Citation: Regina v PFC [2011] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 25 May 2011
Judge(s): Allsop P, Hoeben J, Hall J
Background
The respondent was convicted after trial in the Sydney District Court on 23 counts spanning an 18-month period from August 1997 to February 2009. The offences involved 17 counts of various sexual assaults against six juvenile complainants, together with six counts of acting with intent to pervert the course of justice under section 319 of the Crimes Act 1900. The respondent had operated a computer business in the Manning River area and was found to have groomed vulnerable young men, many from dysfunctional family backgrounds, using gifts, trips, cash, and exposure to pornography.
The perverting-justice offences involved the respondent procuring statements from victims attesting to his good character and lack of sexual intent, which were used or intended to be used in separate criminal proceedings. Some counts related to a false private prosecution launched by the respondent against the father of another young person he knew.
On 21 December 2009, Norrish DCJ sentenced the respondent to a total effective sentence comprising a non-parole period of 10 years and 9 months, with a balance of term of 3 years and 8 months. The Director of Public Prosecutions appealed, arguing the degree of accumulation was insufficient and that the overall sentence failed to reflect the totality of the respondent's criminality.
Legal Issues
- Whether the sentencing judge failed to order a sufficient degree of partial accumulation among the individual sentences, producing an overall sentence that was manifestly inadequate
- Whether the sentencing judge erred in treating the fact that the perverting-justice offences ultimately caused no miscarriage of justice as relevant to the objective seriousness of those offences
- Whether the total term and non-parole period imposed were manifestly inadequate
Decision
The Court of Criminal Appeal dismissed all three grounds of the Crown's appeal, with all three judges agreeing in the reasons delivered by Hoeben J.
On the accumulation and totality grounds (Grounds 1 and 3), the Court held that the sentencing judge had a wide discretion in determining the degree of accumulation. Applying the principles in Pearce v The Queen (1998) 194 CLR 610, the Court confirmed that while separate offences must be sentenced distinctly, the overall sentence must also reflect the totality of criminality, with appropriate concurrency or accumulation applied. The Court found that the sentencing judge had engaged in that exercise correctly, and that the resulting total sentence was within the available range. The Crown had not challenged any individual sentence, and the Court declined to interfere with the exercise of the sentencing discretion.
On the second ground, the Court accepted that the sentencing judge did err in taking into account the fact that the perverting-justice offences had not resulted in any actual miscarriage of justice when assessing their objective seriousness. Drawing on R v Taylor [2007] NSWCCA 99, the Court confirmed that the failure of an act intended to pervert the course of justice is of little significance to its objective gravity, unlike in the case of an attempt to commit a substantive offence. However, because the individual sentences for those offences remained within the available sentencing range and were not themselves challenged, the error did not cause the overall sentencing exercise to miscarry.
Orders Made
- The Crown's appeal against sentence was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that principles of totality and proportionality apply equally to perverting-justice offences as to all other offences: the sentencing court must ensure the overall sentence reflects combined criminality through appropriate concurrency or accumulation.
- An error in assessing objective seriousness does not automatically warrant appellate intervention: where individual sentences remain within range and are not challenged, the error may be insufficient to disturb the overall sentencing result.
- Under section 319 of the Crimes Act 1900, the fact that an act intended to pervert the course of justice did not succeed, or was even doomed to fail, is of far less significance than in cases involving attempts at substantive crimes. The potential seriousness of the consequences carries much greater weight.
- A Crown appeal against the degree of accumulation of sentences faces a high bar. In dismissing the appeal, the Court emphasised the breadth of the sentencing judge's discretion and the absence of any challenge to the individual sentences.
- No error was established sufficient to justify re-sentencing, even where the total effective sentence for 23 serious offences spanning over a decade resulted in a non-parole period shorter than the maximum penalty for some individual counts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C, 66D, 91G, 319
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Taylor [2007] NSWCCA 99
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Hamid [2006] NSWCCA 302
- R v Holder (1983) 3 NSWLR 245
- R v Wicks [2005] NSWCCA 409
- Qing An v Regina [2007] NSWCCA 53