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District Court 20 June 2014

R v RC

[2014] NSWDC 386

Sexual offences
CRIMINAL AGGRAVATED INDECENT ASSAULT SENTENCE SENTENCING FOLLOWING A RE TRIAL THE ‘CEILING PRINCIPLE’

Citation: R v RC [2014] NSWDC 386
Court: District Court of New South Wales
Date: 20 June 2014
Judge: Judge S Norrish QC

Background

The offender, RC, was originally convicted by a jury and sentenced in December 2009 for three counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act 1900 (NSW). He was held in custody from 19 July 2007 until 24 September 2013, when the Court of Criminal Appeal allowed his appeal against some of those convictions and he was released on bail.

A retrial was ordered, and Judge Norrish sat as judge alone. The retrial resulted in guilty verdicts on two counts. The offender then appeared for resentencing on those two counts.

The central complication was that the offender had already spent six years, two months and six days in custody. The total sentence previously imposed by the original sentencing judge for the same two counts was five years and one month. The offender had therefore already served more time in custody than any sentence the resentencing judge could lawfully impose.

  • Whether the "ceiling principle" applied to cap the sentence on retrial at or below the sentence originally imposed for the same offences
  • Whether any exception to that principle applied, particularly whether the original sentences were "manifestly inadequate" or "remarkably lenient"
  • How totality and partial accumulation of now-expired sentences should be handled in the resentencing exercise
  • What sentences should be imposed, and in what structure, where both sentences had already fully expired

Decision

Judge Norrish confirmed the binding principle that, where a conviction is set aside and a retrial ordered, an offender should not ordinarily receive a longer sentence or non-parole period than was imposed after the first trial. Exceptions exist where the original sentence was manifestly inadequate or remarkably lenient, but those exceptions are rare. The judge found no basis to conclude that the sentences originally imposed fell into either category, noting also that the Crown had not appealed the original sentences as inadequate.

The practical consequence was stark. The offender had served more time in custody than the five years and one month total sentence available under the ceiling principle. The resentencing judge could not lawfully impose a sentence that would require the offender to serve additional time, and the offender was not remanded into custody.

The judge also considered the offender's risk of reoffending, his prior criminal history, and psychological reports indicating a personality disorder unlikely to resolve without intervention. However, these factors could not justify exceeding the ceiling set by the original sentences, since much of this material had been available to the original sentencing judge.

Sentences were structured by ordering the shorter sentence to commence first, reflecting standard totality principles. Because all sentences had already expired by the time of resentencing, there was no issue for the Parole Authority to address.

Orders Made

  • Count 4: convicted; sentenced to a non-parole period of two years commencing 19 July 2007 and expiring 18 July 2009, with a balance of sentence of eight months expiring 18 March 2010
  • Count 1: convicted; sentenced to a non-parole period of two years and six months commencing 19 January 2008 and expiring 18 July 2010, with a balance of sentence of two years and one month expiring 18 August 2012
  • The offender was not remanded into custody, as the totality of both sentences had already expired

Key Takeaways

  • The "ceiling principle" operates as a strong (though not absolute) constraint on resentencing after retrial: an offender should not ordinarily receive a greater sentence or non-parole period than was imposed following the original trial.
  • Exceptions to the ceiling principle exist where the original sentence was manifestly inadequate or remarkably lenient, but the District Court confirmed these exceptions are narrow and will rarely be exercised.
  • Where partial accumulation in the original sentencing was driven by the existence of other convictions that have since been set aside, the structure of any new sentences must be approached with care to reflect genuine totality.
  • A sentencing court retains its independent discretion even when applying the ceiling principle, but that discretion cannot simply be exercised to impose a higher sentence without a recognised justifying circumstance.
  • Where all sentences imposed on resentencing have already expired by the time of the proceeding, the offender is not remanded into custody and no parole question arises for the Parole Authority.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 54A, 54B and Pt 4, Div 1A

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39
- R v Gilmore (1979) 1 ACR 416
- R v McL v The Queen (2000) 203 CLR 452
- Bedford (1986) 5 NSWLR 711