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Court of Criminal Appeal 1 November 2012

Christie v R

[2012] NSWCCA 228

Sexual offencesDrugs
CRIMINAL LAW SENTENCING APPLICATION FOR LEAVE TO APPEAL ADMINISTERING AN INTOXICATING SUBSTANCE WHETHER MULDROCK ERROR WHETHER MANIFESTLY EXCESSIVE

Citation: Christie v R [2012] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 1 November 2012
Judge(s): Hoeben JA, Johnson J, Beech-Jones J (Beech-Jones J delivered the leading judgment)

Background

A jury convicted the applicant on three counts arising from events on 4 November 2008 in Manly. The first count involved administering Alprazolam (Xanax) to a 14-year-old victim under s 38 of the Crimes Act 1900, having falsely told her the drug would make her more aggressive rather than sedated. The second and third counts were separate charges of aggravated sexual intercourse without consent under s 61J(1), each constituting a distinct sexual act committed while the victim was heavily sedated and unable to respond or resist.

In the District Court, the applicant received cumulative sentences totalling a combined non-parole period of 12 years commencing February 2010 and expiring February 2022, with a balance of term expiring February 2026. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge took into account a fact (that the applicant surreptitiously slipped a further tablet into the victim's drink) that had not been established beyond reasonable doubt, contrary to the standard required for aggravating facts at sentence
  • Whether the sentencing judge fell into Muldrock error by treating the statutory standard non-parole period as a sentencing guideline or fixed benchmark, rather than using the instinctive synthesis approach
  • Whether the sentences were manifestly excessive in all the circumstances
  • Whether the degree of cumulation and concurrency applied across the three sentences was appropriate, given all counts arose from a single incident

Decision

The Court accepted that the sentencing judge had erred by factoring in the disputed allegation that the applicant had covertly placed an additional tablet into the victim's drink. Because the jury's verdict did not establish that fact, and it had not been proven beyond reasonable doubt to the sentencing judge's satisfaction, relying on it as an aggravating circumstance was a legal error. This finding opened the door for the Court to resentence.

The Court also found that, while the sentencing judge's approach was not entirely free from Muldrock concerns, the principal error was the reliance on the unproven fact. Under Muldrock v R [2011] HCA 39, a sentencing court must not treat the standard non-parole period as a numerical starting point or benchmark; instead, the court must approach sentencing by instinctive synthesis, taking all relevant factors into account at once. The Court was satisfied this principle required it to approach resentencing afresh.

On resentencing, the Court characterised both sexual assault offences as serious but set terms of eight years imprisonment for each, broadly reflecting the objective gravity identified by the original sentencing judge while removing the influence of the unproven fact. The Court rejected complete concurrency across all three sentences because that would have effectively extinguished any separate punishment for administering the drug.

On the question of cumulation, the Court staggered the commencement dates to reflect the distinct criminality of each count while avoiding a crushing aggregate sentence. The sentence for count 4 was ordered to commence two years after count 1, and count 2 to commence one year after count 4. The non-parole period for count 2 was reduced under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to bring the ratio of the balance of term to the combined non-parole period closer to the statutory ratio.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • All sentences imposed by the District Court on 11 March 2011 set aside, and in their place:
  • Count 1 (s 38, administering intoxicating substance): fixed term of 5 years imprisonment commencing 11 February 2010, expiring 10 February 2015
  • Count 4 (s 61J(1), penile penetration): non-parole period of 6 years commencing 11 February 2012, expiring 10 February 2018, plus balance of term of 2 years expiring 10 February 2020
  • Count 2 (s 61J(1), cunnilingus): non-parole period of 5 years commencing 11 February 2013, expiring 10 February 2018, plus balance of term of 3 years expiring 10 February 2021
  • Combined effect: total non-parole period of 8 years expiring 10 February 2018, with an additional term expiring 10 February 2021

Key Takeaways

  • A sentencing court cannot rely on a disputed fact that aggravates an offence unless that fact has been proven beyond reasonable doubt; doing so constitutes a legal error that may vitiate the sentence and require resentencing.
  • Under Muldrock v R [2011] HCA 39, a standard non-parole period must not be used as a numerical starting point or benchmark; the sentencing court is required to undertake an instinctive synthesis of all relevant factors.
  • Where multiple offences arise from a single incident, complete concurrency of sentences is not automatically appropriate; partial cumulation may be required to ensure that distinct criminality attracts a distinct, effective penalty.
  • Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 permits adjustment of non-parole periods to maintain an appropriate ratio between the non-parole period and the balance of term when sentences are staggered across multiple offences.
  • In resentencing, the Court of Criminal Appeal reduced the combined non-parole period from 12 years to 8 years, with the reduction attributable to the removal of the unproven aggravating fact and a recalibration of the degree of cumulation across the three sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Pt 4, s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Muldrock [2010] NSWCCA 106
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Butler v R [2012] NSWCCA 23
- Ruttley v R [2010] NSWCCA 118
- R v Street [2005] NSWCCA 139