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Court of Criminal Appeal 16 March 2010

ALLEN v R

[2010] NSWCCA 47

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE BRIEF PERIOD OF DETENTION SENTENCE MANIFESTLY EXCESSIVE

Citation: Allen v R [2010] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 16 March 2010
Judges: McClellan CJ at CL, Latham J, Schmidt J

Background

The appellant pleaded guilty in the Local Court to two offences: sexual intercourse with a child under 10 (contrary to s 66A of the Crimes Act 1900, maximum 25 years) and kidnapping (contrary to s 86(1)(b) of the Crimes Act 1900, maximum 14 years). The offences arose from a single incident at a caravan park in Port Macquarie in September 2008, where the appellant lured a five-year-old boy away from his family with an offer of money, took him to nearby bushland, and sexually assaulted him before returning him to the park.

The appellant had a significant prior history, including a 1996 conviction for sexual intercourse with two male children under 10 in broadly similar circumstances, and a 1999 conviction for loitering near a public place as a registered child sex offender. Presentence reports described his response to supervision as poor, his compliance with programs as limited, and his risk of reoffending as high.

At first instance, Garling DCJ sentenced the appellant to a total of 16 years imprisonment with an aggregate non-parole period of 12 years. The kidnapping sentence alone carried a non-parole period of 6 years. The appellant sought leave to appeal on the grounds that the kidnapping sentence was manifestly excessive and that the degree of accumulation of the two sentences was itself excessive.

  • Whether the sentence imposed for the kidnapping offence was manifestly excessive, having regard to the brief duration of the child's detention and other relevant objective factors.
  • Whether the degree to which the two sentences were accumulated (rendered partially concurrent) was excessive or otherwise erroneous.

Decision

On the kidnapping sentence: The Court of Criminal Appeal accepted that the kidnapping sentence of 6 years non-parole was manifestly excessive. The sentencing judge had not given sufficient weight to the brevity of the detention, which lasted only a short time. While the kidnapping was unquestionably serious, and was carried out as part of a plan to sexually assault the child, a more proportionate sentence before discount would have been 8 years imprisonment. Applying the 25% guilty plea discount, the Court re-sentenced the appellant on the kidnapping charge to a non-parole period of 4 years, commencing 15 September 2008, with a balance of term of 2 years.

On the accumulation ground: The Court dismissed this ground of appeal. It acknowledged that the degree of accumulation was a matter within the sentencing judge's discretion and that some accumulation was necessary to reflect the totality of the appellant's criminality. The appellant's counsel conceded there was no patent error in the exercise of that discretion, and the Court found none. The aggregate sentence of 16 years with a 12-year non-parole period, though described as heavy, was not manifestly excessive in light of the appellant's lack of insight, his poor response to prior supervision, and the significant weight properly given to community protection and personal deterrence.

The Court emphasised that although the detention and the sexual assault were interconnected, they remained two discrete offences requiring separate and appropriately accumulated sentences. The overall result, following re-sentencing on the kidnapping count, reflected that balance.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part: the kidnapping sentence imposed on 11 February 2009 was quashed.
  • In lieu, a non-parole period of 4 years imposed for the kidnapping offence, commencing 15 September 2008 and expiring 14 September 2012, with a balance of term of 2 years expiring 14 September 2014.

Key Takeaways

  • The duration of a detention is a relevant factor in assessing the objective gravity of a kidnapping offence, and a brief period of detention may render a sentence excessive even where the kidnapping was committed for a serious criminal purpose.
  • A conviction for kidnapping committed in connection with a sexual assault on a child does not automatically displace consideration of how long the child was actually detained when fixing the appropriate sentence for the kidnapping component.
  • In dismissing the accumulation ground, the Court of Criminal Appeal confirmed that a sentencing judge retains a broad discretion in determining the extent to which sentences for discrete offences should be accumulated, and appellate intervention requires a patent error or manifest excessiveness, neither of which was established here.
  • Factors including high risk of reoffending, poor response to past supervision, and the need for community protection and personal deterrence were properly treated as significant in setting the overall sentence, even where one component of that sentence required reduction.
  • The Court found that an aggregate non-parole period of 12 years across both offences was not manifestly excessive, notwithstanding the reduction to the kidnapping component, given the seriousness of the totality of the appellant's conduct and his criminal history.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10), s 86(1)(b) (kidnapping)

Cases:
- R v Collett & Robson (NSWCCA, unreported, 7 June 1979)
- R v Newell [2004] NSWCCA 183
- R v Falls [2004] NSWCCA 335