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16
Court of Criminal Appeal 2 June 2014

SHR v R

[2014] NSWCCA 94

Also reported as (2014) 241 A Crim R 544
Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL ASSAULT MULTIPLE OFFENCES HISTORICAL OFFENCES JUVENILE OFFENDER

Citation: SHR v R [2014] NSWCCA 94
Court: Court of Criminal Appeal (NSW)
Date: 2 June 2014
Judges: Basten JA, Fullerton J, Davies J

Background

The applicant pleaded guilty in the District Court in September 2012 to seven serious offences committed between July 1989 and January 1990, when he was aged between 16 years and 3 months and 16 years and 9 months. The offences included five counts of sexual intercourse without consent (some committed in company), two armed robbery offences, and a steal from person charge, arising from three separate attacks on three different women.

The offences came to light in 2010 when a Cold Case Justice Project DNA match linked the applicant to all three incidents. He was 39 years old at the time of sentence, more than two decades after the offending occurred.

The District Court imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years. The applicant sought leave to appeal on the grounds that the sentencing judge failed to account for his youth and immaturity, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge adequately took into account the applicant's youth and immaturity at the time of the offences.
  • Whether the indicative sentences specified under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were calculated without properly applying the discount for the guilty plea.
  • Whether the aggregate sentence of 14 years was manifestly excessive, having regard to sentencing practice at the time the offences were committed in 1989 and 1990.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the District Court sentence and imposing a reduced aggregate sentence. All three judges agreed that the sentence required to be reduced, though Davies J noted that under current sentencing practice the original aggregate sentence would have been entirely appropriate.

A central issue was the requirement, confirmed in R v MJR [2002] NSWCCA 129, that where offences are historical, the sentencing court must sentence in accordance with the practices prevailing at the time the offences were committed. The sentencing judge had endeavoured to apply this principle but, as Fullerton J found after a close analysis of comparable cases from the relevant period, the indicative sentences and the aggregate sentence were manifestly excessive by reference to 1989 and 1990 sentencing practice.

The Court also identified a technical error under s 53A(2)(b): the sentencing judge had applied the discount for the guilty plea to the aggregate sentence rather than reflecting it within each indicative sentence. Basten JA noted that while this error was not determinative of the appeal's outcome, it caused confusion and was apt to produce a misreading of the sentence for other purposes.

Fullerton J concluded that the sentencing judge had not adequately addressed the applicant's youth and immaturity as a mitigating factor. While the objective seriousness of the offending was significant and correctly placed towards the higher range, proper weight needed to be given to the applicant's age of 16 at the time the offences were committed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In lieu, aggregate term of imprisonment of 12 years, dating from 11 September 2010, comprising a non-parole period of 8 years and a balance of term of 4 years.
  • Earliest eligible parole date: 10 September 2018.

Key Takeaways

  • Where offences are historical, sentencing courts are required by R v MJR to sentence in accordance with the practices prevailing at the time of the offending, even where that task is difficult due to the passage of time.
  • A discount for a guilty plea under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 must be reflected in each indicative sentence individually, not applied to the aggregate sentence as a whole.
  • Youth and immaturity at the time of offending carry significant mitigating weight, and a failure to give adequate consideration to an offender's age of 16 years at the time of the offences constituted an error in the sentencing exercise.
  • In dismissing any criticism of the original sentencing judge, the Court of Criminal Appeal acknowledged the difficulty of the task, noting that counsel had provided little assistance as to how the comparable cases before the court informed sentencing practice in 1989 and 1990.
  • Manifestly excessive sentences can result not from a mischaracterisation of objective seriousness, but from failing to calibrate the sentence against the historical benchmark required by law.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 18, 28
- Crimes Act 1900 (NSW), ss 61D, 94, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A; Pt 3
- Criminal Appeal Act 1912 (NSW), s 6
- Sentencing Act 1989 (NSW)
- Crimes (Amendment) Act 1989 (NSW)
- Probation and Parole Act 1983 (NSW)

Key Cases:
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368 (requirement to sentence according to practice at time of offending)
- R v PLV [2001] NSWCCA 282; 51 NSWLR 736 (difficulty in assessing historical sentencing practice)
- MPB v R [2012] NSWCCA 213 (principled approach to sentencing for "old" offences)
- BT v R [2012] NSWCCA 276
- KT v R [2008] NSWCCA 51
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- Rosenstrauss v R [2012] NSWCCA 25
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Fernando v R (1992) 76 A Crim R 58
- R v Murray (1987) 11 NSWLR 12