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Court of Criminal Appeal 18 December 2008

NRW v R

[2008] NSWCCA 318

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE GRAVE CRIMES NO CHALLENGE TO OVERALL SENTENCE

Citation: NRW v R [2008] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 18 December 2008
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The applicant pleaded guilty in the Wollongong District Court to multiple sexual offences committed against three children over more than a decade: his natural daughter, his stepdaughter, and his stepson. The offending spanned from 1989 to 2001 and involved serious and repeated abuse of children ranging from six years old into their teenage years. The applicant was in custody from the date of his arrest in February 2007.

Conlon DCJ sentenced the applicant to a total effective sentence of 14 years, with a non-parole period expiring on 6 February 2021, leaving a balance (parole) term of five years. His Honour made a finding of special circumstances, referencing the accumulation of sentences and the applicant's need for an extended period of supervision on release.

The applicant sought leave to appeal against the severity of the sentence. Critically, he did not challenge the overall sentence length. His argument focused entirely on a narrow question about the relationship between the non-parole period and the total term.

  • Whether the sentencing judge's finding of special circumstances impliedly expressed an intention to set the non-parole period at a proportion of the total term materially less than 75 percent.
  • Whether the resulting "arithmetic" ratio of just under 74 percent disclosed a sentencing error.

Decision

Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, the balance of a sentence (the parole period) must not exceed one-third of the non-parole period unless special circumstances are found and reasons given. Where no special circumstances exist, the non-parole period will represent 75 percent of the total term.

The applicant argued that because his Honour found special circumstances, his Honour must have intended the non-parole period to fall below 75 percent of the total. From this, the applicant contended that the resulting arithmetic, producing a ratio of just under 74 percent, revealed an internal inconsistency amounting to error.

Grove J rejected this reasoning. His Honour's stated purpose in finding special circumstances was to create a sufficiently long parole period to allow for extended supervision, not to achieve any specific numerical ratio. A five-year balance term was plainly adequate for that purpose.

The Court also noted that the sentencing judge's concluding remarks demonstrated full awareness of the relationship between the component terms. No error was established, and the Court further observed that the applicant could be considered fortunate that no cumulative terms had been imposed for the offences committed against the male stepchild.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not, by itself, imply that a sentencing judge intended to achieve a non-parole period representing a specific proportion of the total term below 75 percent.
  • The Court of Criminal Appeal confirmed that the purpose behind a special circumstances finding is to be assessed by reference to the judge's stated reasoning, not inferred solely from the resulting arithmetic.
  • Where the stated purpose of a special circumstances finding is to ensure an adequate period of potential supervision on parole, a five-year balance term was found to be more than sufficient for that purpose.
  • No sentencing error arises merely because the ratio of non-parole period to total term falls marginally below 75 percent, provided the sentencing judge's actual intentions are otherwise clear and consistent.
  • In dismissing the appeal, the Court noted that the gravity of the offending, involving prolonged sexual abuse of multiple children by a person in a position of trust, fully justified a lengthy minimum custodial term.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

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