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Court of Criminal Appeal 10 July 2014

Ingham v R

[2014] NSWCCA 123

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED MULTIPLE COUNTS MULTIPLE VICTIMS STATUTORY RATIO BETWEEN NON

Citation: Ingham v R [2014] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 10 July 2014
Judges: Basten JA, Fullerton J (principal judgment), R A Hulme J

Background

The appellant was convicted after trial in 2008 of eleven offences of a sexual nature committed against two children, aged eight and nine, over the course of a single weekend in October 2006. Eight counts alleged sexual intercourse with a person under ten years of age under s 66A(1) of the Crimes Act 1900 (NSW), attracting a maximum penalty of 25 years and a standard non-parole period of 15 years. The remaining counts included attempted sexual intercourse and aggravated indecent assault against each child.

The sentencing judge imposed an effective total term of 22 years and 4 months, with an effective non-parole period of 17 years. That outcome was largely driven by the standard non-parole period regime: the judge concluded he had very limited discretion given his findings that most offences were at or above the mid-range of objective seriousness, and that there were no mitigating subjective circumstances. An earlier appeal in 2011 resulted in minor corrections but left the overall sentence intact.

The present application arose under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), which allows referral to the Court of Criminal Appeal where doubt arises about the justness of a conviction or sentence. The Crown conceded that the original sentencing was affected by what is known as "Muldrock error," namely the sentencing judge treating the standard non-parole period as a de facto fixed starting point rather than as a legislative guidepost among other factors.

  • Whether the sentencing judge committed "Muldrock error" by treating the standard non-parole periods as effectively mandatory rather than as one of several sentencing guideposts
  • Whether, once that error was established, a lesser sentence was nonetheless warranted in law having regard to all circumstances
  • How to treat post-offence conduct and the conditions of custody on re-sentence
  • Whether the effective non-parole period exceeded the statutory ratio between the non-parole period and the balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court accepted the Crown's concession that the sentencing judge had applied a Muldrock error, treating the standard non-parole periods as a rigid constraint rather than as a guide. Under Muldrock v R (2011) 244 CLR 120, the High Court held that standard non-parole periods are not to be treated as fixed benchmarks from which a sentencing judge has only narrow room to depart. Establishing such an error opens the door to re-sentence, but does not by itself guarantee a lighter outcome.

On re-sentence, the Court undertook a fresh assessment of all relevant factors. It acknowledged the appellant's post-offence conduct, including evidence of rehabilitation efforts in custody, and the particular conditions of his imprisonment, as matters relevant to the balance of term. However, the Court found that the objective gravity of the offences remained extremely serious: multiple counts of sexual intercourse with very young children, involving penile, digital, and oral penetration, committed against two separate victims over a weekend.

Taking into account the full range of sentencing factors, including the appellant's prior conviction for sexual assault of a child, the absence of a guilty plea, and the multiplicity of victims and counts, the Court determined that the appropriate effective sentence was a total of 17 years. That comprised a non-parole period of 13 years and a balance of term of 4 years. The revised sentence was lower than the original but remained substantial, reflecting the Court's view that the objective seriousness of the offending justified a significant custodial term even when the standard non-parole periods were treated as guideposts rather than mandatory minimums.

Orders Made

  • Appeal allowed
  • All sentences imposed in the District Court on 19 September 2008 quashed
  • Re-sentenced as follows:
  • Counts 3 and 8 (aggravated indecent assault, s 61M(2)): 3 years non-parole period plus 1 year additional term each, commencing 20 October 2006 (both terms now expired)
  • Count 9 (s 66A, offence against JAW): 9 years non-parole period plus 4 years additional term, commencing 20 October 2006
  • Counts 10, 11, 12 (s 66A, offences against JAW): 7 years 6 months non-parole period plus 2 years 6 months additional term each, commencing 20 April 2009
  • Count 7 (s 66A, offence against JAW): 6 years non-parole period plus 2 years additional term, commencing 20 October 2010
  • Count 5 (s 66A, offence against CBS): 9 years non-parole period plus 4 years additional term, commencing 20 October 2010
  • Counts 2 and 4 (s 66A, offences against CBS): 7 years 6 months non-parole period plus 2 years 6 months additional term each, commencing 20 April 2012
  • Count 6 (s 66B, offence against CBS): 6 years non-parole period plus 2 years additional term, commencing 20 October 2013
  • Total effective term: 17 years, comprising a non-parole period of 13 years expiring 19 October 2019 and a balance of term of 4 years expiring 19 October 2023
  • Earliest eligible release date: 19 October 2019

Key Takeaways

  • Establishing a Muldrock error unlocks the jurisdiction to re-sentence, but a reduced sentence does not automatically follow. The Court of Criminal Appeal undertook an independent assessment of objective and subjective factors and arrived at an effective sentence that, while lower, remained severe.
  • Under the Muldrock framework, standard non-parole periods are legislative guideposts, not presumptive starting points. A sentencing judge who treats them as effectively obligatory misstates the correct approach.
  • Post-offence conduct and the conditions of imprisonment are legitimate considerations on re-sentence, particularly in shaping the balance of term, though they do not override the weight given to objective seriousness.
  • Where multiple counts involve separate victims and the offending is assessed as grave, the aggregation of individually structured sentences can still produce a substantial effective term even after Muldrock error is corrected.
  • The statutory ratio between the non-parole period and the balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be observed in structuring individual sentences; the earlier sentencing had exceeded that ratio in setting the effective non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 66B, 61M(2)
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Criminal Appeal Act 1912 (NSW)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Ingham v R [2011] NSWCCA 88 (earlier appeal)
- EK v R [2010] NSWCCA 199; 79 NSWLR 740
- Montero v R [2013] NSWCCA 214
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ali v R [2014] NSWCCA 45
- Carlton v R [2014] NSWCCA 14
- Grant v R [2014] NSWCCA 67
- R v Gavel [2014] NSWCCA 56
- RJA v R [2008] NSWCCA 137; 185 A Crim R 178 and [2014] NSW