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25
Court of Criminal Appeal 20 March 2015

MD v R

[2015] NSWCCA 37

Sexual offences
CRIMINAL LAW APPEALS SENTENCING SENTENCING DISCRETION MISCARRIED

Citation: MD v R [2015] NSWCCA 37
Court: Court of Criminal Appeal, New South Wales
Date: 20 March 2015
Judge(s): Gleeson JA (with Johnson J and Hall J agreeing)

Background

The applicant pleaded guilty in the District Court to two counts of aggravated sexual intercourse with a child under 10 years of age, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The victim was his eight-year-old daughter. A third offence of indecent assault of a person under 16 was taken into account on a Form 1 document. All three acts occurred on the same day.

The District Court sentenced the applicant to an overall term of 10 years and 3 months imprisonment, with a non-parole period of 7 years and 8 months. The sentencing judge made a finding of special circumstances, which under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits departure from the default ratio of non-parole period to total sentence. The default ratio requires the non-parole period to be at least three-quarters of the total sentence.

The applicant sought leave to appeal on the basis that, despite finding special circumstances, the sentencing judge failed to translate that finding into a sentence structure that actually departed from the statutory default.

  • Whether the sentencing judge erred by making a finding of special circumstances without giving that finding practical effect in the ratio between the non-parole period and the balance of term.
  • Whether the resulting sentence structure amounted to a miscarriage of the sentencing discretion.
  • Whether a lesser sentence was warranted in law, and if so, what the appropriate resentence should be.
  • Whether a further finding of special circumstances should be made on resentencing.

Decision

Gleeson JA found that the sentencing judge had made an express finding of special circumstances but the sentence as structured did not reflect that finding. Across both counts, the ratio of the non-parole period to the total term did not depart from the statutory default minimum of three-quarters in any meaningful way. The purpose of a special circumstances finding is to extend the period of supervised release on parole, which requires the balance of term to be proportionately larger than the default permits.

This error constituted a miscarriage of the sentencing discretion. The Court therefore had jurisdiction under s 6(3) of the Criminal Appeal Act 1912 (NSW) to intervene and resentence the applicant. The total length of the sentence, 10 years and 3 months, was not challenged and the Court accepted that figure as appropriate. The error was solely in the internal allocation between the non-parole period and the balance of term.

On resentencing, Gleeson JA made a fresh finding of special circumstances, noting the applicant's good prospects of rehabilitation and the need for extended supervision on release given identified risk factors, including social isolation. The Court maintained the same aggregate sentence but restructured each individual sentence to give genuine effect to the special circumstances finding, reducing the overall non-parole period by five months.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed in the District Court on 12 September 2013 quashed.
  • Count 1: imprisonment comprising a non-parole period of 6 years and 3 months (commencing 11 June 2012, expiring 10 September 2018), with a balance of term of 2 years and 9 months (expiring 10 June 2021).
  • Count 2: imprisonment comprising a non-parole period of 6 years and 9 months (commencing 11 December 2012, expiring 10 September 2019), with a balance of term of 3 years (expiring 10 September 2022).
  • First eligible parole date: 11 September 2019.
  • Effective total sentence: 10 years and 3 months with a non-parole period of 7 years and 3 months.

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is not merely a nominal step: the sentence structure must actually depart from the statutory default ratio of non-parole period to total term, or the sentencing discretion miscarries.
  • Where a sentencing court makes a finding of special circumstances but the resulting sentence ratios remain at or near the statutory default, that internal inconsistency constitutes an error capable of grounding appellate intervention.
  • The Court of Criminal Appeal, on resentencing, preserved the aggregate sentence length while restructuring the component periods to give the special circumstances finding genuine effect, reducing the non-parole period by five months.
  • Factors supporting a special circumstances finding on resentencing included prospects of rehabilitation, the benefit of extended parole supervision, and identified post-release risk factors such as social isolation that warranted a longer supervisory period.
  • The Court noted a discrepancy between the sentencing judge's characterisation of the psychologist's risk assessment (recorded as "low to moderate") and the actual assessment in the report ("low risk"), though no ground of appeal was pressed on this point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 218
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- AM v R [2012] NSWCCA 203
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Caristo v R [2011] NSWCCA 7
- Collier v R [2012] NSWCCA 213
- R v CMB [2014] NSWCCA 5
- Douar v R [2005] NSWCCA 455
- Gavel v R [2014] NSWCCA 56
- Kentwell v The Queen [2014] HCA 37
- Muldrock v The Queen [2011] HCA 39
- Power v R [1974] HCA 26
- R v Simpson [2001] NSWCCA 534
- Trad v R [2009] NSWCCA 56