victims, some of whom were identified complainants and others whose images were recovered from a computer hard drive seized from the couple's home.
Both appellants were sentenced in the District Court by English DCJ on 27 August 2007. The husband faced 15 counts across two indictments, together with 18 additional matters listed on a Form 1. The wife faced 14 counts and had 16 matters on her Form 1.
Both appellants sought leave to appeal against their sentences, contending principally that the sentences were excessive and that the sentencing structure contained legal error.
Legal Issues
- Whether the sentencing judge erred by failing to fix a non-parole period for offences that attracted a standard non-parole period under the applicable legislation
- Whether the use of a single Form 1 covering offences against multiple victims was procedurally appropriate, or whether separate Forms 1 should be used for each victim
- Whether the sentences imposed for the child sexual offences were manifestly excessive
- Whether the parity principle required that any difference between the sentences of the co-offenders be justified
- Whether, even if error were established, the Court should decline to intervene under section 6(3) of the Criminal Appeal Act 1912 on the basis that no lesser sentence was warranted
Decision
The Court granted leave to appeal in both matters and found structural errors in the sentences as originally imposed. The primary error identified was the sentencing judge's failure to fix a non-parole period for certain offences that carried a standard non-parole period, which required correction as a matter of law.
On the Form 1 procedure, the Court indicated that where multiple victims are involved, the preferable practice is to have a separate Form 1 for each victim rather than combining all additional offences on a single document. Although this did not necessarily vitiate the sentencing exercise, it was identified as the appropriate procedural approach.
The Court rejected the contention that the sentences were manifestly excessive given the seriousness and number of the offences involved. Accordingly, the overall length of the sentences was not reduced. The appeals succeeded only to the extent that restructuring was required to correct the identified legal errors.
On parity, the Court took account of the differences between the two appellants, including the number of victims and the number of charges each faced, and constructed sentences that appropriately reflected those differences while maintaining internal consistency.
Orders Made
SGJ:
- Leave to appeal granted
- Appeal in respect of Count 4 of the second indictment dismissed and sentence confirmed
- Appeal allowed in respect of remaining counts on both indictments; sentences quashed and replaced with restructured sentences across 15 counts, with non-parole periods and additional terms as specified, and with the Form 1 matters taken into account on Count 4 of the second indictment (non-parole period of 11 years from 8 October 2009, additional term of 7 years expiring 7 October 2027)
KU:
- Leave to appeal granted
- Appeal allowed; all sentences quashed and replaced with restructured sentences across 14 counts, with non-parole periods and additional terms as specified, and with the Form 1 matters taken into account on Count 4 of the second indictment (non-parole period of 11 years from 8 October 2007, additional term of 7 years expiring 7 October 2025)
Key Takeaways
- Failing to fix a non-parole period for an offence that attracts a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 constitutes legal error requiring the sentence to be restructured on appeal, even where the overall length of the sentence is not reduced.
- Where a Form 1 relates to offences against multiple victims, the Court of Criminal Appeal indicated that the preferable practice is to prepare a separate Form 1 for each victim rather than listing all additional offences on a single document.
- In dismissing the challenge to the substantive length of the sentences, the Court confirmed that child sexual offences of this nature and multiplicity do not warrant reduction merely because the appellants are co-offenders with otherwise mitigating circumstances.
- The parity principle requires that sentencing differences between co-offenders be explicable by reference to objective differences in their criminality. Here, the husband's greater number of victims and additional charges justified the modest differences in the restructured sentences.
- Under section 6(3) of the Criminal Appeal Act 1912, the Court will decline to substitute a lesser sentence even where error is established if it is satisfied that no lesser sentence is warranted in all the circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61O(1), 91G(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse & Trafficking Act 1985 (NSW)
Cases:
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- De Simoni v The Queen (1981) 147 CLR 383
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Attorney General's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- XY v The Queen [2007] NSWCCA 72
- Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168
- Clare v The Queen [2008] NSWCCA 30
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- Lowe v The Queen (1984) 154 CLR 606