Citation: Cross v R [2012] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 10 September 2012
Judge(s): Allsop P, Hidden J, Davies J (Davies J delivered the principal judgment)
Background
The appellant had pleaded guilty to three counts arising from two separate sets of conduct. The first was an aggravated indecent assault against a child under ten years of age, committed in about 2004 while the appellant ran a children's sporting clinic at a Sydney primary school. The second and third counts, arising from events in early 2010, involved using a carriage service to transmit child pornography and possessing child pornography. Police executing a search warrant also recovered a laptop containing over 2,000 images and 190 videos classified as child pornography, with a significant proportion depicting serious sexual abuse.
The appellant was sentenced in the District Court in December 2010. The structure imposed by the sentencing judge included fixed terms for the first two counts and a partially accumulated sentence for the third. The total sentence was seven years with a non-parole period of four years and three months.
The appellant sought leave to appeal, contending that the sentencing judge had made legal errors in imposing a fixed term for an offence carrying a standard non-parole period, had misstated the maximum penalty applicable to the transmission offence, and had imposed a sentence that was manifestly excessive overall.
Legal Issues
- Whether the sentencing judge erred by imposing a fixed term for Count 1, which carried a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge applied the wrong maximum penalty when sentencing for Count 2 (transmission of child pornography via carriage service), and whether that error infected the sentence imposed
- Whether the overall sentence was manifestly excessive, having regard to the length of the fixed term on Count 2 and the complete accumulation of the Count 3 sentence
Decision
On Ground 1, the Court found that imposing a fixed term for Count 1 was an error. Count 1 carried a standard non-parole period, and the legislation does not permit a fixed term to be imposed for such an offence unless a finding is made that the matter falls outside the standard range with reasons given. No such finding was made here. The Court accepted this ground.
On Ground 2, the Court found that the sentencing judge had misdirected himself as to the correct maximum penalty for the Count 2 offence. This error was material to the sentencing exercise and constituted a further identifiable error warranting intervention.
On Ground 3, the Court accepted that the complete accumulation of the Count 3 sentence, combined with the errors already identified, contributed to an overall sentence that was excessive. Davies J found special circumstances existed by reason of the accumulation of sentences and the rehabilitation considerations the sentencing judge had himself recognised, justifying a longer additional term relative to the non-parole period.
The Court resentenced the appellant with a total non-parole period of two years and nine months and an equivalent additional term, restructuring the sentences across all three counts. The Court also flagged for further submissions whether an order under section 50 of the Crimes (Sentencing Procedure) Act 1999 was required in relation to Counts 1 and 3, as the aggregate term exceeded three years even though each individual sentence did not.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentences imposed by the District Court quashed
- Appellant resentenced as follows:
- Count 1 (with Form 1 matter): non-parole period of 18 months commencing 9 March 2010, expiring 8 September 2011, with a balance of term of 6 months
- Count 2 (with Form 16BA matter): fixed term of 15 months commencing 9 June 2011, expiring 8 September 2012
- Count 3: non-parole period of 3 months commencing 9 September 2012, expiring 8 December 2012, with a balance of term of 2 years and 9 months expiring 8 September 2015
- Parties directed to file further submissions within seven days on whether an order under section 50 of the Crimes (Sentencing Procedure) Act 1999 was required
Key Takeaways
- Imposing a fixed term for an offence that carries a standard non-parole period is a legal error where no finding has been made that the case falls outside the standard range; the Court of Criminal Appeal confirmed this as an error requiring correction on appeal.
- Where a sentencing judge applies an incorrect maximum penalty to a serious offence, that misdirection is capable of infecting the entire sentencing exercise and constitutes appellable error.
- Complete accumulation of sentences across multiple counts can contribute to a finding of manifest excess, particularly where the sentencing judge's own remarks acknowledged rehabilitation considerations that favour a longer additional term.
- Special circumstances justifying departure from the standard non-parole to additional term ratio may be found where sentences are significantly accumulated and where treatment programs inside and outside custody are material considerations.
- The application of section 50 of the Crimes (Sentencing Procedure) Act 1999 can raise a distinct question when individual sentences are each under three years but their aggregate exceeds that threshold; the Court here reserved that question for further submissions rather than resolving it without the benefit of argument.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 50
- Criminal Code Act 1995 (Cth)
Cases:
- DBW v R [2007] NSWCCA 236
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R v Dunn [2004] NSWCCA 346