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Court of Criminal Appeal 18 December 2009

SENDY, Ian William v R

[2009] NSWCCA 299

Sexual offencesTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE MULTIPLE ACTS OF INDECENCY LARCENY BREAK AND ENTER WITH INTENT ALL OFFENCES HAVE A SEXUAL ELEMENT

Citation: SENDY, Ian William v R [2009] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judge(s): Basten JA, Fullerton J, McCallum J

Background

The applicant was sentenced in the District Court at Griffith in February 2008 for a series of offences committed between July 2006 and January 2007. The offences included multiple acts of indecency against young girls in public spaces, larceny, and two counts of breaking and entering with intent. All offences carried either a sexual element or a sexual dimension in the manner of their commission.

The applicant pleaded guilty to four counts on indictment and four offences charged by Court Attendance Notice, with four further larceny offences taken into account on a Form 1. The sentencing judge applied differentiated guilty plea discounts: 25 per cent for the Court Attendance Notice offences and 15 per cent for the indictment counts, on the basis that the indictment pleas came later in the proceedings.

The applicant sought leave to appeal against the sentences imposed on the four indictment counts, raising three grounds relating to the guilty plea discounts, an erroneous finding of aggravation, and the structure of the non-parole period under section 44 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by applying a lower guilty plea discount (15 per cent rather than 25 per cent) to the indictment counts, given the circumstances in which those pleas were entered
  • Whether the sentencing judge erred by treating the applicant's bail status as an aggravating factor on count 2, when the applicant was not in fact on bail at the time of that offence
  • Whether the sentencing judge erred under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 by setting a balance of term in excess of one-third of the non-parole period on counts 2 and 3 without making a formal finding of special circumstances

Decision

On the guilty plea discount, the Court found no demonstrated error. The applicant's pleas on indictment were entered after committal for trial, and any explanation for the delay in entering those pleas had not been raised before the sentencing judge. The Court could not be satisfied on the material before it that the 15 per cent discount was wrong.

The Crown conceded that the sentencing judge had wrongly treated the applicant's bail status as an aggravating factor on count 2, since the applicant had not in fact been arrested or charged at the time of that offence. However, the Court found that this error did not produce an excessive sentence. The overall sentence of five years for count 2, when viewed against the standard non-parole period of five years applicable to that offence and the seriousness of the conduct, was otherwise within range. No lesser sentence was warranted in law.

On the section 44 issue, the Court acknowledged that the sentencing judge had not made a formal finding of special circumstances, yet the balance of term exceeded one-third of the non-parole period on counts 2 and 3. Fullerton J examined the structure of the accumulated sentences and concluded that the ratio between the aggregate non-parole period and the overall sentence, viewed as a whole, was defensible. McCallum J added a clarification, endorsing the approach in Hejazi v R: where sentences are accumulated, it is permissible to reduce the non-parole period on the final sentence to reflect an appropriate aggregate ratio, with the balance of term on an individual count being assessed by reference to the overall sentence structure.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A differentiated guilty plea discount is available where pleas on indictment are entered later in proceedings than pleas to other charges, provided the sentencing judge's assessment is supported by the material before the court.
  • Where an applicant seeks to explain a delay in entering guilty pleas, that explanation must be ventilated at first instance; the Court of Criminal Appeal cannot rely on reasoning that was not before the sentencing judge.
  • An erroneous finding of aggravation does not automatically warrant resentencing. The Court of Criminal Appeal will assess whether the error actually produced an excessive sentence, having regard to the overall sentencing range and other objective features of the offending.
  • Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, a formal finding of special circumstances is required where the balance of term exceeds one-third of the non-parole period, but on accumulated sentences the ratio is assessed by reference to the aggregate sentence rather than any individual count in isolation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed the approach in Hejazi v R: reducing the non-parole period on the last sentence in an accumulation, on the basis of special circumstances, is a permissible mechanism to achieve an appropriate overall relationship between custody and supervised parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61N(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 32, 44(2), Division 1A of Part IV
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Hejazi v R [2009] NSWCCA 282
- R v Borkowski [2009] NSWCCA 102
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Sullivan v R; Skillin v R [2008] NSWCCA 296