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14
Court of Criminal Appeal 2 September 2010

Bonwick v R

[2010] NSWCCA 177

Sexual offences
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY FIRST SUCH OFFENCES NO REGARD PAID TO THAT PRINCIPLE WHETHER STANDARD NON

Citation: Bonwick v R [2010] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 2 September 2010
Judge(s): McClellan CJ at CL, James J, Davies J

Background

The appellant pleaded guilty in the District Court to four counts of indecent assault of a child under 16 years (the victim was seven years old). The offences arose from two separate incidents: one in late 2008 and three on a single day in March 2009. The appellant had no prior convictions for offences of this kind and was assessed as functioning in the borderline to mildly intellectually impaired range.

On 14 December 2009, the sentencing judge imposed an effective sentence comprising a two-year non-parole period and a one-year additional term. The individual counts received non-parole periods ranging from 10 to 18 months, served partly concurrently and partly cumulatively.

The appellant sought leave to appeal on the grounds that the sentences were manifestly excessive, that non-custodial options had not been appropriately considered, and that the sentencing judge had failed to take into account that the charges were within the jurisdictional limit of the Local Court.

  • Whether the sentencing judge erred by failing to consider that the offences could have been dealt with in the Local Court, where the maximum penalty is capped at two years imprisonment per offence.
  • Whether the existence of a standard non-parole period (of eight years for offences in the mid-range of seriousness, assessed after trial) displaced the obligation to consider Local Court jurisdiction as a relevant sentencing factor.
  • Whether the sentencing judge failed to consider each offence separately and assess each on its own merits before turning to questions of accumulation and totality.
  • Whether the sentences imposed were manifestly excessive having regard to all relevant factors, including the appellant's intellectual functioning, his guilty plea, and the relatively low objective seriousness of several of the counts.

Decision

The Court of Criminal Appeal found that the sentencing judge had committed two significant errors. First, her Honour failed to consider that the offences could have been dealt with summarily in the Local Court, where the maximum penalty is limited. This principle remained relevant to the assessment of the appropriate sentence in the District Court, and its omission was a legal error.

The Court rejected any suggestion that the existence of a standard non-parole period for the offences somehow displaced the obligation to consider Local Court jurisdiction. The standard non-parole period is a reference point for mid-range offending assessed after a contested trial; it does not override other well-established sentencing principles.

The second error was the sentencing judge's failure to consider each count individually before addressing questions of accumulation. The Court found that, in treating the counts as a group rather than assessing each separately, the sentencing judge started from an inflated baseline, and this error flowed through to every subsequent count.

Taking into account the appellant's intellectual limitations, his guilty plea, his lack of prior like offending, and the correct starting point for assessing each offence, the Court held the sentences were manifestly excessive and proceeded to re-sentence the appellant. The re-sentencing resulted in significantly reduced penalties, including a good behaviour bond for Count 2 and a maximum non-parole period of 12 months for the most serious remaining count.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed.
  • Re-sentenced as follows:
  • Count 2: Good behaviour bond for 12 months, commencing 3 November 2009.
  • Count 3: Fixed term of imprisonment of 3 months, commencing 3 November 2009 and expiring 2 February 2010.
  • Count 4: Non-parole period of 9 months (commencing 3 November 2009, expiring 2 August 2010), with an additional term of 9 months (commencing 3 August 2010, expiring 2 May 2011).
  • Count 5: Non-parole period of 12 months (commencing 3 November 2009, expiring 2 November 2010), with an additional term of 12 months (commencing 3 November 2010, expiring 2 November 2011).

Key Takeaways

  • Where offences fall within the jurisdictional limit of the Local Court, the sentencing court in the District Court must give genuine consideration to that fact as a relevant sentencing factor, and failure to do so is a legal error.
  • The presence of a standard non-parole period does not displace the obligation to consider Local Court jurisdiction; the standard non-parole period operates as a guidepost for mid-range offences after a trial, and does not override other established principles.
  • Each count in a multi-count indictment must be considered individually on its merits before questions of accumulation or totality are addressed; assessing counts collectively risks producing an inflated starting point that infects the entire sentence.
  • Intellectual impairment assessed in the borderline to mild range, a guilty plea, and a lack of prior like offending are all factors capable of supporting significant departure from a standard non-parole period.
  • In re-sentencing, the Court of Criminal Appeal found special circumstances justifying an extended additional term for Counts 4 and 5, having regard to the reports of the Probation and Parole Service and a psychiatric expert concerning the appellant's rehabilitation needs.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Ciaron McCullough v R [2009] NSWCCA 94
- Collins, Marcus Shane v R [2010] NSWCCA 13
- Corby v R [2010] NSWCCA 146
- Frigiani v R [2007] NSWCCA 81
- HMP v R [2010] NSWCCA 63
- MLP v Regina [2006] NSWCCA 271
- Pearce v The Queen (1998) 194 CLR 610
- R v Crombie [1999] NSWCCA 297
- R v Hanslow [2004] NSWCCA 163
- R v Way (2004) 60 NSWLR 168
- Regina v AJP (2004) 150 A Crim R 575
- Regina v Palmer [2005] NSWCCA 349
- Regina v Said El Masri [2005] NSWCCA 167
- Walton v R [2009] NSWCCA 243