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28
Court of Criminal Appeal 16 April 2013

Adam Jolly v R

[2013] NSWCCA 76

Also reported as (2013) 229 A Crim R 198
Sexual offences
CRIMINAL LAW SENTENCING SEXUAL GRATIFICATION SENTENCES MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Jolly v R [2013] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 16 April 2013
Judges: Hoeben CJ at CL, Slattery J, Bellew J

Background

The applicant pleaded guilty in the District Court to five offences arising from a single incident on 14 February 2010 in Wagga Wagga. The offences involved the abduction of a six-year-old girl from outside her home and the commission of a series of sexual offences against her at two locations before she was returned near her home approximately 80 minutes later.

The applicant was sentenced at first instance by Judge English in the District Court on 2 April 2012. The total sentence comprised a non-parole period of 15 years and 9 months, with a balance of term of 7 years, for offences including attempted sexual intercourse with a child under 10 (count 1), aggravated sexual intercourse with a child under 10 (count 3), two counts of aggravated indecent assault, and one count of detaining for advantage (kidnapping).

The applicant sought leave to appeal against the sentences imposed for counts 1 and 3 on the grounds that the sentencing judge had erred in her approach to objective seriousness and that the resulting sentences were manifestly excessive.

  • Whether the sentencing judge erred in treating the fact that the offences formed part of a series of acts directed at sexual gratification as an aggravating feature going to objective seriousness.
  • Whether the sentencing judge erred in her overall assessment of the objective seriousness of the offending.
  • Whether, having found the offending to be above the mid-range of objective seriousness, the sentencing judge erred by failing to specify to what extent the offending exceeded that range.
  • Whether the sentences imposed in respect of counts 1 and 3 were manifestly excessive, in the sense of being unreasonable or plainly unjust.

Decision

The Court of Criminal Appeal granted leave to appeal and found the sentences on counts 1 and 3 to be manifestly excessive. Bellew J (with whom Hoeben CJ at CL and Slattery J agreed) identified a core problem: the sentencing judge had made a series of findings favourable to the applicant that were not reflected in the sentences ultimately imposed.

Those favourable findings included that the applicant had no prior criminal history, that his pleas of guilty carried significant utilitarian value and spared the victim's family the trauma of a trial, and matters related to his mental health and the conditions of his custody. The Court found that, having made those findings, the sentencing judge had failed to afford them sufficient weight.

The Court was also concerned that the sentences imposed exceeded the established pattern of sentencing generally applicable to that type of offending. The combination of errors left the Court satisfied that the resulting sentences were manifestly excessive.

The sentences for counts 1 and 3 were quashed and the applicant was re-sentenced. The Court preserved the sentencing judge's finding of special circumstances (which allowed for a greater-than-usual proportion of the sentence to be served on parole), based on the applicant's mental health, his first time in custody, his conditions of custody, and the need for a longer supervisory period to support rehabilitation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence on count 1 (attempted sexual intercourse with a child under 10, s 66B Crimes Act 1900) quashed; replaced with a non-parole period of 10 years and 6 months commencing 25 February 2011, with a balance of term of 4 years and 6 months commencing 25 August 2021 and expiring 24 February 2026.
  • Sentence on count 3 (aggravated sexual intercourse with a child under 10, s 66A(2) Crimes Act 1900) quashed; replaced with a non-parole period of 12 years and 7 months commencing 25 May 2011, with a balance of term of 5 years and 5 months commencing 25 December 2023 and expiring 24 May 2029.
  • Total overall sentence: non-parole period of 13 years and 4 months commencing 25 August 2010 and expiring 24 December 2023, with a balance of term of 5 years and 5 months expiring 24 May 2029.
  • Earliest date for release to parole: 25 December 2023.

Key Takeaways

  • Where a sentencing judge makes factual findings favourable to an offender, those findings must be given adequate weight in the ultimate sentence; a failure to do so can render the resulting sentence manifestly excessive.
  • Manifest excess in the sense used here means a sentence that is unreasonable or plainly unjust, assessed in part by reference to the established pattern of sentencing for comparable offending.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be warranted where an offender is serving a first custodial term, has ongoing mental health needs, and requires an extended supervisory period to support rehabilitation.
  • In re-sentencing, the Court of Criminal Appeal preserved the original special circumstances finding as appropriate on the evidence, demonstrating that individual mitigating findings survive the appellate re-sentencing exercise where they were properly made.
  • The Court confirmed that consistency with the established sentencing range for a category of offending remains a relevant consideration when assessing whether a sentence is manifestly excessive, consistent with High Court authority including Muldrock v R (2011) 244 CLR 120 and Markarian v R (2005) 228 CLR 357.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2), 66B, 86(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Carroll v R [2009] HCA 13; (2009) 254 ALR 379
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Ibbs v The Queen (1987) 163 CLR 447
- Ingham v R [2011] NSWCCA 88
- Leslie v R [2013] NSWCCA 48
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- McCabe v R [2006] NSWCCA 220
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- PK v R [2012] NSWCCA 263
- R v AJP (2004) 150 A Crim R 575
- R v Cunningham [2006] NSWCCA 176
- R v King [2009] NSWCCA 117
- R v Nikolovska [2010] NSWCCA 153
- R v RLS [2012] NSWCCA 236
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145