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Court of Criminal Appeal 13 May 2010

R v SJH

[2010] NSWCCA 32

Sexual offences
CRIMINAL LAW SENTENCE CROWN APPEAL TOTALITY PRINCIPLE WHETHER ERROR IN CONCURRENT SENTENCES

Citation: R v SJH [2010] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 13 May 2010
Judges: Grove J, Simpson J, RA Hulme J

Background

The respondent was convicted of eight child sexual assault offences committed against his daughter over a period of six years, from 1993 to 1999. The offences began when the victim was seven years old and continued until she was thirteen, with a two-year interruption after the victim's mother witnessed one incident. A further nine similar offences were taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered at sentencing without separate conviction).

In the District Court at Penrith, Judge English sentenced the respondent to a total of nine years' imprisonment with a five-year non-parole period. The sentences for all eight counts were ordered to run concurrently, meaning they were served at the same time rather than one after the other.

The Crown appealed, arguing that the concurrent structure of the sentences produced an aggregate term that was manifestly inadequate given the nature, number, and duration of the offending.

  • Whether the sentencing judge erred by ordering all sentences to run concurrently, producing an aggregate that failed to reflect the full criminality of the offending
  • Whether the totality principle (which requires a court to ensure an aggregate sentence is just and appropriate for the overall offending) was correctly applied
  • Whether the "principle of rarity" applying to Crown appeals remained a basis for the Court to decline to intervene even after error was established

Decision

The Court of Criminal Appeal allowed the appeal, finding that the concurrent structure adopted by the sentencing judge resulted in an aggregate sentence that was manifestly inadequate. The principle established in Pearce v The Queen requires that separate sentences be imposed for separate offences, and that cumulation (sentences running consecutively, or back-to-back) is ordinarily required where offences are discrete and distinct. The offending here spanned six years and involved multiple separate occasions, making it inappropriate for all sentences to be served entirely concurrently.

The Court applied the totality principle to restructure the sentences. That principle requires that while cumulative sentences may be warranted, the overall total must not be crushing or disproportionate to the offender's total criminality. The Court staggered the commencement dates of the individual sentences across several years to achieve greater cumulation, resulting in an aggregate term of 12 years with a non-parole period of 8 years.

On the question of whether the "principle of rarity" gave the Court a residual discretion to decline to intervene even after finding error, the respondent ultimately conceded the point. Following the Court's decision in R v JW [2010] NSWCCA 49, the abolition of the double jeopardy principle in Crown appeals (through the insertion of s 68A in the Crimes (Appeal and Review) Act 2001) meant that references to "rarity" as a basis for declining to intervene in individual sentencing decisions were no longer applicable.

Orders Made

  • Appeal allowed
  • Count 2: Fixed term of 3 years 9 months from 10 June 2009 (confirmed)
  • Count 3: Fixed term of 4 years 6 months from 10 June 2009 (confirmed)
  • Count 4: Fixed term of 3 years 9 months from 10 June 2010
  • Counts 5 and 6: Fixed term of 3 years each from 10 June 2010
  • Counts 7 and 8: Fixed term of 4 years 6 months each from 10 June 2011
  • Count 1 (including Form 1 offences): 9 years with a 5-year non-parole period, commencing 10 June 2012; eligible for parole 9 June 2017; sentence expires 9 June 2021
  • Aggregate result: 12 years with a non-parole period of 8 years

Key Takeaways

  • Where offences are discrete and distinct, Pearce v The Queen requires separate sentences, and full concurrency across all counts will ordinarily be inadequate to reflect the totality of the offending.
  • The totality principle operates to moderate cumulation, ensuring the aggregate is just, but it does not justify running all sentences concurrently where serious offending occurred on multiple separate occasions over many years.
  • Staggering commencement dates is a recognised sentencing technique for achieving appropriate partial cumulation while complying with the totality principle.
  • Following the insertion of s 68A in the Crimes (Appeal and Review) Act 2001, the "principle of rarity" no longer operates as a basis for a court to refuse to intervene in a Crown appeal once sentencing error has been established.
  • In restructuring the sentences, the Court of Criminal Appeal confirmed the individual sentence lengths imposed by the District Court but adjusted their commencement dates to produce a substantially higher aggregate term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61O(1), 66A, 66C(2), 66D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v JW [2010] NSWCCA 49
- R v Carroll [2010] NSWCCA 55
- Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- Mottram v R [2009] NSWCCA 210
- R v Mulato [2006] NSWCCA 282