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15
Court of Criminal Appeal 13 September 2013

Montero v R

[2013] NSWCCA 214

Also reported as (2013) 234 A Crim R 532
Sexual offences
CRIMINAL LAW SENTENCE APPEAL NO LESSER SENTENCE WARRANTED EXTENSION OF TIME REFUSED

Citation: Montero v R [2013] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 13 September 2013
Judges: Leeming JA, R A Hulme J, Button J

Background

The applicant was convicted by jury of one count of indecent assault and two counts of aggravated sexual assault against a 15-year-old complainant who had been a guest at his home following a New Year's Eve party. The offences occurred in the early hours of New Year's Day 2008, when the applicant entered a bed where the complainant was asleep and subjected her to a serious series of sexual assaults despite her resistance. The sentencing judge imposed a total effective sentence of seven years with a minimum custodial term of four and a half years.

The applicant sought leave to appeal against sentence on two grounds. The first was that the sentencing judge attached undue significance to the standard non-parole period prescribed for aggravated sexual assault. The second was that the judge wrongly treated the location of the offences, namely the applicant's own home where the complainant was a guest, as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant was sentenced in October 2009 but did not file a notice of application for leave to appeal until November 2012, more than three years later. An extension of time was therefore required before the court could consider the substantive grounds of appeal.

  • Whether the sentencing judge erred by placing undue weight on the standard non-parole period for aggravated sexual assault (the "Muldrock error" ground)
  • Whether the sentencing judge erred in treating the applicant's home as an aggravating circumstance under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that the victim was a guest in the offender's own home rather than her own home
  • Whether an extension of time should be granted to bring the appeal, more than three years out of time

Decision

On the first ground, the court found no merit in the contention that the sentencing judge had applied the standard non-parole period in a manner that was inconsistent with the High Court's subsequent decision in Muldrock v The Queen (2011) 244 CLR 120. This ground was dismissed without extended analysis.

On the second ground, the court acknowledged that earlier decisions of the Court of Criminal Appeal had created some uncertainty about the application of s 21A(2)(eb) where the offences occurred in the offender's own home rather than the victim's. The provision is directed at an offence committed in the home of the victim, recognising the victim's entitlement to safety and security in that setting. However, the court held that the circumstances here, where the complainant was an overnight guest in the applicant's home and was therefore entitled to a reasonable expectation of safety and security, were capable of making the offence more serious. Even accepting that some error may have occurred, the court found that no lesser sentence was warranted within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW).

On the extension of time question, R A Hulme J refused the extension because the grounds of appeal lacked merit, and the applicant's own counsel had conceded that the extension should be refused if that were so. Leeming JA added a separate and independent basis for refusal, grounded in the principle of finality. His Honour reasoned that a subsequent change in the law, even one that might have altered the outcome at first instance, does not of itself justify reopening a concluded proceeding. The majority of the sentence had already been served, the delay was largely unexplained, and the application was driven by the adventitious circumstance of the Muldrock decision rather than any independent justification. Button J agreed with R A Hulme J.

Orders Made

  • Extension of time in which to file a notice of application for leave to appeal against sentence was refused.

Key Takeaways

  • Section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which treats commission of an offence in the victim's home as an aggravating factor, is not limited mechanically to the victim's own residence. The Court of Criminal Appeal confirmed that where a complainant is an overnight guest in the offender's home, the circumstances may still engage the provision because the complainant holds a reasonable expectation of safety and security.
  • Even where an aggravating factor is applied with some error, the court must separately consider whether a lesser sentence was warranted before an appeal against sentence can succeed, by reference to s 6(3) of the Criminal Appeal Act 1912 (NSW). No such lesser sentence was warranted on the facts here.
  • The principle of finality, as explained in the long-standing decision in Reg v Unger [1977] 2 NSWLR 990, operates to prevent re-opening concluded criminal proceedings simply because the law has developed differently since sentencing. Leeming JA applied this principle as an independent basis to refuse the extension of time.
  • Exceptional circumstances must be demonstrated before a court will depart from the finality principle and grant a late extension of time. An adventitious argument arising from a subsequent appellate decision, with no adequate explanation for years of delay, will not ordinarily suffice.
  • In dismissing the Muldrock error ground, the Court of Criminal Appeal reinforced that not every case decided after Muldrock warrants a successful appeal against sentence, particularly where the delay in bringing the application is substantial and largely unexplained.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Community Protection Act 1994
- Poisons Act 1966

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Reg v Unger [1977] 2 NSWLR 990
- R v Gregory [2002] NSWCCA 199
- Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
- Butler v R [2012] NSWCCA 23
- Edwards v R [2009] NSWCCA 199
- Arja v R [2010] NSWCCA 190
- R v Lawrence [1980] 1 NSWLR 122
- R v Knight [1998] 1 NZLR 583
- Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73
- State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737