Citation: DOUSHA, Malcolm Ross v R [2008] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 1 December 2008
Judges: Bell JA, Latham J, Fullerton J
Background
The applicant pleaded guilty in the District Court to eight counts of child sexual offending committed in 1986 to 1989. The counts comprised six charges of assault with an act of indecency against a child under 16, one charge of sexual intercourse with a child aged between 10 and 16, and one charge of sexual intercourse with a child under 10. The two victims were sisters, aged between 5 and 11 at the time of the offending.
The sentencing judge, Ainslie-Wallace DCJ, found that the offending was planned and deliberate. The applicant had positioned himself as a carer for the children while their father worked late, and had organised his own holidays to coincide with school holidays in order to facilitate the abuse.
After applying a 15 per cent discount for the guilty pleas and making a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999, the sentencing judge imposed a partially accumulated sentence totalling 10 years and 6 months, with an overall non-parole period of 7 years commencing 5 October 2007. The applicant sought leave to appeal against the severity of those sentences.
Legal Issues
- Whether the sentencing regime in force at the time of the offences generally produced lower sentences than those imposed under the current regime, and whether this was relevant to the sentences imposed
- Whether the sentencing judge's finding of special circumstances was adequately reflected in the ratio between the non-parole period and the balance of term across the overall sentence
- Whether the specification of a non-parole period for offences committed before the introduction of the Crimes (Sentencing Procedure) Act 1999 was appropriate
- Whether the extent of accumulation across the eight counts resulted in an overall sentence that was excessive or manifested error
Decision
The Court of Criminal Appeal granted leave to appeal but allowed the appeal only in a narrow respect, confined to the structure of the sentence imposed for count 8, which involved the most serious offence: sexual intercourse with a child under 10 years.
The Court confirmed that the sentences for counts 1 to 7 were not excessive, either individually or in their combined structure. The partial accumulation across those counts was found to be appropriate, given that the offending involved two separate child victims and extended over several years. The Court expressly noted that the totality principle applies in both directions: it operates not only to prevent a crushing overall sentence, but also to ensure the total sentence is not unduly lenient in cases involving discrete, serious offending.
On count 8, Fullerton J found that the non-parole period of 3 years, when viewed against the additional term of 3 years and 6 months, did not adequately reflect the special circumstances finding as intended by the sentencing judge. To achieve an effective non-parole period of 5 years across the overall sentence structure and to properly reflect the relevant sentencing legislation, the Court quashed the sentence on count 8 and substituted a non-parole period of 1 year (commencing 5 October 2011 and concluding 4 October 2012) with an additional term of 5 years and 6 months. The overall structure of the sentence was thereby preserved, but with the ratio between non-parole and additional term in count 8 better reflecting the special circumstances finding.
Orders Made
- Leave to appeal granted
- The sentence imposed for count 8 is quashed; in substitution, the applicant is sentenced to a non-parole period of 1 year commencing 5 October 2011 and concluding 4 October 2012, with an additional term of 5 years and 6 months
- The sentences imposed in respect of counts 1 to 7 are confirmed
Key Takeaways
- A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 must be adequately reflected not only in individual sentence components, but in how those components interact across an overall partially accumulated sentence structure.
- The totality principle is not a one-way mechanism: as confirmed by reference to R v KM [2004] NSWCCA 65, courts are equally required to ensure an overall sentence is not too lenient as they are to avoid a crushing result, particularly where offending is discrete and involves multiple victims.
- Partial accumulation across multiple counts is not itself an error, provided the sentencing court has paid genuine regard to totality and the approach required by Pearce v The Queen (1998) 194 CLR 610.
- Specifying a non-parole period for offences predating the Crimes (Sentencing Procedure) Act 1999 raised distinct issues about the applicable sentencing regime, requiring careful attention to the legislative framework in force at the time of each offence.
- In dismissing most grounds of appeal, the Court of Criminal Appeal intervened only on the limited question of whether the sentence structure for one count accurately implemented the sentencing judge's own stated intention regarding special circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61E(1)(A), 66A, 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)
Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v KM [2004] NSWCCA 65
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- Bradbury v R [2008] NSWCCA 93
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Clare v R [1984] 2 NSWLR 522
- Featherstone v R [2008] NSWCCA 71
- GAT v R [2007] NSWCCA 208
- Ibbs v The Queen (1987) 163 CLR 447
- R v Cunningham [2006] NSWCCA 176
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- R v Jordan [1983] NSWCCA 254
- R v Lyne [1982] NSWCCA 84
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v PGM [2008] NSWCCA 172
- Ryan v R [2001] HCA 21; 206 CLR 267