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Court of Criminal Appeal 1 March 2013

Magnuson v R

[2013] NSWCCA 50

Sexual offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE ERROR IN APPROACH TO S 21A(2)(EA) LEAVE TO APPEAL AGAINST SENTENCE OLD CHILD SEX OFFENCES WHETHER PATTERN OF SENTENCING EXISTED

Citation: Magnuson v R [2013] NSWCCA 50
Court: Court of Criminal Appeal, New South Wales
Date: 1 March 2013
Judge(s): McClellan CJ at CL, Bellew J, Button J (judgment by Button J, others agreeing)

Background

The applicant was convicted following three separate trials of 25 sexual offences committed against three young girls, two of whom were his stepdaughters and one a relative. The offences involved repeated acts of indecent assault and sexual intercourse without consent, carried out in family homes over a period spanning the late 1970s to the mid-1980s. The victims were aged between seven and fifteen at the time the offences occurred.

In May 2011, the District Court sentenced the applicant to a total head sentence of 19 years' imprisonment with a non-parole period of 13 years. The sentencing judge structured the sentences so that those relating to the second and third victims ran wholly cumulatively upon those for the first victim.

The applicant sought leave to appeal against sentence, raising a number of errors in the sentencing approach and arguing that the overall sentence was manifestly excessive given sentencing practices applicable at the time the offences were committed.

  • Whether the sentencing judge erred in applying the aggravating features in s 21A(2)(ea) and s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999
  • Whether a discernible pattern of sentencing existed for these types of historical child sex offences at the time they were committed
  • Whether the individual sentences, considered in isolation, were manifestly excessive
  • Whether the imposition of wholly cumulative sentences was consistent with past sentencing practices applicable to offences of this vintage

Decision

The Court found error in the sentencing judge's approach to two of the statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. The judge had incorrectly applied s 21A(2)(ea), which relates to a victim being under the authority of the offender, and s 21A(2)(m), which concerns the commission of the offence as part of a planned or organised criminal activity. The Court accepted these grounds of appeal.

On the question of historical sentencing patterns, the Court examined comparable decisions to determine whether a recognisable pattern of sentencing had existed for these categories of offence at the time they were committed. The Court concluded that such a pattern could be identified, and that it was the court's obligation to sentence in conformity with that pattern rather than by reference to contemporary sentencing standards.

Examining the individual sentences, the Court found that no single sentence was manifestly excessive when viewed against past sentencing practices. However, the structure of the overall sentence was problematic. The sentencing judge had ordered the sentences for the second and third victims to run wholly cumulatively upon those for the first victim, producing a total that did not reflect how courts had approached comparable cases of multiple victims in the relevant era.

The Court resentenced by adjusting the commencement dates of the sentence groups for the second and third victims, and by reducing the non-parole period for one rape count. The result was a total head sentence of 16 years with a non-parole period of 9 years. Button J expressly noted that this outcome was a product of the historical sentencing framework and could not be taken as reflecting current sentencing standards.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Commencement dates of the nine sentences for offences against LM quashed; all nine sentences to commence on 26 February 2012.
  • Commencement dates of the four sentences for offences against JM quashed; all four sentences to commence on 26 August 2013.
  • Non-parole period of 6 years for the rape of JM (count 3) quashed; new non-parole period of 5 years imposed, commencing 26 August 2013 and expiring 25 August 2018.
  • The applicant's earliest date of eligibility for parole is 25 August 2018.

Key Takeaways

  • Where historical child sex offences are sentenced decades after they occurred, the sentencing court is required to apply the sentencing standards that prevailed at the time the offences were committed, not current sentencing benchmarks.
  • A pattern of sentencing for historical child sex offences can be established by reference to comparable decisions from the relevant era, and departure from that pattern may constitute a sentencing error.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, each aggravating factor must be applied with care and precision; the Court of Criminal Appeal found errors in the application of both the "person under authority" and the "planned or organised" aggravating factors on the facts of this case.
  • Individual sentences that are not in themselves manifestly excessive can nonetheless produce a manifestly excessive aggregate if ordered to run wholly cumulatively, particularly where past sentencing practices for multiple-victim offending did not support that structure.
  • The Court made clear that the reduced total sentence arising from this resentencing exercise reflected historical norms only, and carried no implication for the sentencing of comparable offences committed in the present day.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), especially s 21A(2)(ea) and s 21A(2)(m)
- Criminal Appeal Act 1912 (NSW)
- Sentencing Act 1989 (NSW)
- Probation and Parole (Serious Offences) Amendment Act 1987 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51
- Featherstone v R [2008] NSWCCA 71
- Hanania v R [2012] NSWCCA 220
- Ingham v R [2011] NSWCCA 88
- Moon v R [2000] NSWCCA 534
- Mottram v R [2009] NSWCCA 210
- NLR v R [2011] NSWCCA 246
- Pearce v The Queen [1998] HCA 57
- Power v The Queen (1974) 131 CLR 623
- PWB v R [2011] NSWCCA 84
- R v AEM [2002] NSWCCA 58
- R v Eagles (Court of Criminal Appeal, 16 December 1993, unreported)
- R v Henry [1999] NSWCCA 111
- R v MJR [2002] NSWCCA 129
- RLS v R [2012] NSWCCA 236
- RWB v R [2008] NSWCCA 93
- R v Tadrosse [2005] NSWCCA 145
- Rosenstrauss v R [2012] NSWCCA 25