AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 6 July 2011

IS v R

[2011] NSWCCA 142

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL ASSAULT INDECENT ASSAULT OFFENDER FATHER OF VICTIM. SENTENCING PAROLE PERIOD BEYOND STATUTORY RATIO.

Citation: IS v R [2011] NSWCCA 142
Court: Court of Criminal Appeal, NSW
Date: 6 July 2011
Judge(s): Hodgson JA, Adams J, Hall J

Background

The appellant was the father of the victim and was convicted following trial and guilty plea of multiple child sexual offences committed against his daughter over a period spanning 1997 to 2004. The offences included sexual intercourse with a child under 10, aggravated indecent assault, persistent sexual abuse of a child, and acts of indecency. The victim was aged between approximately 8 and 15 years at the time of the various offences.

At sentencing in the District Court, the judge imposed partially accumulated sentences producing a total effective sentence of approximately 11 years and 9 months, with an effective non-parole period of approximately 9 years and 3 months. The sentencing judge found special circumstances warranting a departure from the standard statutory ratio in some respects, but did not find special circumstances for certain individual counts.

The appellant sought leave to appeal solely on the ground that the mechanical accumulation of the individual sentences had produced a total effective non-parole period of approximately 78.7% of the total sentence, rather than the 75% ratio prescribed by section 44 of the Crimes (Sentencing Procedure) Act 1999. No issue was raised with the objective or subjective findings underpinning the sentences.

  • Whether the sentencing judge erred in failing to find special circumstances in relation to count 4 (persistent sexual abuse), resulting in a non-parole period not adjusted beyond the statutory ratio for that count.
  • Whether the accumulation of individual sentences produced a total effective non-parole period that exceeded the statutory three-quarter ratio, in the absence of a finding of special circumstances to justify that result.

Decision

Adams J (with Hodgson JA and Hall J agreeing) found that while the sentencing judge had expressed an intention to find special circumstances applicable to the total effective sentence, the partial accumulation of sentences had inadvertently produced an overall non-parole period of 78.7% of the head sentence. This exceeded the 75% ratio required under section 44 by a margin equivalent to approximately six months.

The Court noted that there is no absolute prohibition on imposing a non-parole period exceeding 75% of the head sentence, but that the outcome produced here was plainly not what the sentencing judge intended, given the express finding of special circumstances directed at the overall effective sentence. The Court drew on the established approach in R v Attard [2004] NSWCCA 376, where Buddin J observed that the Court of Criminal Appeal had intervened on numerous occasions where accumulation of sentences produced a disproportionate non-parole period.

The correction was made by reducing the non-parole period on count 4 (persistent sexual abuse) from 7 years and 2 months to 7 years. This adjustment brought the overall effective non-parole period into conformity with the statutory ratio, producing a total effective sentence that expired on 5 November 2019 with the non-parole period expiring on 5 November 2016.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence on count 4 allowed.
  • Sentence on count 4 quashed and replaced with a non-parole period of 7 years from 6 November 2009 (expiring 5 November 2016) and a balance of term of 3 years (expiring 5 November 2019).
  • Appeal otherwise dismissed.
  • The appellant to be eligible for release on parole on 6 November 2016.

Key Takeaways

  • Where accumulation of individually correct sentences produces a total effective non-parole period exceeding 75% of the head sentence, the Court of Criminal Appeal will intervene to correct the outcome, consistent with its approach in R v Attard and a line of earlier authority.
  • A non-parole period exceeding 75% of the head sentence is not prohibited as a matter of law, but it requires a finding of special circumstances or a deliberate sentencing intention to justify it.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, the statutory ratio between the non-parole period and the head sentence applies to the total effective sentence, not merely to individual counts in isolation.
  • No error was established in relation to the sentencing judge's objective findings, subjective findings, or overall assessment of the criminality involved, and the appeal succeeded only on the narrow arithmetical point concerning the ratio.
  • Reducing a non-parole period on a single count is a practical and appropriate mechanism for correcting a ratio error produced by accumulation, without disturbing the remainder of the sentencing structure.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 44
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61O(1), 66A, 66EA

Cases:
- R v Attard [2004] NSWCCA 376
- R v Simpson (1992) 61 A Crim R 58
- R v Close (1993) 31 NSWLR 742
- R v Bolamatu [2002] NSWCCA 454
- R v LWP [2003] NSWCCA 215
- R v Keen [2004] NSWCCA 86
- R v Jammeh [2004] NSWCCA 327