Citation: R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2011] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 13 September 2011
Judges: Macfarlan JA, James J, McCallum J
Background
Three co-accused were jointly tried and convicted of aggravated sexual intercourse without consent under s 61J of the Crimes Act, relating to events on the night of 30-31 August 2006 involving a 15-year-old complainant. One of the three, Makasa, was also convicted on three additional counts of sexual intercourse with a person aged between 14 and 16 years under s 66C(3), arising from the same evening.
On 8 October 2010, the Court of Criminal Appeal (by majority) quashed all three convictions on count 1. In the same judgment, the Court dismissed the Crown's appeal against the leniency of the sentences imposed on Makasa for his s 66C(3) offences, and varied the commencement date of those sentences so that they ran from March 2008. That variation meant Makasa had already served the full term by the time orders were made.
The October 2010 judgment noted that reasons for dismissing the Crown sentence appeal would be published separately. This September 2011 judgment fulfils that commitment, with James J providing the reasons and the other members of the Court confirming their agreement.
Legal Issues
- Whether the sentences imposed on Makasa for the three s 66C(3) offences were manifestly inadequate
- Whether the sentencing judge erred by applying a mathematical formula to convert time in protective custody into an equivalent period of general custody
- Whether the sentencing judge erred in the degree to which he departed from the statutory ratio between the non-parole period and the balance of term
- Whether the sentencing judge failed to account for the fact that Makasa committed one offence while on conditional liberty
Decision
The Court considered five specific grounds of the Crown's sentence appeal. Three of those grounds related solely (or primarily) to the s 61J sentences, which became irrelevant once those convictions were quashed. The remaining grounds bearing on the s 66C(3) sentences were examined on their merits.
On the question of protective custody, James J accepted that the sentencing judge had erred. The Court of Criminal Appeal had previously held in Clinton v R [2009] NSWCCA 276 that a mathematical formula converting protective custody time into equivalent general population time is not an appropriate sentencing approach. That error was upheld. However, James J noted that even applying a 50 per cent uplift to the sentences to correct for that error, the non-parole periods would still have expired well before October 2010, making resentencing pointless in practical terms.
On the general ground of manifest inadequacy, James J accepted the sentences were lenient but found they did not fall below the lower boundary of the available sentencing discretion. Relevant factors included the absence of a standard non-parole period for s 66C(3), the offences occurring on the same day within hours of each other, the complainant's age of 15, and the fact that Makasa's own admissions were likely essential to securing the convictions. Two further charges where no admissions were made resulted in acquittals.
On the statutory ratio ground, James J declined to interfere, noting the wide discretion vested in a sentencing judge when determining whether special circumstances exist and the extent of any departure from the standard one-third balance.
Orders Made
• Dismiss the Crown appeal against sentence insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court must not apply a mathematical formula (such as treating every year in protective custody as equivalent to 18 months in general population) when accounting for time spent in protective custody: Clinton v R [2009] NSWCCA 276 applied.
- Even where a specific sentencing error is identified, an appellate court may decline to resentence if the practical effect of any correction would not alter the outcome, for example where the sentence has already been served.
- Leniency in a sentence does not automatically establish manifest inadequacy. The sentences must fall outside the entire range of a proper sentencing discretion before an appellate court will intervene.
- A sentencing judge retains broad discretion in determining whether special circumstances exist and how far to depart from the statutory ratio between non-parole period and balance of term; that discretion is not easily displaced on appeal.
- In dismissing the Crown appeal, the Court took into account that Makasa's admissions were likely essential to the Crown obtaining convictions, treating this as a relevant mitigating circumstance in the sentencing exercise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J, 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases
- Clinton v R [2009] NSWCCA 276