Citation: Russell v R [2010] NSWCCA 248
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2010
Judge(s): Campbell JA, Latham J, Price J
Background
The applicant, an Aboriginal man in his mid-forties, was convicted by a jury in the District Court of two counts of indecent assault and two counts of sexual intercourse without consent. The offences occurred on a single day in April 2008 and involved a 19-year-old complainant who lived near the applicant. The trial judge, Woods QC DCJ, found the offending was opportunistic rather than premeditated.
At sentencing in July 2009, the applicant received a total overall sentence of 9 years and 6 months, with a non-parole period of 7 years and 6 months, achieved through partial accumulation and concurrence of the individual sentences. One notable feature was that the sentence for count 2 was imposed as a fixed term with no non-parole period or balance of term identified separately.
The applicant sought leave to appeal the severity of the sentences on multiple grounds, arguing various sentencing errors by the District Court.
Legal Issues
- Whether the commencement date of the sentence was correct
- Whether the sentencing judge erred in taking into account a breach of parole
- Whether the principle of totality was properly applied
- Whether the Fernando principles (relating to Aboriginal background as a mitigating factor) were adequately taken into account
- Whether the applicant was sentenced on the basis of preventative detention, contrary to principle
- Whether the sentences were manifestly excessive
Decision
The Court of Criminal Appeal identified one error in the sentencing structure: the sentence imposed on count 2 had been expressed as a fixed term of 7 years without a separately identified non-parole period and balance of term. Under the Crimes (Sentencing Procedure) Act 1999, a sentence of that length required a non-parole period to be set. The Court quashed the count 2 sentence and re-sentenced to a non-parole period of 7 years with a balance of term of 2 years, preserving the same commencement and expiry dates.
On all remaining grounds, the Court rejected the applicant's arguments. The sentencing judge had properly addressed the Fernando principles, which require courts to consider the particular circumstances of Aboriginal offenders, including background, environment, and the relevance of those factors to the offending. No error was found in the judge's treatment of those matters or in the assessment of totality.
The Court also rejected the arguments that the sentencing judge took an impermissible approach to preventative detention or erred in referencing a breach of parole. The applicant had been released on parole before re-offending, and the Court found it was legitimate for the sentencing judge to note that context.
On manifest excess, the Court reviewed the Judicial Commission sentencing statistics for section 61I Crimes Act 1900 offences, noting the need for caution given the wide range of conduct captured by the definition of "sexual intercourse." The Court was satisfied that while the sentence for count 2 was a stern one, it remained within the legitimately available range. The overall sentence was similarly not manifestly excessive.
Orders Made
- Leave to extend time to appeal granted
- Leave to appeal against sentence granted
- Appeal against sentence allowed in part: sentence on count 2 quashed and replaced with a non-parole period of 7 years commencing 4 April 2009 (expiring 3 April 2016) and a balance of term of 2 years commencing 4 April 2016 (expiring 3 April 2018)
- All other sentences confirmed
- Earliest eligible parole date: 3 October 2016
Key Takeaways
- A sentence of 7 years or more under the Crimes (Sentencing Procedure) Act 1999 must be structured with a separately identified non-parole period and balance of term; imposing it as a bare fixed term constitutes a legal error requiring correction on appeal.
- The Court of Criminal Appeal confirmed that the Fernando principles require a sentencing court to genuinely engage with an Aboriginal offender's background and circumstances, but that compliance with those principles does not automatically result in a lesser sentence.
- Sentencing statistics for section 61I Crimes Act offences warrant particular caution because the statutory definition of "sexual intercourse" encompasses a broad range of conduct, requiring close attention to the specific facts of each case.
- No error was established in the sentencing judge's reference to the applicant's breach of parole, as that background formed a legitimate part of the sentencing context.
- In dismissing the manifest excess ground, the Court applied the principle that a stern sentence within the available range does not warrant appellate intervention, even where statistics suggest it falls at the upper end.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J, 61J(2)(b), 61J(2)(g), 61L
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 45(1)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- Veen v R (No 2) (1988) 164 CLR 465
- House v The King (1936) 55 CLR 499
- Postiglione v The Queen (1997) 189 CLR 295
- R v De Simoni (1981) 147 CLR 499
- R v Hibberd [2009] 194 A Crim R 1
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- Amacha v R [2010] NSWCCA 180
- Gillon v R [2009] NSWCCA 277
- Hejazi v R [2009] NSWCCA 282
- Mulato v R [2006] NSWCCA 282
- Musgrove v R (2007) 167 A Crim R 424
- R v AJP (2004) 150 A Crim R 575
- R v Cheh [2009] NSWCCA 134
- R v Daley [2010] NSWCCA 223
- R v Dunn [2007] NSWCCA 312
- R v El-Hayek (2004) 144 A Crim R 90
- R v Johnson [2004] NSWCCA 140
- R v King [2009] NSWCCA 117
- R v McNaughton [2006] NSWCCA 242
- SGJ v R; Ku v R [2008] NSWCCA 258
- Wakefield v R [2010] NSWCCA 12