AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 25 June 2015

Attorney General for New South Wales v CMB

[2015] NSWCCA 166

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE RESIDUAL DISCRETION OFFENDER SENTENCED TO BONDS OFFENDER SERVED ALMOST A YEAR IN PRISON

Citation: Attorney General for New South Wales v CMB [2015] NSWCCA 166
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2015
Judges: Leeming JA; Simpson JA; Hamill J

Background

The respondent, CMB, sexually assaulted his daughter on numerous occasions between 2004 and 2007, when she was aged approximately 9 to 13. He was charged with a first set of sexual offences in 2011 and pleaded guilty at the earliest opportunity. Because those charges qualified as "child sexual assault offences" under the Pre-Trial Diversion of Offenders Act 1985 (NSW), CMB was assessed and found suitable for the Cedar Cottage Program, a diversionary scheme that allowed an offender who complied with its requirements to avoid a conventional criminal sentence.

During the assessment process for that Program, CMB was encouraged by Program staff to voluntarily disclose further offending as a sign of commitment to change. He did so, leading to a second set of charges: four counts of aggravated sexual assault and one count of aggravated indecent assault against the same complainant, committed in 2005 and 2006. He pleaded guilty to those charges on 23 November 2012. Critically, because the supporting Regulation to the Pre-Trial Diversion of Offenders Act had been repealed on 1 September 2012, the diversionary Program was not available for this second set of charges.

Both sets of charges came before the District Court on 31 January 2013. The first set was dealt with under the diversionary regime. The second set, the subject of this appeal, resulted in the sentencing judge imposing bonds rather than a custodial sentence. The Attorney General appealed that sentence under s 5D of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal initially allowed the Crown appeal and imposed a custodial sentence. CMB served almost a year in prison before the High Court allowed his further appeal, remitted the matter to the Court of Criminal Appeal, and restored the original District Court orders.

  • Whether the original sentences imposed by the District Court disclosed appellable error within the principles in House v The King (1936).
  • Whether, even if appellable error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to resentence CMB, having regard to the highly unusual procedural history and the time he had already served in custody.
  • How the repeal of the Pre-Trial Diversion of Offenders Regulation 2005 affected the availability of the diversionary Program, and the significance of the transitional provisions under s 30 of the Interpretation Act 1987 (NSW).
  • Whether the circumstances of CMB's voluntary disclosure of the second set of offences, made at the encouragement of Program staff, bore on the exercise of the residual discretion.

Decision

The Court found that the original sentence imposed in the District Court did disclose appellable error. A non-custodial bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not a sentence adequately reflecting the gravity of five offences carrying maximum penalties of 20 years and 7 years imprisonment respectively, with significant standard non-parole periods. The sentencing judge's reasoning was found to have been infected by error in the weight given to certain considerations.

However, the Court declined to resentence CMB, exercising the residual discretion available on a Crown sentence appeal. The residual discretion permits a court to dismiss a Crown appeal despite establishing error where, in all the circumstances, resentencing would produce an unjust outcome. The Court drew on the principles in R v Carroll and related authorities, which recognise that the discretion may be exercised where the passage of time and changed circumstances make resentencing inappropriate.

Several factors combined to make the case for exercising the residual discretion compelling. CMB had already served almost a year in custody following the earlier Court of Criminal Appeal decision, a period of imprisonment that would not have occurred but for the initial Crown appeal. The second set of charges arose entirely from his voluntary disclosure, made at the encouragement of Program staff, without which those offences would never have been prosecuted. Additionally, the repeal of the Regulation had removed access to the diversionary Program for the second charges through no fault of CMB's, disrupting the regime under which he had entered the process.

The Court acknowledged directly the position of the complainant, CMB's daughter, who had suffered severe psychological and physical harm. It recognised that she was entitled to a sense of grievance at how the proceedings had unfolded. The Court emphasised, however, that its duty was to apply the law, and that the law contemplates that not all sentencing errors will be corrected on appeal. The Crown appeal was dismissed, leaving the original bonds in place, with consequential issues about compliance with those bonds referred to pending District Court proceedings.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • Even where appellable error in an original sentence is established on a Crown appeal, the residual discretion to dismiss the appeal without resentencing may be exercised where the cumulative effect of procedural history, time served in custody, and other subjective circumstances makes resentencing unjust.
  • Time already served in custody as a direct result of a Crown appeal, later overturned by a higher court, is a weighty factor in the exercise of the residual discretion on remittal.
  • Under s 30 of the Interpretation Act 1987 (NSW), the repeal of the Pre-Trial Diversion of Offenders Regulation 2005 did not extinguish accrued rights under that Regulation for charges laid before 1 September 2012; however, the Program was unavailable for charges laid after that date because the Act alone could not sustain the diversionary regime.
  • Voluntary disclosure of further offending, made at the encouragement of a therapeutic program's staff as a condition of participation, can be a relevant mitigating factor in sentencing, particularly where the disclosure generated the very charges before the court.
  • In dismissing the appeal, the Court confirmed that the residual discretion on Crown appeals is not limited to cases where the disruption to the sentence is of the offender's own making, consistent with the approach in R v Carroll.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 5D
- Interpretation Act 1987 (NSW), s 30
- Pre-Trial Diversion of Offenders Act 1985 (NSW), ss 2A, 3A, 11, 14, 23, 24, 30, 30A
- Pre-Trial Diversion of Offenders Regulation 2005 (NSW)
- Subordinate Legislation Act 1989 (NSW), ss 10, 11
- Subordinate Legislation (Postponement of Repeal) Order (No 2) 2011

Cases:
- CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407
- House v The King [1936] HCA 40; 55 CLR 499
- R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45
- R v CMB [2014] NSWCCA 5
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 88 ALJR 372
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Ellis (1986) 6 NSWLR 603
- Environment Protection Authority v Condon [2014] NSWCA 149; 86 NSWLR 499
- Eastman v The Queen [2000] HCA 29; 203 CLR 1
- Mickelberg v The Queen (1989) 167 CLR 259