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Court of Criminal Appeal 19 August 2010

Amacha v R, R v Amacha

[2010] NSWCCA 180

Sexual offences
CRIMINAL LAW APPLICATION FOR LEAVE TO APPEAL TWO SEPARATE BODIES OF CONDUCT SENTENCES NOT MANIFESTLY EXCESSIVE CRIMINAL LAW CROWN APPEAL

Citation: Amacha v R, R v Amacha [2010] NSWCCA 180
Court: New South Wales Court of Criminal Appeal
Date: 19 August 2010
Judges: Allsop P, Grove J, Hislop J

Background

The offender was convicted by jury on four counts of sexual assault and related offences committed against a complainant at her Paddington flat on 29 September 2007. He also pleaded guilty to two further counts of sexual intercourse without consent arising from a separate incident at Miranda on 5 May 2007. The two sets of offences were sentenced together in the District Court on 1 May 2009.

The District Court imposed sentences for the Paddington offences and then structured the Miranda sentences to commence at staggered intervals after the expiry of the Paddington sentences. Several of the sentences imposed were fixed terms, meaning no non-parole period was set as a distinct component.

Both the offender and the Crown appealed. The offender sought leave to appeal on the basis that the total sentence was unduly harsh and that specific errors had been made. The Crown contended that the sentencing judge had failed to assess the objective seriousness of each offence individually, had failed to accumulate the sentences adequately, and had not applied the principles from Pearce v The Queen in treating each offence's separate criminality.

  • Whether the totality of the sentences imposed on the offender was manifestly excessive
  • Whether individual sentences, particularly for count 7 and the Miranda offences, were unduly harsh
  • Whether the sentencing judge erred by imposing fixed terms for offences that required a non-parole period and a head sentence as separate components
  • Whether the sentencing judge failed to assess the objective seriousness of each offence individually
  • Whether the sentencing judge failed to apply the principles in Pearce v The Queen by not having regard to the separate criminality of each offence when accumulating sentences
  • Whether special circumstances existed that warranted adjustment of non-parole periods given the significant accumulation of sentences

Decision

The Court of Criminal Appeal dismissed the offender's appeal, finding the sentences were not manifestly excessive in their totality. The individual sentences for count 7 and the Miranda offences were also found to be within range. The Court rejected the offender's other specific grounds, including the contention that intoxication should have operated as a mitigating factor.

The Crown appeal was allowed in part. The Court found that the sentencing judge had fallen into error by failing to assess each offence's criminality separately before considering how to structure the accumulation of sentences. This was a failure to apply the Pearce v The Queen principles, which require a sentencing court to fix an appropriate sentence for each offence before addressing questions of totality and accumulation. The judge had also erred by imposing fixed terms for offences that required distinct non-parole periods and head sentences under the Crimes (Sentencing Procedure) Act 1999.

The Court re-sentenced the offender. In doing so, it found special circumstances warranted by the considerable accumulation of sentences and the need to preserve the offender's rehabilitation prospects. Crucially, the Court was careful not to increase the effective non-parole period beyond what was appropriate as an overall sentencing response, noting that a longer period of incarceration solely to correct structural form would serve no useful sentencing objective and risked provoking a sense of grievance that could undermine rehabilitation.

The restructured sentences maintained effective head sentences broadly consistent with the original approach but corrected the fixed-term error by imposing proper non-parole periods and head sentences for each count, with adjusted commencement dates and parole eligibility dates.

Orders Made

  • Leave granted to the offender to appeal against sentence
  • The offender's appeal dismissed
  • Crown appeal allowed in part
  • Sentences imposed by the District Court on 1 May 2009 set aside and replaced with the following:
  • Count 2 (trial): six years from 29 September 2007, non-parole period of four years six months
  • Count 4 (trial): six years six months from 29 September 2007, non-parole period of four years ten months
  • Count 5 (trial): six years from 29 December 2007, non-parole period of four years six months
  • Count 7 (trial): nine years from 29 March 2008, non-parole period of six years eight months
  • Count 1 (guilty plea, Miranda): four years six months from 28 August 2011, non-parole period of three years four months
  • Count 2 (guilty plea, Miranda): four years six months from 28 September 2011, non-parole period of three years four months

Key Takeaways

  • Under Pearce v The Queen, a sentencing court must fix an appropriate sentence for each individual offence by reference to its own objective seriousness before moving to questions of accumulation and totality. A failure to take that step is a sentencing error.
  • Imposing fixed terms for offences that attract standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 constitutes a structural sentencing error requiring correction on appeal.
  • In dismissing the offender's appeal, the Court of Criminal Appeal confirmed that the original sentences were not manifestly excessive in their overall effect, even while finding error in their structure.
  • Special circumstances can be established where significant accumulation of sentences results in an aggregate non-parole period that is disproportionate to the total head sentence, particularly where rehabilitation prospects are at stake.
  • Where re-sentencing is required to correct structural error, the Court of Criminal Appeal will take care not to increase the effective non-parole period beyond what the original sentencing judge intended as an appropriate overall response.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61I, 61K, 61L
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 44(2), 54A, 54B and Pt 4 Div 1A

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v JW [2010] NSWCCA 49
- R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
- R v Shankley [2003] NSWCCA 253
- R v Walker [2005] NSWCCA 109
- SGJ v R; Ku v R [2008] NSWCCA 258
- Simpson (1992) 61 A Crim R 58
- Smith v R [2009] NSWCCA 17