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6
Court of Criminal Appeal 30 November 2012

EJDG v R

[2012] NSWCCA 251

Sexual offences
CRIMINAL LAW APPEAL SENTENCE MISSTATEMENT OF CORRECT MAXIMUM PENALTY ERROR IN APPLYING STANDARD NON PAROLE PERIOD

Citation: EJDG v R [2012] NSWCCA 251
Court: Court of Criminal Appeal, NSW
Date: 30 November 2012
Judge(s): McClellan CJ at CL, Latham J, Fullerton J

Background

The applicant was convicted after trial on two counts of aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW). The offences were committed against his ten-year-old stepdaughter on two separate occasions in 2003 and 2004. The first involved deliberate entry into the victim's bedroom while she slept; the second occurred when the victim came to her mother's bed after a nightmare.

The sentencing judge imposed a total sentence of five years imprisonment with a non-parole period of three years. Both sentences were made wholly concurrent, despite the judge's finding that the separate nature of the offences warranted some accumulation.

The applicant sought leave to appeal on the basis that two errors in the sentencing process had produced a sentence that was excessive. The respondent conceded the errors but argued that no lesser sentence was warranted.

  • Whether the sentencing judge's misstatement of the maximum penalty (ten years rather than the correct seven years) materially affected the sentence and required resentencing.
  • Whether the sentencing judge erred in applying the standard non-parole period framework by following the since-disapproved approach in R v Way rather than the High Court's later approach in Muldrock v The Queen.
  • Whether, notwithstanding those errors, some other sentence was warranted in law under s 6(3) of the Criminal Appeal Act.

Decision

The Court granted leave to appeal but dismissed the appeal unanimously. McClellan CJ at CL, with Latham J and Fullerton J agreeing, held that neither error required the Court to intervene and impose a different sentence.

On the maximum penalty error, the Court confirmed the well-established principle that a sentencing judge's misstatement of the maximum penalty does not automatically require the appellate court to uphold the appeal and resentence the offender. The Court accepted that the applicant did not need to establish manifest excess to show the error was material, but found that it had not in fact materially affected the outcome. The correct maximum of seven years, together with the five-year standard non-parole period, was consistent with the sentences actually imposed.

On the Way error, the Court acknowledged that the sentencing judge had applied the framework from R v Way rather than the approach later confirmed by the High Court in Muldrock. However, the judge had ultimately departed from the standard non-parole period in the applicant's favour, citing his below-average intelligence, time in protective custody, employment history, and rehabilitation prospects. The practical result was not shown to have caused the applicant a worse outcome.

Turning to the overall sentence, McClellan CJ at CL characterised the first offence as warranting placement at the upper end of objective seriousness, given its deliberate and premeditated character. The second offence, while more opportunistic, was also found to be serious. Against the applicant's favourable subjective circumstances, including no prior convictions, community contributions, and good rehabilitation prospects, the total sentence of five years with a three-year non-parole period was found to be appropriate. Resentencing would have served no practical utility.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's error in stating the maximum penalty for an offence does not automatically entitle an offender to a reduced sentence on appeal. The Court of Criminal Appeal must still be satisfied under s 6(3) of the Criminal Appeal Act that some other sentence was warranted in law.
  • Applying the standard non-parole period framework from R v Way (rather than the High Court's approach in Muldrock) constitutes an error, but will not necessarily lead to a successful appeal if the ultimate sentence is appropriate on the correct analysis.
  • Where an applicant does not need to establish manifest excess to show a sentencing error was material, the appellate court will still examine whether the error actually affected the outcome before interfering.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that deliberate, premeditated sexual offending against a sleeping child victim may place the conduct at the upper end of objective seriousness for the relevant offence category.
  • Even where resentencing would technically be justified by identified errors, the Court may decline to resentence if doing so would serve no practical utility and the existing sentence is appropriate in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A-54D, s 54B
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 168; (2004) 60 NSWLR 168
- R v Ivimy [2008] NSWCCA 25
- Smith v R [2007] NSWCCA 138
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- Newton v R [2009] NSWCCA 128
- Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
- R v Zakaria [2002] NSWCCA 450