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Court of Criminal Appeal 19 November 2008

REGINA v WC

[2008] NSWCCA 268

Sexual offences
CRIMINAL LAW SENTENCING APPEAL CROWN APPEAL AGAINST SENTENCE APPLICATION OF THE TOTALITY PRINCIPLE

Citation: Regina v WC [2008] NSWCCA 268
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2008
Judge(s): McClellan CJ at CL, Hall J, Harrison J

Background

The respondent was convicted after trial in the Sydney District Court on five counts of sexual offences against a child complainant aged 11 or 12 years. The offences occurred between November 1999 and December 2000 and included multiple counts of sexual intercourse with a person aged under 16, indecent assault in circumstances of aggravation, and inciting a person under 16 to an act of indecency.

At the time of sentencing by Flannery DCJ on 11 April 2008, the respondent was already serving substantial sentences imposed by other courts, including convictions for manslaughter and multiple counts of child sexual offences. That pre-existing total effective sentence ran from 18 September 2003 to 16 October 2040, with a non-parole period expiring on 16 July 2031.

The sentencing judge imposed all five new sentences as concurrent fixed terms commencing on 16 July 2030, producing an aggregate fixed term of two years expiring on 15 July 2032. The Crown appealed on the ground that those sentences were manifestly inadequate.

  • Whether the individual sentences imposed on each of the five counts were manifestly inadequate
  • Whether the aggregate sentence across the five counts was manifestly inadequate
  • Whether the total effective sentence, taking into account the pre-existing sentences already being served, was manifestly inadequate
  • Whether the sentencing judge correctly applied the totality principle in the particular circumstances of an offender already serving a very lengthy existing sentence

Decision

Hall J (with McClellan CJ at CL and Harrison J agreeing) dismissed the appeal. The court found that Flannery DCJ had correctly identified and applied the totality principle in sentencing the respondent. The sentences, while lenient, did not reach the threshold required to justify appellate intervention on a Crown appeal.

The central issue was how the totality principle operates where an offender is already serving an exceptionally long aggregate sentence. The court confirmed that imposing sentences which, in combination with existing sentences, would produce a crushing effect, destroying any reasonable expectation of a useful life after release, may warrant amelioration of what would otherwise be the appropriate individual penalties. The court drew on the principle articulated in Regina v MAK, noting that such an effect increases the severity of punishment and undermines prospects for rehabilitation.

At the same time, the court acknowledged the need for caution. Applying the totality principle must not create the impression that additional serious offending attracts no real penalty, or that multiple offending effectively earns a discount. The court was satisfied that Flannery DCJ had navigated both considerations appropriately.

Applying the constraints governing Crown appeals, the court concluded that no error in the exercise of the sentencing discretion had been established at a level warranting intervention in the public interest.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The totality principle can justify significantly ameliorated sentences where the addition of new sentences to a pre-existing, very lengthy term would produce a crushing effect on the offender, eliminating any realistic prospect of release and rehabilitation.
  • A sentencing court applying the totality principle must simultaneously guard against creating the impression that serious additional offending attracts little or no meaningful penalty.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the relevant threshold for appellate intervention on a Crown appeal is a demanding one: leniency alone is insufficient if the sentencing discretion was otherwise properly exercised.
  • Where an offender is already serving sentences spanning decades, the effective additional period imposed by new sentences is a legitimate and significant factor in calibrating the total punishment.
  • No error was established in the District Court's approach to structuring concurrent fixed terms commencing at the expiry of the existing non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61N(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Holder [1983] 3 NSWLR 245
- Regina v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Regina v Rossi (unreported, Court of Criminal Appeal of SA, 20 April 1988)
- Regina v Wall [2002] NSWCCA 42