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Court of Criminal Appeal 11 August 2011

NW v R

[2011] NSWCCA 178

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE RELATED MATTERS ON A FORM 1 WHETHER IMPERMISSIBLE "DOUBLE COUNTING" ISSUES OF TOTALITY

Citation: NW v R [2011] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 11 August 2011
Judge(s): Allsop P, Simpson J, Buddin J (unanimous)

Background

The applicant pleaded guilty in the District Court to two counts arising from a single incident on 8 December 2007. Count 1 was aggravated sexual intercourse with a child aged between 10 and 14 (his 11-year-old niece), carrying a maximum of 20 years imprisonment. Count 2 was using a child under 14 for pornographic purposes, carrying a maximum of 14 years. The circumstance of aggravation on Count 1 was that the victim was under the applicant's authority at the time.

Three further offences were placed before the sentencing judge on a Form 1 (a mechanism by which additional offences are formally acknowledged at sentencing and taken into account in fixing the penalty, without the offender being separately convicted of them). Those offences included a further act of aggravated sexual intercourse, producing child pornography, and aggravated indecent assault, all involving the same victim on the same occasion.

The District Court sentenced the applicant to 2 years imprisonment on Count 2 (non-parole period of 18 months), and 6 years and 8 months on Count 1 (non-parole period of 4 years and 2 months), with Count 1 commencing 12 months after Count 2. The resulting total effective sentence was 7 years and 8 months, with a non-parole period of 5 years and 2 months. The applicant sought leave to appeal on two grounds: impermissible double counting and failure to apply the totality principle correctly.

  • Whether the sentencing judge engaged in impermissible "double counting" by using the Form 1 material both to increase the sentence on Count 1 and as a basis for accumulating the sentences
  • Whether the period of accumulation between the two counts (12 months) was consistent with the totality principle, given that all offences arose from a single episode of criminality

Decision

The Court of Criminal Appeal accepted that some degree of double counting had occurred. The sentencing judge had already imposed a longer sentence on Count 1 to reflect the Form 1 matters, in accordance with the principle in the Attorney-General's Application (2002) 56 NSWLR 146. The judge then applied a 12-month accumulation period between the two counts, but did not adequately disentangle that exercise from the Form 1 offences that were already embedded in the Count 1 sentence. Given how closely interconnected all the offences were, this created an overlap that amounted to double counting.

On the totality issue, the Court accepted that some accumulation between the two counts was appropriate because the offence of using a child for pornographic purposes represented a discrete aspect of criminality, distinct from the sexual intercourse offences. However, the 12-month period of accumulation was excessive given the single episode of offending and the degree of overlap with the Form 1 material.

Rather than alter the individual sentences, the Court reduced the accumulation period from 12 months to 6 months. The individual sentences for each count were confirmed, but the commencement date for Count 1 was brought forward by six months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentences on Counts 1 and 2 confirmed
  • The commencement order for Count 1 was quashed; the non-parole period of 4 years and 2 months on Count 1 is to commence on 16 March 2009 and expire on 15 May 2013, with the balance of term (2 years and 6 months) expiring on 15 November 2015
  • The applicant is eligible for parole on 15 May 2013

Key Takeaways

  • Double counting arises where Form 1 material is used both to increase the head sentence on a count and then separately as a justification for accumulating sentences; the Court of Criminal Appeal confirmed that this constitutes a sentencing error warranting intervention.
  • A sentencing court must keep the Form 1 exercise distinct from the accumulation exercise, particularly where the Form 1 offences are closely interconnected with the counts on the indictment.
  • Where all offences arise from a single episode of criminality, the totality principle limits the extent to which sentences may be accumulated, even if some accumulation is warranted to reflect discrete aspects of the offending.
  • Reducing the period of accumulation, rather than altering individual sentences, was the Court's preferred mechanism for correcting the error in this case, preserving the integrity of the individual penalty assessments while achieving an appropriate overall result.
  • Some measure of accumulation remained justified here because using a child for pornographic purposes was treated as a discrete form of criminality, separate from the sexual intercourse offences, despite all conduct occurring on the same occasion.

Legislation and Cases Referenced

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Della-Vedova v R [2009] NSWCCA 107
- Pearce v The Queen (1998) 194 CLR 610
- R v Dudko (2002) 132 A Crim R 371
- R v MAK (2006) 167 A Crim R 159
- R v XX (2009) 195 A Crim R 38

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37 (Attorney-General's guideline judgment provision)
- Form 1 procedure under NSW sentencing legislation