AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 18 December 2009

GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

[2009] NSWCCA 308

Also reported as (2009) 198 A Crim R 395
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED ACT OF INDECENCY DISCOUNT FOR EARLY PLEA OF GUILTY FINDING OF SPECIAL CIRCUMSTANCES PROPER APPROACH TO SENTENCING

Citation: Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judges: Basten JA; RS Hulme J; Johnson J

Background

The applicant pleaded guilty in the Local Court on 18 December 2007 to seven counts of sexual intercourse with his step-daughter under s 66C(2) of the Crimes Act 1900 (NSW), and one count of aggravated act of indecency under s 61O. The offences occurred between July 1995 and April 1999, when the victim was aged between 11 and 15 years. Each count was representative of a broader, ongoing course of conduct.

On 11 April 2008, Judge Finnane of the District Court sentenced the applicant to a total of 11 years mandatory imprisonment with a five-year balance of term. The sentences incorporated a 25 per cent discount for the early guilty pleas and cooperation with police, and a finding of special circumstances based on the applicant's first time in custody and prospects of rehabilitation.

The applicant sought leave to appeal, contending that the sentencing judge had adopted an erroneous approach, that individual sentences exceeded available maximum penalties in their notional starting points, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by adopting notional starting points that exceeded the maximum penalties available for individual offences.
  • Whether the objective seriousness of specific charged offences can be elevated by reference to the surrounding course of conduct of which those offences form part.
  • Whether the sentences, individually and in totality, were manifestly excessive.
  • What the appropriate re-sentences should be.

Decision

Erroneous approach to notional starting points: The Court unanimously held that the sentencing judge's approach was erroneous, producing notional starting points that exceeded the statutory maximum penalties for the individual offences. The Court further found that even if the notional starting points had not exceeded those maxima, the objective circumstances did not justify starting points at or near the maximum.

Course of conduct and objective seriousness (divided Court): Basten JA (with Johnson J agreeing in result, but not in reasoning) held that where surrounding circumstances constituting a course of conduct are identified and the subject of an appropriate admission or proof, they may be treated as relevant to the objective seriousness of the charged offences. On that basis, the fact that the charged offences formed part of an ongoing course of abuse placed them in the higher range of objective seriousness. RS Hulme J dissented, holding that uncharged conduct similar to that encompassed by the charges cannot be used to impose a sentence higher than the charged conduct alone would warrant.

Johnson J's caution: Johnson J declined to join Basten JA's analysis on representative counts and course of conduct, concluding that the issue should await determination in a case where both parties have had full notice and the opportunity to address the relevant Victorian authority. He agreed with the orders proposed by Basten JA on the basis that the individual sentences and their total effect were appropriate for the offences and the offender as charged.

Re-sentencing: Basten JA, with Johnson J agreeing, determined that the appropriate total period of mandatory imprisonment was nine years and six months, with a two-year balance on the final sentence, giving an aggregate of 11 years and six months. This represented a reduction of 18 months from the original sentence and removed any basis for a finding of manifest excess.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentences imposed in the Sydney District Court on 11 April 2008 quashed.
  • Applicant re-sentenced across eight counts with fixed terms of imprisonment running cumulatively, ranging from 1.5 years to 6 years.
  • The final count (Count 6) carries a full term of 6 years with a non-parole period of 4 years, both commencing 4 February 2013.
  • The applicant will be eligible for parole on 3 February 2017.

Key Takeaways

  • Where a sentencing judge's notional starting points exceed the statutory maximum penalty for an offence, the approach is erroneous and will warrant appellate intervention regardless of whether the final sentence fell within permissible bounds.
  • Basten JA's majority analysis confirms that surrounding circumstances, including an ongoing course of conduct, can be relevant to the objective seriousness of specific charged offences, provided those circumstances are the subject of an appropriate admission or proof.
  • RS Hulme J's dissent represents a competing view: uncharged conduct should not be used to increase a sentence beyond what the charged conduct alone would justify, a position consistent with earlier NSW Court of Criminal Appeal authority.
  • Johnson J's judgment signals that the Court of Criminal Appeal regarded the "representative counts and course of conduct" question as unsettled in NSW, and indicated it should be resolved in a case with full submissions from parties on notice of the issue.
  • A finding of special circumstances, and discounts for early guilty pleas and police cooperation, remain relevant mitigating considerations in serious sexual offence sentencing, but do not cure a foundational error in the assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O, 66C, 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 44, 45, 48
- Sentencing Act 1989 (NSW), s 6

Cases:
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
- Smith v R [2007] NSWCCA 138
- Fisher v R [2008] NSWCCA 129
- Hejazi v The Queen [2009] NSWCCA 282
- R v AEM [2002] NSWCCA 58
- R v Knight (2005) 155 A Crim R 252
- R v Holyoak (1995) 82 A Crim R 502
- R v MH [2001] NSWCCA 117
- Thomas (1992) 65 A Crim R 269
- Director of Public Prosecutions v CPD [2009] VSCA 114
- R v LFJ [2009] VSCA 134
- The Queen v CJK [2009] VSCA 58
- Anderson v DPP [1978] AC 964
- Murrell v R (1985) 4 FCR 168
- R v D (1997) 69 SASR 413