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Court of Criminal Appeal 4 December 2014

GJ v R

[2014] NSWCCA 292

Sexual offences
CRIMINAL LAW APPEAL SENTENCING TOTALITY ADEQUACY OF REASONS

Citation: GJ v R [2014] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 4 December 2014
Judge(s): Simpson J, Price J, McCallum J

Background

The appellant pleaded guilty in the Local Court to six serious sexual offences against his youngest daughter, committed over approximately eight years from 2000 to 2008, when the victim was aged between seven and fourteen years old. The offences included aggravated sexual intercourse without consent, aggravated indecent assault, and using a child for pornographic purposes. Four further offences of aggravated indecent assault were placed on a Form 1 (meaning they were taken into account when sentencing for the principal offence, without a separate penalty being imposed).

In the District Court, Sweeney DCJ sentenced the appellant to a total effective term of nine years' imprisonment, with a non-parole period of six years. The sentences were structured as partly concurrent and partly accumulated, with a 25 per cent reduction applied across all sentences to reflect the utilitarian value of the early guilty pleas. The appellant sought leave to appeal out of time, filing his application approximately two years and six months after sentence was imposed.

  • Whether the sentencing judge failed to apply the totality principle, instead simply adding up individual sentences
  • Whether the sentencing judge failed to give adequate reasons for ordering some sentences to be accumulated rather than concurrent

Decision

At the outset, the Court refused an adjournment sought by the appellant's counsel to obtain further material explaining the lengthy delay in commencing the appeal. The Court considered the proposed grounds had no merit and that no injustice would result from proceeding to determine the application.

On the totality ground, the Court referred to the established framework from Pearce v The Queen (1998) 194 CLR 610, which requires a sentencing judge dealing with multiple offences to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence, and totality. The judge's remarks explicitly stated that the sentences would be "partly concurrent and partially accumulated" to achieve an appropriate total sentence, and her Honour noted the finding of special circumstances in varying some non-parole periods. The Court found the judge had plainly undertaken the required exercise.

On the adequacy of reasons, the Court held that the sentencing judge was not obliged to explain the precise structure of the sentence beyond what her Honour had already stated. The total effective sentence was found to be appropriate for the full scope of the offending and was not a crushing sentence. Leave to appeal out of time was refused.

Orders Made

  • Application for adjournment refused
  • Leave to appeal out of time refused

Key Takeaways

  • A sentencing judge dealing with multiple offences must fix a sentence for each offence individually, then address cumulation, concurrence, and totality: Pearce v The Queen (1998) 194 CLR 610 confirmed this obligation applies directly to multi-offence sentencing exercises.
  • Under the totality principle, the overall sentence must properly reflect the total criminality involved, but the sentencing judge retains a discretion as to whether sentences are accumulated or concurrent: Cahyadi v R [2007] NSWCCA 1 and R v Wilson [2005] NSWCCA 219.
  • A sentencing judge is not required to provide an elaborate explanation of the structural mechanics of partial accumulation, provided the remarks disclose that the totality exercise was undertaken.
  • In dismissing the application, the Court of Criminal Appeal confirmed that a substantial unexplained delay in seeking leave to appeal out of time will not automatically result in an adjournment, particularly where the proposed grounds are found to be without merit.
  • No injustice was found to arise from refusing the adjournment application where the Court had formed a clear view that the appeal had no prospects of success on its merits.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 91G(1)(a), 91G(2)(a)

Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Wilson [2005] NSWCCA 219
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115