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Court of Criminal Appeal 4 December 2008

GRAHAM v R

[2008] NSWCCA 309

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences

Citation: Graham v R [2008] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 4 December 2008
Judge(s): Hodgson JA, James J, Price J

Background

The applicant pleaded guilty in the District Court to nine offences committed against multiple female victims in late 2005 and early 2006. The offences included two counts of aggravated sexual assault, one count of indecent assault, four aggravated robberies, one aggravated assault with intent to rob, and one count of common assault. Two further aggravated robbery offences were taken into account on a Form 1 basis when sentencing for offence 1.

The offences were serious and involved significant violence. In one incident, the applicant pushed a 54-year-old victim to the ground and stole her handbag, causing bruising, abrasions, and a laceration. In a separate incident involving the same victim on a different night, the applicant committed two aggravated sexual assaults, an indecent assault, and an aggravated robbery.

District Court Judge Finnane QC imposed a combination of fixed-term sentences and one non-parole period, producing a total custodial period of 20 years plus a five-year additional term. The applicant sought leave to appeal on the grounds that several individual sentences were manifestly excessive and that the overall sentence failed to reflect the totality principle properly.

  • Whether several individual sentences were manifestly excessive in the circumstances
  • Whether the overall structure of the sentences properly applied the totality principle (that is, the principle requiring a court to ensure the combined effect of multiple sentences is proportionate to the totality of the offending)
  • Whether the sentences for the aggravated sexual assault offences appropriately reflected the standard non-parole period provisions and the mitigating effect of the guilty pleas

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in full. The Court found that a number of individual sentences were manifestly excessive, and that the cumulative structure of the sentences imposed by the District Court produced an overall term that did not properly reflect the totality principle.

James J, with whom Hodgson JA and Price J agreed, assessed offences 5 and 6 (the aggravated sexual assaults against victim EY) as mid-range in objective seriousness. The Court found there were legitimate reasons to depart from the standard non-parole period for those offences, specifically the applicant's pleas of guilty, the need to comply with the totality principle across nine offences, and the need to ensure an appropriate parole eligibility period relative to the total length of the sentences.

The original sentences were quashed and replaced with new sentences reducing the total fixed terms and non-parole periods from 20 years to 15 years, with a balance of term of 5 years. The restructured sentences also shifted the parole eligibility date, with the earliest date for release on parole being 5 January 2021.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed in full
  • All sentences imposed by the District Court quashed
  • New sentences substituted as follows:
  • Offence 1 (aggravated robbery, victim RB): fixed term of 6 years, 6 January 2006 to 5 January 2012
  • Offence 2 (aggravated robbery, victim SB): fixed term of 3 years 7 months, 6 January 2006 to 5 August 2009
  • Offence 3 (aggravated robbery, victim SK): fixed term of 3 years 9 months, 5 April 2012 to 5 January 2016
  • Offence 4 (indecent assault, victim EY): fixed term of 2 years 2 months, 6 January 2016 to 5 March 2018
  • Offences 5 and 6 (aggravated sexual assaults, victim EY): non-parole period of 5 years (6 January 2016 to 5 January 2021) plus balance of term of 5 years (6 January 2021 to 5 January 2026), making a head sentence of 10 years each
  • Offence 7 (aggravated robbery, victim EY): fixed term of 5 years, 6 January 2011 to 5 January 2016
  • Offence 8 (aggravated assault with intent to rob, victim SR): fixed term of 3 years, 6 January 2013 to 5 January 2016
  • Offence 9 (common assault, victim ET): fixed term of 1 year, 6 January 2015 to 5 January 2016
  • Earliest parole eligibility date: 5 January 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle remains a significant consideration when structuring sentences across multiple discrete offences, even where each individual sentence may appear proportionate in isolation.
  • A guilty plea constitutes a legitimate basis for departing from a standard non-parole period, alongside other factors such as the structural requirements of a fair aggregate sentence.
  • Assessing offences 5 and 6 as mid-range in objective seriousness reflected the Court's view that aggravated sexual assault offences, while serious, must still be assessed on their particular facts before a non-parole period is fixed.
  • The aggregate reduction from 20 years to 15 years (in fixed terms and non-parole periods) illustrates that manifest excess in individual sentences can compound across a long series of offences and materially distort the overall sentencing outcome.
  • Pleas of guilty entered at different stages of proceedings were nonetheless weighed in the applicant's favour as a mitigating factor, consistent with established sentencing practice.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)

Cases: No specific cases were cited in the portions of the judgment provided.