AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 18 February 2010

Shaw v R

[2010] NSWCCA 23

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE CRIMINAL LAW APPEAL

Citation: Shaw v R [2010] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 18 February 2010
Judge(s): McClellan CJ at CL, Hulme J, Johnson J

Background

The applicant pleaded guilty in the District Court to 13 offences, comprising two charges of using a child for pornographic purposes and 11 charges of sexual intercourse with a person aged between 10 and 16 years. The offences were committed between August 2001 and March 2002 and involved the sexual exploitation of a 14-year-old girl, with initial contact made over the internet. The applicant was 46 years old at the time.

Sentencing did not occur until October 2008, largely because the applicant had been in custody in Queensland for separate but related offending. In September 2004, Queensland courts had sentenced him to 7 years imprisonment (with a non-parole period of 2 years and 6 months) for a range of child sexual offences committed between 1998 and 2002. He was released to parole in Queensland on 17 April 2007, then extradited to New South Wales, where he remained in custody until the NSW sentence proceedings.

The District Court sentenced the applicant to a total non-parole period of 6 years and 9 months, with a further term of 2 years and 3 months. The applicant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by failing to consider, or adequately consider, whether a lesser sentence was warranted because the applicant had provided or undertaken to provide assistance to authorities (including in relation to the Queensland proceedings).
  • Whether the sentencing judge failed to account for a 12-day period of pre-sentence custody, resulting in an error in the commencement date of the sentences.

Decision

On the first ground, the Court noted that the sentencing judge had acknowledged in passing that the seemingly lenient Queensland non-parole period may have reflected assistance provided by the applicant. However, the judge's remarks contained no indication that he had actually turned his mind to whether a reduction in the NSW sentences was warranted under section 23 of the Crimes (Sentencing Procedure) Act 1999, which expressly empowers a court to reduce penalties having regard to assistance provided or offered by an offender.

The Court confirmed that assistance to authorities is a relevant consideration regardless of whether it was provided interstate, and that it may relate to offences committed by others, not only those for which the applicant is being sentenced. Because the sentencing judge had not adequately engaged with this question despite having material before him suggesting assistance had been offered, the Court found error.

On the second ground, the sentencing judge had intended to backdate the sentences to credit the applicant for time already served in custody, but proceeded on an incorrect assumption about the relevant date. The commencement date used was 2 December 2004, when the correct date, accounting for the additional 12 days, should have been 20 November 2004. The Court held that this amounted to a failure to give proper effect to a period of pre-sentence custody that the judge plainly intended to recognise, and that intervention was warranted.

The Court resentenced the applicant, adjusting the commencement date of the sentences to 20 November 2004 to properly reflect the full period of custody already served.

Orders Made

  • Leave to appeal granted and the appeal upheld.
  • Sentences imposed in the District Court quashed.
  • Resentenced as follows:
  • Count 1: Fixed term of 18 months, commencing 20 November 2004, expiring 19 May 2006.
  • Count 2: Fixed term of 3 years, commencing 20 November 2004, expiring 19 November 2007.
  • Counts 3, 4 and 5: Fixed term of 3 years, commencing 20 November 2006, expiring 19 November 2009.
  • Count 6: Fixed term of 18 months, commencing 20 November 2006, expiring 19 May 2008.
  • Counts 7 and 8: Non-parole period of 2 years and 3 months commencing 20 November 2008 (expiring 19 February 2011), with a parole period of 9 months expiring 18 November 2011.
  • Counts 9 to 13: Non-parole period of 9 months commencing 20 November 2010 (expiring 19 August 2011), with a parole period of 2 years and 3 months expiring 19 November 2013. Form 1 matters taken into account on count 9. Earliest parole eligibility: 19 August 2011.

Key Takeaways

  • Under section 23 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to actively consider whether assistance provided or offered by an offender justifies a reduction in penalty. A passing remark suggesting awareness of possible assistance does not satisfy this obligation.
  • Assistance provided to authorities interstate is not irrelevant to NSW sentencing proceedings, and the relevant assistance need not relate solely to the offences for which the offender is being sentenced.
  • Where a sentencing judge plainly intends to credit an offender for time served in pre-sentence custody but proceeds on an incorrect factual assumption about the relevant period, the Court of Criminal Appeal will intervene to correct the error.
  • In dismissing neither ground, the Court of Criminal Appeal resentenced rather than remitting the matter, adjusting the commencement date of all sentences by 12 days to reflect the correct pre-sentence custody period.
  • The principle in Mill v The Queen (1988) 166 CLR 59, requiring courts to consider the totality of sentences when an offender is dealt with separately for broadly contemporaneous offences (including across state boundaries), was engaged by the relationship between the Queensland and NSW sentences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 91G(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Many (1990) 51 A Crim R 54
- R v Quinn [2002] NSWCCA 508
- R v Huang (1995) 78 A Crim R 111
- R v De Groot van Embden [2003] NSWCCA 156; 140 A Crim R 403
- R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
- R v Allan John Quinn [2005] VSCA 100
- Kauwenberghs v R [2008] NSWCCA 98