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Court of Criminal Appeal 21 February 2008

AJO v Regina

[2008] NSWCCA 28

Sexual offences
CRIMINAL LAW AND PROCEDURE IN PARTICULAR INSTANCE BAR OPERATIVE SINGLE COUNT QUASHED SENTENCE FOUR SEPARATE VICTIMS TOTALITY

Citation: AJO v Regina [2008] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 21 February 2008
Judge(s): McClellan CJ at CL; Grove J; Simpson J

Background

The appellant pleaded guilty in the District Court to thirteen sexual offences committed against four female victims, all members of his immediate or extended family. The offending spanned more than twenty years, beginning in December 1980 when the appellant was seventeen years old and continuing through to 2003 when he was forty. The victims were all young females, including sisters, a sister-in-law, and a niece-by-marriage.

Sentence was imposed by Marien DCJ at Campbelltown District Court on 2 February 2006. The overall structure involved fixed terms on most counts, with an effective non-parole period of five years and three months and a balance term of four years.

On appeal, the Crown conceded that one count (count 4, relating to an offence alleged to have occurred on 15 June 1987) could not stand. The prosecution of that count in 2004 was barred by a twelve-month time limitation that had applied under the then-operative s 78 of the Crimes Act 1900. That limitation had not been drawn to the sentencing judge's attention.

  • Whether the conviction on count 4 was invalidated by the twelve-month prosecution time bar under the now-repealed s 78 of the Crimes Act 1900, notwithstanding the appellant's guilty plea.
  • Whether, following the quashing of count 4, the overall sentence should be reduced on the ground of totality.

Decision

The Court accepted the Crown's concession that the prosecution of count 4 was time-barred under the repealed s 78 of the Crimes Act 1900, which prohibited commencement of proceedings more than twelve months after the alleged offence where the victim was aged between fourteen and sixteen years. Because the offence was alleged to have occurred on 15 June 1987 and proceedings were not commenced until 2004, the statutory bar was operative. The guilty plea did not cure the defect, and the conviction was quashed with a verdict of acquittal entered.

Leave to appeal against sentence was granted because the sentencing judge had considered count 4 as part of the overall sentencing exercise, including the application of the totality principle. However, the Court declined to reduce the overall sentence. The sentence on count 4 had been structured as wholly concurrent with the other sentences, meaning its quashing imposed no additional custodial consequence in practical terms.

Grove J, with whom McClellan CJ at CL and Simpson J agreed, held that the aggregate sentence remained appropriate. The offending involved four victims, extended over more than twenty years, and was visited upon victims sequentially within the appellant's family circle. The Court noted that the appellant had not responded to parental intervention as early as 1981 and had made only a token effort to seek counselling when some conduct came to light in 2000. While the Court acknowledged some improved prospects of rehabilitation evident from affidavit material, this did not warrant a reduction in the overall custodial term.

Orders Made

  • Conviction and sentence on count 4 quashed; verdict and judgment of acquittal entered on that count.
  • Leave to appeal against sentence on the remaining counts granted.
  • Appeal against sentence on the remaining counts dismissed.

Key Takeaways

  • A conviction entered on a guilty plea is not immune from being quashed where the prosecution was commenced outside a statutory time limitation; the plea cannot validate what the statute prohibited.
  • Under the now-repealed s 78 of the Crimes Act 1900, a twelve-month limitation period barred prosecution of certain sexual offences involving victims aged between fourteen and sixteen years, and that bar remained operative even where proceedings were brought decades later.
  • Quashing a concurrent sentence does not automatically trigger a reduction in overall sentence where the quashed count imposed no additional period of custody beyond what was already being served concurrently.
  • The totality principle requires an assessment of whether the aggregate sentence is proportionate to the overall criminality. Where offending spans more than twenty years and involves multiple victims within a family setting, a significant cumulative sentence may remain warranted even after one count is removed.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that its power to intervene under s 6 of the Criminal Appeal Act 1912 depends on reaching a conclusion that a less severe sentence should be imposed, and no such conclusion was reached here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61D(1), 61J(1), 61M(1), 66C(1), 71, 76, and the now-repealed s 78
- Child Welfare Act 1939 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v O'Donoghue (No 2) [2001] NSWCCA 495