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Court of Criminal Appeal 15 April 2009

AA v Regina

[2009] NSWCCA 109

Sexual offencesAssault & violenceTheft & property
SENTENCE APPEAL RELATIONSHIP OF OFFENCES AVOIDANCE OF DOUBLE PUNISHMENT NEED FOR PRECISION.

Citation: AA v Regina [2009] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 15 April 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The applicant, a juvenile male aged sixteen and a half at the time of the offending, was convicted of four offences arising from the abduction of a 32-year-old woman at Bonnyrigg on 14 May 2006. The offences included two counts of aggravated sexual intercourse without consent (involving a knife), armed carjacking, and detaining a person with intent to obtain an advantage. A larceny matter was taken into account on a Form 1 schedule.

The sentencing judge in the District Court imposed sentences totalling an effective term of 13 years, with a non-parole period of 9 years, to be served as a juvenile until the applicant turned 21. The sentences were accumulated across all four counts.

The applicant sought leave to appeal on the basis that, while no individual sentence was said to be erroneous, the combined effect of the accumulation produced an overall sentence that was manifestly excessive.

  • Whether the accumulated sentences, taken together, were manifestly excessive in light of the totality of the applicant's criminality
  • Whether the sentencing judge had double-punished the applicant by incorporating the criminality of the sexual assault offences into the sentence for the detention offence (or vice versa), contrary to the principle in Pearce v The Queen
  • Whether any implicit error could be inferred from the sentencing outcome itself

Decision

Adams J (with McClellan CJ at CL and James J agreeing) found no error in the approach taken by the sentencing judge. The Court accepted that the offences overlapped factually, since the sexual assaults, the detention, and the carjacking all arose from the same episode. However, the question was whether the judge had impermissibly punished the applicant twice for the same criminality.

On the double punishment issue, the Court examined the structure and quantum of each sentence. It found that the sentence imposed for the detention offence was explicable entirely by reference to the incidents of that offence: the use of a knife, non-sexual acts of violence, and the detention itself lasting 20 to 30 minutes. Had the judge incorporated the sexual assault criminality into that sentence, the term would necessarily have been far greater.

The same analysis applied to the carjacking sentence. The Court noted that the sentencing judge had explicitly referred to Pearce and to the concept of overlapping offences, demonstrating he was alive to the double punishment risk, even if his language was at times imprecise.

The Court concluded that none of the specific matters raised by counsel pointed to any identifiable error, and that the sentencing outcome itself did not bespeak error. The effective sentence of 13 years with a 9-year non-parole period was within the appropriate range given the serious nature of the sexual offences.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where multiple offences arise from a single episode, sentencing judges must take care not to punish an offender twice for the same criminality across separate sentences, in accordance with the principle in Pearce v The Queen.
  • Scrutinising whether double punishment has occurred requires examining the actual quantum of each sentence: if a sentence is explicable by reference to the specific incidents of that offence alone, a court will be slow to infer that criminality from other offences was improperly incorporated.
  • Imprecision in a sentencing judge's language does not necessarily establish error, provided the structure of the sentences as a whole demonstrates awareness of and compliance with the totality principle.
  • In dismissing the appeal, the Court held that an assertion of implicit error drawn solely from the sentencing outcome is insufficient where counsel cannot identify any express error and the result falls within the appropriate range.
  • The standard non-parole period provisions and the Children (Criminal Proceedings) Act 1987 s 15 were engaged but the s 15 ground was abandoned at the hearing, leaving the accumulation and double punishment questions as the sole live issues.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) s 15
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2)
- Crimes Act 1900 (NSW) ss 61J(1), 86(1)(b), 154C(2)

Cases
- Pearce v The Queen (1998) 194 CLR 610 (the leading authority on avoidance of double punishment in cumulative sentencing)
- Brooks v R [2006] NSWCCA 169
- CM v Regina [2008] NSWCCA 195
- R v AEM & Ors [2002] NSWCCA 58
- R v Jones [2003] NSWCCA 54