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Court of Criminal Appeal 22 April 2013

KW v R (No 2)

[2013] NSWCCA 84

Sexual offences
CRIMINAL LAW APPEAL SENTENCING SEXUAL OFFENCES ERROR FOUND IN SENTENCING APPLICANT RE

Citation: KW v R (No 2) [2013] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 22 April 2013
Judge(s): Simpson J (with Harrison J and Adamson J agreeing)

Background

In February 2013, the Court of Criminal Appeal allowed a severity appeal by an applicant who had been sentenced in the District Court in March 2011 for five sexual offences. The Court re-sentenced the applicant and imposed an aggregate sentence with a head sentence of 6 years and 6 months, commencing 7 April 2010, and a non-parole period of 5 years and 3 months.

In reaching that re-sentence, the Court expressly found "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, intending that finding to reduce the ratio of the non-parole period to the head sentence across the aggregate sentence. However, a discrepancy emerged between the Court's stated intention and the orders actually made.

The Crown drew the error to the Court's attention. The non-parole period as imposed represented approximately 81 per cent of the head sentence, rather than the reduced proportion the special circumstances finding was meant to achieve.

  • Whether the orders made on 19 February 2013 correctly gave effect to the finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the Court had power under Rule 50C of the Criminal Appeal Rules to set aside or vary those orders
  • How the sentences should be restructured to achieve the intended aggregate non-parole period

Decision

The Court accepted the Crown's submission that the aggregate sentence as expressed did not give effect to the earlier finding of special circumstances. Under the standard statutory ratio, a non-parole period must not exceed 75 per cent of the head sentence. For a head sentence of 6 years and 6 months, the standard non-parole period would be approximately 4 years and 10.5 months, yet the orders had produced a non-parole period equivalent to 81 per cent of the head sentence.

Rule 50C of the Criminal Appeal Rules confers power on the Court to set aside or vary an order in appropriate circumstances. The Court found those circumstances were plainly present here, given the discrepancy between the expressed intention at the time of re-sentencing and the orders that resulted.

The Court determined that the appropriate remedy was to reduce the non-parole periods on certain individual counts and to vary the accumulation arrangements, so as to produce an aggregate non-parole period of 4 years and 5 months. Neither the aggregate head sentence nor the individual head sentences required alteration to achieve this outcome.

Orders Made

  • Order 3 made on 19 February 2013 was set aside.
  • In its place, the applicant was re-sentenced as follows:
  • Count (v): 3 years and 9 months imprisonment commencing 7 April 2010, with a non-parole period of 2 years and 6 months expiring 6 October 2012
  • Counts (ii)-(iv): Fixed term of 1 year and 6 months commencing 7 October 2010, expiring 6 April 2012
  • Count (i): 5 years and 6 months imprisonment commencing 7 April 2011, with a non-parole period of 3 years and 5 months expiring 6 September 2014
  • The earliest date on which the applicant would be eligible for parole was 6 September 2014.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules allows the Court of Criminal Appeal to set aside or vary its own orders where a discrepancy exists between the court's expressed sentencing intention and the orders as formally made.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 permits a court to reduce the non-parole period below 75 per cent of the head sentence, and that finding must be accurately reflected in the orders ultimately made.
  • Where special circumstances are found in the context of multiple offences, the finding may be directed at affecting the aggregate non-parole period rather than the non-parole periods for each individual count.
  • Correcting the error in this case required adjusting only the non-parole periods and the accumulation arrangements across individual sentences, leaving the head sentences intact, to achieve the intended aggregate result.
  • The Crown's role in identifying a discrepancy between a court's stated intention and its formal orders was central to invoking the correction mechanism under Rule 50C.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Rules (NSW), r 50C

Cases:
- KW v R [2013] NSWCCA 31 (the original re-sentencing decision on appeal)