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Court of Criminal Appeal 18 August 2014

R v Reeves

[2014] NSWCCA 154

Sexual offencesAssault & violenceFraud & dishonesty
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE THE EFFECT OF RE EXPIRATION OF THE NON PAROLE PERIOD IMPOSED AT FIRST INSTANCE DELAY IN HEARING OF THE APPEAL

Citation: R v Reeves [2014] NSWCCA 154
Court: Court of Criminal Appeal, New South Wales
Date: 18 August 2014
Judges: Bathurst CJ; Hall J; R A Hulme J

Background

The respondent, a former medical practitioner, had been convicted in the District Court of three offences: dishonestly obtaining a benefit by deception, aggravated indecent assault, and maliciously inflicting grievous bodily harm with intent. The District Court sentenced him in July 2011 to an effective term of 3 years 6 months, with a non-parole period of 2 years.

The Court of Criminal Appeal had previously allowed a Crown appeal, finding those sentences manifestly inadequate, and increased the effective sentence to 5 years 6 months with a non-parole period of 3 years 6 months. The respondent successfully appealed that resentencing to the High Court, which held in December 2013 that the Court of Criminal Appeal had failed to consider whether to exercise its "residual discretion" to decline to intervene despite the inadequacy of the original sentences.

The High Court remitted the matter to the Court of Criminal Appeal for reconsideration of the Crown appeal in light of that error. By the time of the remitted hearing, the respondent had been released on parole under the revived District Court sentences and was residing at a Community Offender Support Program (COSP) centre subject to extensive conditions.

  • Whether the Court of Criminal Appeal, having identified manifest inadequacy in the original sentences, should nonetheless exercise the residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to decline to re-sentence the respondent
  • What factors are relevant to the exercise of that residual discretion, particularly in light of circumstances that had developed since the original sentencing
  • If re-sentencing was appropriate, what sentences should be imposed

Decision

The Court confirmed that, even where a sentence is found to be manifestly inadequate, the appellate court retains a discretion to decline to intervene. This "residual discretion" under s 5D of the Criminal Appeal Act 1912 arises because Crown appeals serve primarily to establish and communicate sentencing principles, not merely to correct the sentence of a particular individual. That corrective purpose can often be achieved by simply stating that the original sentences were wrong and explaining why.

In assessing the residual discretion, the Court considered several factors: the respondent's deteriorating health since sentencing, the extended delay in the proceedings (including the High Court appeal), the time the respondent had spent in COSP accommodation subject to onerous conditions (characterised as quasi-custody), the expiry of the original non-parole period, and the respondent's progress in rehabilitation. These factors collectively weighed against a full exercise of the Court's resentencing power.

The Court declined to exercise the residual discretion to dismiss the appeal entirely, concluding that the original sentences remained too lenient. However, those same mitigating circumstances called for some amelioration of the sentence it would otherwise impose. Rather than restoring the sentences from the first appeal, the Court imposed a reduced sentence for the grievous bodily harm offence, reflecting the changed circumstances since the original resentencing.

The sentences for the other two offences (the deception offence and the indecent assault offence) had already expired and were maintained at the levels previously set by the Court on the first appeal. The total effective sentence became 5 years with a non-parole period of 3 years, sitting between the District Court's original 3 years 6 months (non-parole: 2 years) and the first Court of Criminal Appeal sentence of 5 years 6 months (non-parole: 3 years 6 months).

Orders Made

  • Crown appeal against sentence allowed
  • Sentences imposed by the District Court on 1 July 2011 set aside
  • Respondent re-sentenced as follows:
  • Dishonestly obtaining a benefit by deception (s 178BA Crimes Act): non-parole period of 1 year 3 months commencing 1 June 2011, expiring 31 August 2012; parole period of 6 months expiring 28 February 2013
  • Aggravated indecent assault (s 61M(1) Crimes Act): non-parole period of 1 year 2 months commencing 1 June 2012, expiring 31 July 2013; parole period of 4 months expiring 30 November 2013
  • Maliciously inflicting grievous bodily harm with intent (s 33 Crimes Act): non-parole period of 1 year commencing 1 June 2013, expiring 31 May 2014; parole period of 2 years expiring 31 May 2016
  • The Court noted the non-parole period for the grievous bodily harm sentence had already expired by 31 May 2014; accordingly, the respondent was to remain on parole

Key Takeaways

  • Under s 5D of the Criminal Appeal Act 1912, an appellate court retains a discretion to decline to interfere with a manifestly inadequate sentence. The primary purpose of Crown appeals is to establish sentencing principles, and that purpose can often be served by articulating error without re-sentencing.
  • Relevant factors in exercising the residual discretion include deteriorating health, rehabilitation progress, expiry of the original non-parole period, delay in proceedings, and time spent in conditions amounting to quasi-custody. None of these factors is exhaustive or determinative.
  • Time spent by a respondent in a COSP facility subject to onerous conditions can constitute quasi-custody for the purposes of the residual discretion analysis, potentially weighing against the imposition of a heavier sentence.
  • Where the residual discretion is not exercised to dismiss a Crown appeal entirely, the same post-sentencing circumstances that informed that assessment may still warrant a reduction in the sentence that would otherwise be imposed on resentencing.
  • The Court of Criminal Appeal confirmed that it may consider material available at the time of the appeal hearing, not only circumstances as they existed at original sentencing, when determining both whether to exercise the residual discretion and what sentence to impose.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1), 61M(1), 178BA
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Reeves v The Queen [2013] HCA 57; 88 ALJR 215
- Reeves v R; R v Reeves [2013] NSWCCA 34
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Yang [2002] NSWCCA 464; 135 A Crim R 237
- R v Hernando [2002] NSWCCA 489; 136 A Crim R 451
- R v Hansel [2004] NSWCCA 436
- R v Tortell [2007] NSWCCA 313
- R v Deng [2007] NSWCCA 216; 176 A Crim R 1
- R v Todorovic [2008] NSWCCA 49
- Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v Allpass (1993) 72 A Crim R 561