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6
Court of Criminal Appeal 23 April 2009

CPW v R

[2009] NSWCCA 105

Also reported as 195 A Crim R 149
Sexual offences

Citation: CPW v R [2009] NSWCCA 105
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The appellant (referred to as CPW) pleaded guilty in the District Court to 13 offences of a sexual nature committed against female victims who were granddaughters or other members of his extended family. The offences spanned two distinct periods: seven "recent" offences committed between 2002 and 2006, and six "old" offences committed between 1982 and 1986.

Acting Judge Woods sentenced CPW across all 13 counts, with sentences structured to run partly concurrently and partly cumulatively. CPW sought leave to appeal against those sentences.

  • Whether the sentences imposed for the "old" offences were consistent with the law and sentencing practice applicable at the time those offences were committed
  • Whether the sentencing judge correctly applied fixed-term sentencing regimes that governed offences committed before later legislative changes introduced non-parole period structures
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, given the significant accumulation of sentences across 13 counts
  • Whether several of the sentences were infected by error in their structure or commencement dates

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The sentences for offences 1, 2, and 4 were confirmed. The sentences for the remaining ten offences were quashed and replaced.

A central issue concerned the "old" offences committed between 1982 and 1986. James J (with whom McClellan CJ at CL and Adams J agreed) held that those offences had to be sentenced in accordance with the law and sentencing practice in force at the time they were committed. Under the legislation applicable to those offences, the relevant sentencing regimes did not provide for non-parole periods in the same way as later statutes. This required the court to impose fixed terms rather than sentences with a non-parole period and parole period for several of those counts.

The Court also found that special circumstances existed arising from the substantial accumulation of sentences across the 13 counts. That accumulation justified adjusting the relationship between non-parole periods and head sentences where the standard ratio would otherwise apply.

The restructured sentences reduced the total fixed terms and non-parole periods, setting the earliest possible parole eligibility date at 13 August 2014, with the total head sentence length being 12 years and the total of fixed terms and non-parole periods being eight years.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed in part
  • Sentences for offences 1, 2, and 4 confirmed
  • Sentences for offences 3, 5, 6, 7, 8, 9, 10, 11, 12, and 13 quashed and replaced as follows:
  • Offence 3: fixed term of 6 months commencing 14 February 2009, expiring 13 August 2009
  • Offence 8: fixed term of 10 months commencing 14 August 2009, expiring 13 June 2010
  • Offences 9 and 11: concurrent fixed terms of 10 months commencing 14 February 2010, expiring 13 December 2010
  • Offence 10: fixed term of 14 months commencing 14 August 2010, expiring 13 October 2011
  • Offence 12: fixed term of 14 months commencing 14 June 2011, expiring 13 August 2012
  • Offence 13: fixed term of 10 months commencing 14 June 2011, expiring 13 April 2012
  • Offences 6 and 7: non-parole period of 1 year 8 months commencing 14 August 2012, expiring 13 April 2014, with a balance of term of 10 months
  • Offence 5 (with additional offences taken into account): non-parole period of 1 year commencing 14 August 2013, expiring 13 August 2014, with a balance of term of 4 years expiring 13 August 2018
  • Earliest parole eligibility date: 13 August 2014

Key Takeaways

  • Offences must be sentenced according to the law and sentencing practice in force at the time they were committed. Where that regime provided for fixed terms rather than non-parole and parole periods, a sentencing court must impose fixed terms accordingly.
  • The Court of Criminal Appeal confirmed that errors in applying the correct historical sentencing framework to "old" offences will justify intervention on appeal.
  • Special circumstances warranting a departure from the standard non-parole period ratio can arise from the accumulation of a large number of sentences across multiple counts, even where no other individualised factor exists.
  • Where sentences are restructured on appeal, the Court recalibrates commencement dates and concurrency arrangements to reflect the corrected regime, potentially altering the overall parole eligibility date.
  • The decision illustrates the complexity that arises when a single sentencing exercise spans offences committed under materially different legislative regimes across several decades.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act
- Crimes Act (NSW)
- Criminal Appeal Act
- Parole of Prisoners Act 1966
- Probation and Parole Act 1983
- Sentencing Act 1989

Cases:
- AJB v Regina (2007) 169 A Crim R 32
- Cahyahi v The Queen (2007) 168 A Crim R 41
- Close (1993) 65 A Crim R 72
- Featherstone v R [2008] NSWCCA 71
- GAC v R [2007] NSWCCA 287
- MJL v Regina [2007] NSWCCA 261
- Pearce v The Queen (1998) 194 CLR 610
- R v Ellis (1986) 6 NSWLR 603
- R v PLV (2001) 51 NSWLR 736
- R v Swan [2005] NSWCCA 252
- R v Holder (1983) 3 NSWLR 245
- R v MJR (2002) 130 A Crim R 481
- R v MMK [2006] NSWCCA 272
- Simpson (1992) 61 A Crim R 58