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Court of Criminal Appeal 3 August 2011

SMITH James Duncan v R

[2011] NSWCCA 163

Sexual offences

Citation: Smith v R [2011] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 3 August 2011
Judges: Giles JA, RS Hulme J, Adams J

Background

The applicant was convicted by jury of nine sexual offences committed against a young girl (referred to as TM) on three separate occasions between 2001 and 2005. The offences occurred while the complainant and her father were staying at the applicant's home as family friends. The complainant was under ten years of age at the time of the first two groups of offences, and approximately eleven years old at the time of the third.

The offences included indecent assault and sexual intercourse with a person under ten (counts 1 to 6), and aggravated sexual assault and aggravated indecent assault in circumstances where the complainant was under sixteen (counts 7 to 9). Standard non-parole periods applied to counts 7, 8 and 9, but not to counts 1 to 6.

The District Court sentenced the applicant to an effective term of 14 years and 7 months, with a non-parole period of 11 years and 7 months. The applicant sought leave to appeal against those sentences on grounds that they were excessive. The Crown conceded the errors identified on appeal.

  • Whether the sentencing judge erred in taking into account the applicant being on bail when assessing the objective seriousness of counts 7, 8 and 9, which carry standard non-parole periods
  • Whether the sentences imposed for counts 1 to 6 were excessive
  • Whether it is appropriate to use the "range of objective seriousness" framework for offences that do not carry a standard non-parole period, and whether doing so in this case distorted the sentencing exercise

Decision

RS Hulme J (with Giles JA and Adams J agreeing) found that the sentences for counts 7, 8 and 9 were infected by error. The sentencing judge had factored in the applicant being on bail as an aggravating feature when placing the offences within the range of objective seriousness, a step applicable only in the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999. The bail status of an offender goes to objective seriousness within that framework, and including it in that assessment produced sentences that were excessive.

For counts 1 to 6, RS Hulme J found the sentences were also excessive on other grounds. The accumulation of terms across those counts produced an overall result that went beyond what was warranted, and the individual components required adjustment to achieve an appropriate total sentence. The non-parole period for count 7 was reduced in particular to bring the balance of the total term into a proportionate relationship with the effective sentence.

Giles JA added a caution about language. Even where a judge expressly recognises that a standard non-parole period does not apply, using the language of "range of objective seriousness" for offences without a standard non-parole period risks creating the impression that objective gravity has dominated the sentencing exercise to the exclusion of a proper holistic consideration of all objective and subjective factors. His Honour declined to say more on whether this had constituted a separate error in this case, but noted the language should be avoided in such circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Cogswell DCJ on 28 August 2009 quashed
  • Count 1: fixed term of 2 years from 31 August 2007
  • Count 2: fixed term of 3 years from 31 August 2007
  • Count 3: fixed term of 1 year from 31 August 2010
  • Count 4: fixed term of 1 year and 6 months from 31 August 2010
  • Count 5: fixed term of 3 years from 31 August 2010
  • Count 6: fixed term of 6 months from 31 August 2010
  • Count 7: non-parole period of 2 years and 10 months from 30 April 2012, with a balance of term of 2 years and 6 months from 28 February 2015
  • Count 8: non-parole period of 9 months from 31 August 2013, with a balance of term of 3 months from 31 May 2014
  • Count 9: non-parole period of 6 months from 31 August 2013, with a balance of term of 2 months from 28 February 2014
  • Earliest parole eligibility date recorded as 28 February 2015

Key Takeaways

  • Including an offender's bail status as a factor in assessing objective seriousness is appropriate only within the standard non-parole period sentencing framework under the Crimes (Sentencing Procedure) Act 1999. Applying it to offences that carry a standard non-parole period when the offender was on bail at the time of those offences is an accepted part of that framework, but the Court of Criminal Appeal confirmed that erroneous application of that approach will vitiate the resulting sentence.

  • The language of "range of objective seriousness" is associated with the standard non-parole period regime. Giles JA warned that using it when sentencing for offences that carry no standard non-parole period risks creating the impression that objective gravity has improperly driven the outcome, even where the judge has expressly disclaimed reliance on the regime.

  • Accumulation of sentences across multiple counts can itself found a finding of excess. Even where individual sentences are not each disproportionate, the combined effect may require adjustment to component terms to produce a just total sentence.

  • In re-sentencing, the Court applied a holistic approach, reducing both individual heads of sentence and the non-parole period for the principal offence to achieve a total sentence that properly reflected all relevant objective and subjective considerations.

  • The Crown's concession of error on appeal was treated as properly made and was ultimately determinative of the outcome, underscoring that prosecutorial concessions can substantially shape the appellate court's approach to re-sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
- R v Van Rysewyk [2008] NSWCCA 130
- Mulato v R [2006] NSWCCA 282
- R v King [2009] NSWCCA 117
- Hili and Jones v The Queen [2010] HCA 45; (2010) 85 ALJR 195
- R v Slack [2004] NSWCCA 128
- Rolfe v The Queen [2007] NSWCCA 155; 173 A Crim R 168
- R v PGM [2008] NSWCCA 172
- RWB v R [2010] NSWCCA 147
- BT v R [2010] NSWCCA 267
- Sivell v R [2009] NSWCCA 286 (referred to in judgment)