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Court of Criminal Appeal 1 April 2008

WC v R

[2008] NSWCCA 75

Sexual offences
SENTENCE APPEAL

Citation: WC v R [2008] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 1 April 2008
Judges: McClellan CJ at CL, James J, Hoeben J

Background

The applicant had pleaded guilty to seven counts of indecent assault on a child, committed in 1985 and 1986 when the victim was aged eight to nine years. These offences were dealt with in the District Court at Newcastle, where Judge Taylor imposed sentences on 3 November 2006 (the Newcastle sentences). Each offence carried a maximum penalty of six years' imprisonment under s 61E of the Crimes Act 1900 (NSW).

The Newcastle sentences were structured to run in partial accumulation upon a separate set of sentences imposed by Judge Garling at Port Macquarie on 2 August 2006, which related to seven other counts of child sexual assault. Judge Taylor had designed the Newcastle sentences to commence from the point at which the Port Macquarie aggregate non-parole period would expire, being 1 June 2013, in order to give effect to the totality principle (that is, the principle that the combined effect of all sentences must remain proportionate to the overall offending).

After the Newcastle sentences were imposed, the Port Macquarie sentences were partially quashed on appeal to the Court of Criminal Appeal. Three counts were re-sentenced, with the result that the aggregate non-parole period for the Port Macquarie sentences expired on 1 June 2011, not 1 June 2013. The Newcastle sentences, however, still commenced on 2 June 2013, leaving a two-year gap. The Court of Criminal Appeal had not been informed of the Newcastle sentences when it heard the Port Macquarie appeal.

  • Whether the commencement dates of the Newcastle sentences should be adjusted to reflect the earlier expiry of the Port Macquarie non-parole period following the successful appeal in those proceedings.
  • Whether leave to appeal should be granted on that basis.

Decision

The applicant did not seek any reduction in the individual or aggregate length of the Newcastle sentences. The sole issue was the appropriate adjustment of commencement dates so that the Newcastle sentences would begin at the expiry of the Port Macquarie aggregate non-parole period as ultimately determined by the Court of Criminal Appeal, that is, 1 June 2011.

The Crown did not oppose the adjustment, and the Court found no reason to refuse it. Hoeben J observed that, had the Newcastle sentences been brought to the attention of the Court when it dealt with the Port Macquarie appeal, the adjustment could have been made at that time. The Court granted leave to appeal, quashed the original Newcastle sentences, and re-sentenced the applicant with commencement dates shifted forward by approximately two years.

Orders Made

  • Leave to appeal granted.
  • Sentences imposed by Judge Taylor on 3 November 2006 quashed.
  • Applicant re-sentenced on all seven counts with adjusted commencement dates, as follows:
  • Counts 1 and 2: fixed term of 9 months commencing 2 June 2011, expiring 1 March 2012.
  • Counts 3 and 4: fixed term of 9 months commencing 2 July 2011, expiring 1 April 2012.
  • Counts 5 and 7: fixed term of 9 months commencing 2 August 2011, expiring 1 May 2012.
  • Count 6: non-parole period of 9 months commencing 2 September 2011, expiring 1 June 2012, with a balance of term of 18 months expiring 1 December 2013.

Key Takeaways

  • Where a successful appeal in separate but related proceedings alters the aggregate non-parole period upon which other sentences were structured to commence, those other sentences may need their commencement dates adjusted accordingly.
  • The totality principle, which governs the combined effect of multiple sentences for connected offending, can produce errors that only emerge after one set of sentences is varied on appeal in separate proceedings.
  • A failure to inform the Court of Criminal Appeal of related sentences when a connected appeal is being heard can create structural inconsistencies in the overall sentencing regime, requiring a further appeal to correct.
  • In dismissing any challenge to the quantum of sentences, the Court confirmed that an adjustment to commencement dates alone is a legitimate and discrete ground of appeal.
  • No error existed in the original length of the Newcastle sentences; the re-sentencing was confined entirely to correcting the temporal relationship between the two groups of sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61E (indecent assault on a child; maximum penalty 6 years' imprisonment)

Cases:
- No cases were formally cited in the judgment. The decision references the earlier Court of Criminal Appeal proceedings concerning the Port Macquarie sentences, but those proceedings are not separately named or cited in the text provided.