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11
Court of Criminal Appeal 1 November 2011

MH v REGINA

[2011] NSWCCA 230

Sexual offences
CRIMINAL LAW SENTENCING AGGRAVATED SEXUAL ASSAULT ON CHILD TOTALITY

Citation: MH v REGINA [2011] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 1 November 2011
Judge(s): Campbell JA, RS Hulme J, Hoeben J

Background

The applicant, a stepfather, pleaded guilty to nine counts of serious sexual offending against his two stepdaughters. The offences were committed between 2005 and 2007. The first complainant was aged between nearly 10 and just over 12 at the time; the second was between 15 and 15 years and three months. The offences included sexual intercourse with a child under 10, multiple counts of aggravated sexual intercourse with a child aged 10 to 14, aggravated sexual assault, and aggravated indecent assault.

The applicant was sentenced in the District Court by Hock DCJ on 14 May 2010, following an earlier sentence that had been quashed on appeal. He sought leave to appeal the second round of sentences, raising several grounds including errors in the application of the totality principle and an incorrect commencement date for the sentences.

  • Whether the sentencing judge fell into error in applying the totality principle when imposing cumulative sentences across nine counts
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentences commenced from the correct date, given the applicant had been arrested on 9 November 2007 but the sentences were backdated only to 11 November 2007
  • Whether the standard non-parole period provisions had been correctly applied, having regard to the High Court's decision in Muldrock v The Queen [2011] HCA 39

Decision

RS Hulme J, with whom Hoeben J agreed, granted leave to appeal and allowed the appeal. His Honour found that the sentencing judge had erred in the application of the totality principle. The cumulative structure of the original sentences, when viewed as a whole, did not properly reflect the totality principle, which requires that an aggregate sentence remain proportionate to the overall criminality rather than being merely the arithmetic sum of individual sentences.

His Honour also identified a discrete error in the commencement date. The applicant had been arrested on 9 November 2007, but the original sentences commenced on 11 November 2007. The Court found no satisfactory explanation for the two-day discrepancy in the material before it, and corrected the commencement date to 9 November 2007.

The Court resentenced the applicant on all nine counts, restructuring the individual terms and their commencement dates to achieve a result consistent with the totality principle. Campbell JA agreed with the outcome but expressed reservations about certain passages in RS Hulme J's reasons concerning the appellate court's position when reviewing inferences drawn by a sentencing judge. Hoeben J noted that the relevant paragraphs had not been fully argued and declined to express any opinion on them.

Orders Made

  • Leave to appeal granted
  • Leave granted to amend the Notice of Appeal to add an additional ground
  • Appeal allowed
  • Sentences imposed by Hock DCJ on 14 May 2010 quashed
  • Applicant resentenced as follows:
  • Count 4: non-parole period of 1 year from 9 November 2007, further term of 4 months from 9 November 2008
  • Count 8: non-parole period of 1 year from 9 May 2008, further term of 4 months from 9 May 2009
  • Count 1: non-parole period of 3 years from 9 November 2008, further term of 1 year from 9 November 2011
  • Count 2: fixed term of 3 years from 9 November 2009
  • Count 3: fixed term of 5 years from 9 November 2010
  • Count 5: fixed term of 6 years from 9 November 2011
  • Count 6: fixed term of 5 years and 6 months from 9 November 2012
  • Count 7: non-parole period of 6 years from 9 November 2013, further term of 2 years from 9 November 2019
  • Count 9: non-parole period of 5 years from 9 November 2014, further term of 3 years from 9 November 2019
  • Earliest parole eligibility date recorded as 9 November 2019

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle applies when multiple serious sexual offences are sentenced cumulatively: the resulting aggregate must remain proportionate to the offender's overall criminality and not simply reflect an arithmetical accumulation of individual terms.
  • Where a sentence commencement date does not align with the actual date of arrest and no adequate explanation appears in the material before the court, a correction to the earlier date is appropriate.
  • Resentencing following a successful totality appeal can require a comprehensive restructuring of commencement dates across all counts, not merely an adjustment to individual terms in isolation.
  • Campbell JA's separate reasons signal ongoing caution about the extent to which an appellate court should substitute its own inference for that of a sentencing judge, beyond the resolution of findings of primary fact, consistent with the principles stated in Warren v Coombes (1979) 142 CLR 531.
  • In dismissing grounds related to the standard non-parole period provisions, the Court applied the High Court's clarification in Muldrock v The Queen [2011] HCA 39 regarding the proper treatment of standard non-parole periods as a sentencing guidepost rather than a fixed starting point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J(1), 61M(1), 66A, 66C(2)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39
- Warren v Coombes (1979) 142 CLR 531
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (1987-1988) 164 CLR 465
- Baumer v The Queen (1988) 166 CLR 51
- R v Hibberd [2009] NSWCCA 20
- R v Daley [2010] NSWCCA 223
- Ingham v R [2011] NSWCCA 88
- Mulato v R [2006] NSWCCA 282
- Smith v R [2011] NSWCCA 163