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Court of Criminal Appeal 29 October 2014

R v Tonari

[2014] NSWCCA 232

Sexual offences
CRIMINAL LAW APPEAL SENTENCE CROWN APPEAL AGGREGATE SENTENCE HEAD SENTENCE 4 YEARS

Citation: R v Tonari [2014] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 29 October 2014
Judges: Johnson J, Harrison J, Garling J (Garling J delivering the principal judgment)

Background

The respondent was convicted by jury of five counts of aggravated sexual assault and two counts of indecent assault arising from a prolonged attack on a Japanese woman in her Sydney apartment in May 2011. The offences occurred after the respondent, who had been admitted to the victim's home on the basis he would sleep on the couch, entered her bedroom while she slept and subjected her to a sequence of sexual assaults. The victim suffered physical injuries including bruising and genital abrasion.

An earlier Court of Criminal Appeal decision had substituted four of the five aggravated sexual assault convictions with convictions for the lesser offence of sexual intercourse without consent under s 61I of the Crimes Act 1900, and remitted all seven counts for resentencing. In December 2013, Phegan ADCJ imposed an aggregate sentence of four years imprisonment with a non-parole period of two years and six months.

The Crown appealed against that sentence, contending it was manifestly inadequate and affected by several discrete errors.

  • Whether the sentencing judge failed to give proper regard to the standard non-parole period of seven years when imposing indicative sentences
  • Whether the sentencing judge gave proper consideration to accumulation, concurrency, and the totality principle when constructing the aggregate sentence
  • Whether the sentencing judge failed to give adequate weight to personal and general deterrence
  • Whether the judge erred in varying the statutory ratio between the non-parole period and head sentence to an extent that did not properly reflect the objective seriousness of the offending
  • Whether the aggregate sentence was manifestly inadequate
  • Whether, if error was established, the Court should exercise its residual discretion not to intervene

Decision

The Court of Criminal Appeal found no discrete error of law in the sentencing judge's treatment of accumulation and concurrency. The indicative sentences made plain the judge's reasoning as to which offences should be served concurrently and which cumulatively, and the judgment as a whole reflected a proper reference to totality. The Crown's ground concerning deterrence also failed to disclose a discrete error; the sentencing judge had referred to the statutory objects of sentencing and the indicative sentences did not suggest deterrence was overlooked.

The Court accepted, however, that the aggregate sentence was manifestly lenient. Each of the seven offences was individually serious, the offending occurred in the victim's own home (an aggravating factor), and the indicative sentences did not adequately reflect the cumulative weight of that aggravation when set against the standard non-parole period of seven years for the s 61I offences. The variation of the statutory ratio between the non-parole period and the head sentence was also found to have produced a non-parole period that did not properly reflect the seriousness of the conduct.

Notwithstanding that finding of manifest leniency, the Court exercised its residual discretion not to intervene. The respondent had spent approximately two and a half years on highly restrictive bail conditions before sentence commenced. During that period he was unable to work, was effectively confined to his accommodation, had no identification documents, and suffered significant depression. In custody he received no treatment for his diagnosed obsessive-compulsive disorder despite requesting it, had been assaulted, was isolated from family in Japan, and faced particular difficulties because of his limited English.

The Court also noted that the respondent had, by the time of the appeal, served more than half of his non-parole period. Increasing the sentence at that stage would substantially amplify the hardship he was already experiencing and would likely worsen his mental health condition. Weighing all of these circumstances, Garling J concluded the residual discretion should be exercised against intervention and dismissed the Crown appeal.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A finding of manifest inadequacy does not automatically produce a successful Crown appeal. Under the residual discretion, the Court of Criminal Appeal may decline to intervene where intervening would cause significant additional hardship disproportionate to the sentencing error identified.
  • Indicative sentences accompanying an aggregate sentence serve an important explanatory function. Where they reveal the sentencing judge's reasoning on accumulation, concurrency, and totality, a ground of appeal asserting a failure to consider those matters may be difficult to sustain.
  • Prolonged and restrictive bail conditions, even if not equivalent to quasi-custody, constitute a significant factor in the exercise of the residual discretion on a Crown appeal. Here, two and a half years of daily police reporting, passport surrender, and enforced unemployment weighed substantially in the analysis.
  • Where an offender has served a substantial portion of the non-parole period before the appeal is determined, the practical impact of resentencing becomes a material consideration rather than a mere afterthought.
  • Under the Crimes (Sentencing Procedure) Act 1999, varying the statutory ratio between the non-parole period and head sentence must not produce a non-parole period that fails to reflect the objective seriousness of the conduct, even where special circumstances are found.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 61I, 61J, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Tonari v R [2013] NSWCCA 232 (the earlier conviction appeal)
- Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022
- Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
- Butler v R [2012] NSWCCA 23
- Church v R [2012] NSWCCA 149
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166