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16
Court of Criminal Appeal 23 April 2008

FEATHERSTONE v R

[2008] NSWCCA 71

Also reported as (2008) 183 A Crim R 540
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE APPEAL ALLOWED SENTENCES QUASHED.

Citation: Featherstone v R [2008] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 23 April 2008
Judge(s): Bell JA; Adams J; Latham J

Background

The applicant, a 58-year-old former music teacher at a private girls' school, was convicted in 2003 of child pornography offences and sentenced to two years' imprisonment with a one-year non-parole period. The publicity surrounding that conviction prompted three further complainants to come forward, and police re-opened a 1986 complaint. On 4 September 2004, the day he was due to be released on parole, the applicant was arrested and charged with sexual offences against four complainants.

On 12 July 2006, the applicant pleaded guilty to 12 counts of sexual offences committed between December 1982 and October 1990. The victims were aged between 11 and 14 years at the time. The offences included indecent assault and procuring acts of indecency under provisions of the Crimes Act 1900 that have since been repealed.

On 14 November 2006, the District Court sentenced the applicant to an aggregate term of 16 years and 11 months with an effective non-parole period of 12 years and 11 months. The applicant appealed against the severity of both the individual sentences and the aggregate sentence.

  • Whether the individual sentences imposed for each count were excessive, having regard to the maximum penalties applicable at the time of the offences.
  • Whether the sentencing judge correctly applied the law governing the ratio between non-parole periods and head sentences, given that the offences were committed before the introduction of the Sentencing Act 1989 (NSW).
  • Whether the sentencing practice prevailing at the date of the offences constituted "special circumstances" justifying departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.

Decision

The Court of Criminal Appeal allowed the appeal and quashed all sentences imposed in the District Court. Bell JA (with whom Adams J and Latham J agreed) found error in the sentencing approach below and re-sentenced the applicant on each count.

A central issue was the applicable sentencing framework. Because all of the offences predated the Sentencing Act 1989, the sentencing practice at the time of offending was relevant and constituted special circumstances justifying a different ratio between non-parole period and total sentence than that ordinarily required. This principle reflects the requirement that an offender not be sentenced more harshly than was the norm at the time the offences were committed.

Several of the individual sentences imposed in the District Court also exceeded, or sat at the very top of, the applicable maximum penalties for the relevant offences as they stood at the time of the conduct. The Court found this produced sentences that were excessive when measured against the correct legislative framework.

The Court re-sentenced the applicant on all 12 counts, constructing a new cascade of cumulative sentences running from 4 September 2004. The revised sentence structure produced a materially shorter aggregate term, with the final sentence now expiring on 3 April 2017.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; all sentences imposed in the District Court quashed.
  • The applicant re-sentenced as follows:
  • Count 1: Fixed term of 11 months from 4 September 2004, expiring 3 August 2005.
  • Count 2: Fixed term of nine months from 4 September 2004, expiring 3 June 2005.
  • Count 3: Non-parole period of 14 months from 4 August 2005 (expiring 3 October 2006), balance of term of 14 months expiring 4 December 2007; parole directed at end of non-parole period.
  • Count 4: Fixed term of 14 months from 4 August 2005, expiring 3 October 2006.
  • Count 5: Non-parole period of 14 months from 4 March 2006 (expiring 3 May 2007), balance of 14 months expiring 3 July 2008; parole directed.
  • Count 6: Fixed term of 14 months from 4 March 2006, expiring 3 May 2007.
  • Count 11: Non-parole period of 14 months from 4 May 2007 (expiring 3 July 2008), balance of 14 months expiring 3 September 2009; parole directed.
  • Count 12: Fixed term of nine months from 4 July 2008, expiring 3 April 2009.
  • Count 7: Non-parole period of one year and 10 months from 4 April 2009 (expiring 3 February 2011), balance of one year and 10 months expiring 4 December 2012.
  • Count 8 (including 12 Form 1 offences): Non-parole period of two years and five months from 4 April 2009 (expiring 3 September 2011), balance of five years and seven months expiring 3 April 2017.
  • Count 9: Non-parole period of one year and 10 months from 4 April 2009 (expiring 3 February 2011), balance expiring 4 December 2012.
  • Count 10: Non-parole period of two years from 4 April 2009 (expiring 3 April 2011), balance of two years expiring 3 April 2013.

Key Takeaways

  • Where sexual offences were committed before the Sentencing Act 1989 (NSW) came into operation, the sentencing practice prevailing at the date of the offending constitutes special circumstances that can justify departing from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
  • Sentences that exceed, or press against the ceiling of, the maximum penalty applicable to an offence at the time it was committed will be vulnerable to appellate intervention for excess.
  • The Court of Criminal Appeal confirmed that historical sentencing practice is a substantive consideration in re-sentencing for old offences, not merely a technical point, and it materially affected each individual sentence on the indictment.
  • In allowing the appeal, the Court quashed all 12 sentences and re-sentenced the applicant itself, reducing the aggregate term and restructuring the non-parole period across all counts.
  • The decision is consistent with earlier Court of Criminal Appeal authority, including cases such as AJB v R [2007] NSWCCA 51 and MJL v R [2007] NSWCCA 261, applying the same principle in comparable historical sexual offence sentencing appeals.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Parole of Prisoners Act 1966
- Probation and Parole Act 1983
- Probation and Parole (Serious Offenders) Amendment Act 1987
- Sentencing Act 1989 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51
- Deakin v R (1984) 54 ALJR 765
- MJL v R [2007] NSWCCA 261
- R v Bamford (unreported), Court of Criminal Appeal, 23 July 1991
- R v Davie (unreported), Court of Criminal Appeal, 10 June 1992
- R v Eagles (unreported), Court of Criminal Appeal, 16 December 1993
- R v Fisk (unreported), Court of Criminal Appeal, 21 July 1998
- R v Hill (unreported), Court of Criminal Appeal, 7 July 1992
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v Todd [1982] 2 NSWLR 517
- R v Way (2004) 60 NSWLR 168