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Court of Criminal Appeal 13 December 2012

Martin v R

[2012] NSWCCA 253

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT OF YOUNG CHILDREN PRODUCE CHILD PORNOGRAPHY MULTIPLE OFFENCES SPECIAL CIRCUMSTANCES

Citation: Martin v R [2012] NSWCCA 253
Court: Court of Criminal Appeal, NSW
Date: 13 December 2012
Judges: Hoeben JA, Davies J, Campbell J

Background

The appellant had been convicted of multiple offences against young children, spanning two distinct sets of conduct. The first set involved aggravated indecent assaults committed in 1992 against three girls aged between five and nine years old. The appellant had befriended the victims' families through church, used that trust to gain unsupervised access to the children, and carried out the assaults in the back of a van in which he was living.

The second set of offences related to child pornography and covert filming. The appellant had concealed a camera to record young girls aged between seven and eleven in private acts, producing child pornography as a result. Multiple additional counts of the same type were taken into account on a Form 1 (a procedural mechanism allowing related uncharged matters to be considered at sentencing without separate convictions being recorded).

Judge Garling of the District Court sentenced the appellant to a total term of five years and three months, with a non-parole period of three years and eleven months. The appellant sought leave to appeal, arguing that the sentencing judge had made a structural error in the way special circumstances were reflected across the individual sentences.

  • Whether the sentencing judge erred by increasing the additional term (the parole period component) to reflect special circumstances, rather than reducing the non-parole period, thereby producing individual sentences that did not reflect the correct ratio between the non-parole and additional terms.
  • Whether the overall non-parole period was consistent with the finding of special circumstances.
  • Whether the sentencing judge had correctly applied section 50 of the Crimes (Sentencing Procedure) Act 1999, which mandates the making of a parole order where a non-parole period of less than three years is imposed.

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error in the structure of the individual sentences for the second set of offences. When special circumstances are found, the correct approach is to reduce the non-parole period relative to the additional term, not simply to extend the additional term while leaving the non-parole period at or near the standard statutory ratio. The judge's method produced individual sentences where the ratio of non-parole period to additional term did not align with the special circumstances that had been identified.

Davies J, with whom Hoeben JA and Campbell J agreed, recalculated the sentences for the second set of offences. The revised sentences produced an overall non-parole ratio of approximately 68.25 percent, which the Court considered consistent with the sentencing judge's own findings about special circumstances. The total sentence length of five years and three months remained unchanged.

The Court also identified that the sentencing judge had not referred to, or made orders under, section 50 of the Crimes (Sentencing Procedure) Act 1999. That provision requires the court to make a parole order in respect of any sentence where the non-parole period is less than three years. Davies J noted that this had not been raised by counsel at the original sentencing hearing. Because all non-parole periods for the second set of offences were under three years, the Court made the required parole orders as part of the resentencing. Orders in respect of the first set of offences were futile because those non-parole periods had already expired by the time of the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Judge Garling for the second set of offences quashed.
  • In lieu, the appellant was resentenced as follows:
  • Count 2 (second set): non-parole period of 12 months commencing 30 July 2012, expiring 29 July 2013, with an additional term of 9 months expiring 29 April 2014.
  • Count 1 (second set, including Form 1 matters): non-parole period of 14 months commencing 30 September 2012, expiring 29 November 2013, with an additional term of 1 year and 8 months expiring 29 July 2015.
  • Counts 3 and 4 (second set): fixed term of 12 months commencing 20 July 2012, expiring 19 July 2013.
  • Direction that the appellant be released on parole at the expiry of the non-parole period for Count 2 (29 July 2013).
  • Direction that the appellant be released on parole at the expiry of the non-parole period for Count 1 (29 November 2013).

Key Takeaways

  • The correct method for reflecting special circumstances in a sentence is to reduce the non-parole period relative to the statutory ratio, not to extend the additional term while leaving the non-parole period unchanged. Doing the latter without adjusting the former produces a structural error in the sentence.
  • Where multiple sentences are being imposed concurrently or cumulatively, the overall ratio between the aggregate non-parole period and the total term is the relevant measure for assessing whether the finding of special circumstances has been properly reflected.
  • Under section 50 of the Crimes (Sentencing Procedure) Act 1999, a parole order is mandatory where a non-parole period of less than three years is imposed. The Court of Criminal Appeal confirmed that this obligation applies regardless of whether the issue was raised by counsel at the original hearing.
  • Resentencing on appeal in respect of expired non-parole periods is futile. The Court declined to make orders relating to the first set of offences because those non-parole periods had already run their course by the time of the appeal.
  • In cases involving multiple offences sentenced on the same occasion, the practical interaction between individual parole periods can mean a prisoner will not in fact be eligible for release at the end of one non-parole period due to another sentence still running. The Court noted this complexity but proceeded to make the required parole orders regardless, consistent with the mandatory terms of section 50(2).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 50

Cases
- Cross v R (No. 2) [2012] NSWCCA 234
- R v Hung Lo [2005] NSWCCA 436
- R v Huynh [1995] NSWCCA 220
- R v Tobar; R v JAN [2004] NSWCCA 391
- Terry v R [2006] NSWCCA 351