Citation: Stephens v R [2010] NSWCCA 93
Court: New South Wales Court of Criminal Appeal
Date: 5 May 2010
Judge(s): Latham J, Fullerton J, Schmidt J
Background
The applicant pleaded guilty in the District Court to four offences arising from a sustained violent sexual attack on a young woman in the early hours of 14 January 2007. The offences included aggravated kidnapping, three counts of aggravated sexual assault (penile/anal penetration, digital/anal penetration, and fellatio, each involving the infliction of actual bodily harm), and a summary offence of driving whilst disqualified. A number of additional sexual offences were taken into account on a Form 1.
The offending began when the applicant concealed himself in the boot of the complainant's vehicle at the conclusion of a private function. He emerged while she was driving alone, restrained her, and subjected her to a prolonged ordeal over several hours before she managed to escape.
The District Court imposed a 25 per cent discount for the guilty pleas and partially accumulated the sentences, producing an effective term of 20 years imprisonment with a non-parole period of 14 years. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the objective seriousness of the aggravated kidnapping (count 1) was correctly assessed as within the mid-range, consistent with the principles in R v Way
- Whether the sentence for the aggravated kidnapping was manifestly excessive
- Whether the three counts of aggravated sexual assault were properly characterised as offences of the worst type
- Whether the sentencing judge's approach to calculating the sentence was inconsistent with the "instinctive synthesis" methodology required by Markarian v R, by failing to give sufficient weight to the applicant's subjective circumstances
- Whether the aggregate sentence was manifestly excessive by reason of a breach of the totality principle
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The sentences on counts 1 and 2 were confirmed. The Court accepted that the sentence of 14 years for the penile/anal assault (count 2), which took into account three additional sexual offences on the Form 1, was entirely appropriate and no lesser sentence was warranted despite a noted error affecting that count.
The Court found that the sentences on counts 3 and 4 required adjustment to properly reflect the relative seriousness of those offences compared with count 2, and to address the absence of further Form 1 offences on count 4. The sentencing judge's error lay in the insufficient differentiation between the sentences for counts 2, 3, and 4, which undermined the internal coherence of the sentence structure.
Fullerton J (with whom Latham J and Schmidt J agreed) reduced the sentence on count 3 to 11 years and on count 4 to 8 years. Partial accumulation was maintained across all four counts, and special circumstances were found, warranting a longer parole period than the statutory default. The resulting aggregate sentence was 18 years imprisonment with a non-parole period of 12 years, down from 20 years and 14 years respectively.
The Court emphasised that, although the offending was described as out of character and inconsistent with the applicant's background as revealed by psychological and psychiatric evidence, the sustained and serious nature of the criminality over several hours called for an effective sentence reflecting its totality.
Orders Made
- Leave to appeal granted
- Appeal allowed in part
- Sentences on counts 1 and 2 confirmed
- Sentence on count 3 quashed; replaced with a non-parole period of 5 years from 14 January 2014 (expiring 13 January 2019), with a balance of term expiring 13 January 2025
- Sentence on count 4 quashed; replaced with a non-parole period of 4 years from 14 January 2015 (expiring 13 January 2019), with a balance of term expiring 13 January 2023
- Applicant eligible for release to parole on 14 January 2019
Key Takeaways
- The Court of Criminal Appeal confirmed that sentencing for multiple serious sexual offences against the same victim in a single course of conduct requires careful attention to the internal relativities between individual sentences, not merely the aggregate outcome.
- Where multiple counts involve comparable but distinguishable conduct, and where Form 1 offences differ between counts, the sentences for each count must reflect those differences proportionately.
- Applying Markarian v R, the sentencing process requires an instinctive synthesis that properly weighs subjective circumstances, including evidence of good character and out-of-character offending, even where the objective gravity of the offending is very high.
- The totality principle operates to ensure that the aggregate of a partially accumulated sentence remains proportionate to the overall criminality, and a finding of special circumstances can expand the parole period beyond the statutory default to aid rehabilitation.
- In dismissing most grounds of the appeal, the Court affirmed that a 14-year head sentence for forced penile/anal intercourse accompanied by serious Form 1 offences falls within the appropriate range and does not of itself constitute manifest excess.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 86(2)(b), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Cases
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Markarian v R [2005] HCA 25; 228 CLR 357
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- R v Bilal Skaf [2005] NSWCCA 297
- R v Gilham [2009] NSWSC 138
- Boney v R [2008] NSWCCA 165
- R v Anderson [2002] NSWCCA 304
- Musgrove v R [2007] NSWCCA 21
- CM v R [2008] NSWCCA 195
- R v Reyes [2005] NSWCCA 218
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
- Leslie v R [2009] NSWCCA 203