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33
Court of Criminal Appeal 19 September 2013

MPB v R

[2013] NSWCCA 213

Also reported as (2013) 234 A Crim R 576
Sexual offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE OLD CHILD SEX OFFENCES

Citation: MPB v R [2013] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 19 September 2013
Judges: Basten JA; R A Hulme J; Garling J

Background

The applicant, a 73-year-old man, pleaded guilty to seven counts of sexual assault against his daughter (counts 1 to 4) and his granddaughter (counts 5 to 7). The offences covered by counts 1 and 2 were committed approximately 40 years before sentencing took place at the Campbelltown District Court on 31 May 2012. The applicant was not identified by name to protect the victims, who were under 16 at the time of the offences.

The District Court imposed sentences that the applicant challenged on several grounds, including that they were manifestly excessive when measured against sentencing patterns at the time the older offences were committed. The long gap between offending and conviction arose because of delayed reporting by the victims, a feature that the Court of Criminal Appeal noted raises difficult sentencing questions that had not previously been addressed in a systematic and coherent way.

A further procedural question arose because the parties sought to place before the Court of Criminal Appeal material that had not been before the sentencing judge, specifically information about historical sentencing practices. The Court ultimately found it unnecessary to resolve that procedural question, because the additional material was not of a type relevant to the sentencing exercise.

  • Whether the sentences imposed were manifestly excessive, having regard to sentencing patterns and practices at the time the offences were committed rather than at the time of sentencing
  • Whether an established pattern of sentencing existed for child sexual assault offences in the 1970s that the sentencing court was required to apply
  • Whether the sentencing judge gave adequate regard to the full spectrum of criminality encompassed by the old statutory offence (then s 76 of the Crimes Act 1900) when calibrating sentences against the available maximum penalties
  • Whether errors occurred in the application of a discount for guilty pleas
  • Whether the concurrent and accumulated sentence structure properly reflected the totality of the applicant's criminality

Decision

The Court of Criminal Appeal granted leave to appeal, finding that the proper approach to sentencing for offences committed decades before conviction had not been consistently or coherently addressed in prior authority. The Court confirmed, following the five-judge decision in R v MJR [2002] NSWCCA 129, that a sentencing court must have regard to sentencing patterns and practices as they stood at the time of the offending, particularly where those practices were more favourable to the offender than current practices. This obligation is reinforced by s 19 of the Crimes (Sentencing Procedure) Act 1999, which prevents increases in maximum penalties from applying retrospectively.

On the question of how to apply historical maximum penalties, the Court emphasised that the old s 76 of the Crimes Act 1900 encompassed a much wider range of conduct than its modern equivalents. Where an old provision covered conduct significantly more serious than that to which the offender actually pleaded guilty, the maximum penalty becomes less useful as a sentencing guide, and the court must carefully locate the offender's conduct within the full spectrum of behaviour captured by the old offence.

The Court identified errors in the original sentencing, including in the treatment of the guilty plea discount and in the structure of accumulated sentences as they related to the totality principle. As a result, the Court set aside all sentences and resentenced the applicant. The revised sentence structure reduced the effective total term by 15 months compared to what the District Court had imposed, with the earliest parole eligibility date moving from 17 July 2016 to 17 April 2015.

Orders Made

  • Leave to appeal granted
  • Each sentence imposed by Delaney DCJ on 31 May 2012 was set aside
  • The applicant was resentenced as follows:
  • Count 1: Fixed term of 6 months, commencing 18 January 2011, ending 17 July 2011
  • Count 2: Fixed term of 6 months, commencing 18 January 2011, ending 17 July 2011
  • Count 3: Fixed term of 9 months, commencing 18 April 2011, ending 17 January 2012
  • Count 4: Fixed term of 9 months, commencing 18 April 2011, ending 17 January 2012
  • Count 5: Fixed term of 2 years, commencing 18 October 2011, ending 17 October 2013
  • Count 6: Fixed term of 2 years and 6 months, commencing 18 October 2011, ending 17 April 2014
  • Count 7: Total term of 6 years and 6 months commencing 18 October 2011, with a non-parole period of 3 years and 6 months
  • First eligible parole date: 17 April 2015

Key Takeaways

  • Where historical sentencing practices were more favourable to an offender than current practices, a sentencing court must have regard to those earlier patterns when sentencing for offences committed decades ago. This principle, confirmed by R v MJR and reinforced by s 19 of the Crimes (Sentencing Procedure) Act 1999, applies even where the delay between offending and conviction resulted from the victim's late reporting rather than from the offender's own conduct.

  • Locating an offender's conduct within the full spectrum of behaviour covered by the relevant historical offence is essential to the sentencing exercise. Where an old provision, such as the former s 76 of the Crimes Act 1900, encompassed conduct far more serious than the offender's actual conduct, the statutory maximum carries less weight and must be applied with care.

  • The Court of Criminal Appeal confirmed that attempts to place new material about historical sentencing practices before an appellate court (material not before the sentencing judge) raise unresolved procedural questions, though those questions were not ultimately decided here because the additional material was irrelevant to the sentencing task.

  • Errors in applying a guilty plea discount and in structuring accumulated sentences to reflect totality were each capable of vitiating the original sentence and warranting resentencing by the appellate court.

  • In resentencing, the Court reduced the effective total term by 15 months, demonstrating that errors in calibrating historical sentencing standards and in applying accumulation principles can have a material impact on the length of time an offender serves.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (historical)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Interpretation Act 1987 (NSW), s 30(1)
- Sentencing Act 1989 (NSW)
- Probation and Parole Act 1983 (NSW)

Key Cases
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v PLV [2001] NSWCCA 282; 51 NSWLR 736
- R v Shore (1992) 66 A Crim R 37
- Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
- AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32
- Magnuson v R [2013] NSWCCA 50
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- BP v R; R v BP [2010] NSWCCA 303
- Byrne v Garrisson [1965] VR 523
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321