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Court of Criminal Appeal 1 August 2012

VAN DER BAAN v R

[2012] NSWCCA 5

Sexual offences
CRIMINAL LAW

Citation: VAN DER BAAN v R [2012] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 1 August 2012
Judge(s): Beazley JA; Hall J; Harrison J

Background

The applicant pleaded guilty in 2009 to seven offences arising from two separate series of sexual assaults committed in 1995 and 1996. Three counts of aggravated sexual assault and one count of armed robbery involved a victim aged 18 (referred to as BH), while three further counts of aggravated sexual assault involved a second victim aged under 16 (referred to as SP). The applicant was 25 at the time of the first series of offences.

A complicating feature of the sentencing was that the applicant had also been convicted and sentenced for two other unrelated serious sexual assaults committed in 1996, with those earlier sentences having been imposed by different judges in 1997 and 2002. The sentencing judge in 2010 was therefore required to consider the principle of totality across all of that offending when constructing the overall sentence.

The District Court imposed a total effective sentence of 17 years and 3 months, with a non-parole period of 14 years and 3 months. The applicant sought leave to appeal on two grounds: first, that the sentencing judge had improperly used prior convictions to aggravate the objective gravity of the offences against SP; and second, that the overall sentence was manifestly excessive because insufficient concurrence had been built into the structure of the sentences.

  • Whether the sentencing judge erred by treating the applicant's prior convictions as aggravating the objective seriousness of the offences against SP, contrary to the principle that prior convictions are not to be used to increase objective gravity
  • Whether the overall sentence was manifestly excessive, having regard to the circumstances of the case and the applicant's total offending history
  • Whether the sentencing judge erred in his approach to the concurrence of sentences, resulting in an insufficient overlap between the sentences for the two groups of victims

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. Hall J concluded that the sentencing judge had determined the objective gravity of the offences independently, and only brought the prior convictions into account at a later stage of the sentencing process. This sequence was consistent with the established principle that prior convictions cannot elevate the objective seriousness of an offence but are properly relevant to other aspects of sentencing, such as an offender's prospects of rehabilitation and the assessment of the person's character.

On the question of manifest excess, the Court accepted that the individual sentences imposed were not, in themselves, manifestly excessive. Each sentence for the offences against SP of 12 years, with a non-parole period of 9 years, was within an acceptable range given the objective seriousness of the offending, including the use of a knife, the age of the victim, and the multiplicity of assaults.

However, the Court found that the sentencing judge had not allowed sufficient concurrence between the sentences for the BH offences and the SP offences. This error in the overall sentence construction produced a total effective sentence that was higher than the principle of totality required. The Court re-sentenced the applicant by advancing the commencement date of the SP sentences, thereby increasing the degree of overlap and reducing the total effective sentence.

Orders Made

  • Leave to appeal granted
  • The sentences for the offences against SP (Counts 5, 6, and 7) were varied so that the non-parole period of 9 years for each count commences on 23 February 2011 and expires on 22 February 2020, with a parole period of 3 years expiring on 22 February 2023
  • All three SP sentences run concurrently with each other
  • The total effective non-parole period across all seven offences became 12 years and 9 months, with a balance of parole of 3 years from 23 February 2023
  • The first date of parole eligibility was fixed at 22 February 2020

Key Takeaways

  • Prior convictions do not aggravate the objective gravity of a current offence; they remain relevant only after objective seriousness has been assessed independently, and using them in that confined way does not constitute legal error.
  • No error was established in the individual sentences imposed for the aggravated sexual assault counts, each of which fell within an acceptable range given the circumstances, including weapon use and the vulnerability of the victims.
  • Where a sentencing judge must sentence for offences against multiple victims, and where earlier sentencing proceedings involving related offending have already been concluded by other courts, the totality principle requires careful attention to how sentences are structured to run concurrently or consecutively.
  • In re-sentencing, the Court of Criminal Appeal corrected the error not by reducing the length of any individual sentence but by advancing the start date of the later group of sentences, thereby increasing the degree of concurrence and reducing the total effective term.
  • The decision illustrates that a sentence structure can be affected by manifest excess even where each constituent sentence is individually within range, if insufficient concurrence produces an overall term that is disproportionate to the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Clinch v The Queen (1994) 72 A Crim R 301
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
- Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v AEM & Ors [2002] NSWCCA 58
- R v Bilal Skaf [2005] NSWCCA 297
- R v Carlton [2008] NSWCCA 244; (2008) 189 A Crim R 332
- R v Dodd (1991) 57 A Crim R 349
- R v George [2004] NSWCCA 247
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66