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Court of Criminal Appeal 31 March 2015

LJS v R

[2015] NSWCCA 47

Sexual offences
CRIMINAL LAW SENTENCING TOTALITY

Citation: LJS v R [2015] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 31 March 2015
Judges: Meagher JA, Hidden J, RS Hulme AJ

Background

The applicant had pleaded guilty to 20 sexual offences against 12 child victims. The offences were committed across two broad periods: the majority between the mid-1970s and mid-1980s, with one further offence in 2002. The victims were children to whom the applicant gained access through personal and family relationships, including the children of friends, relatives, and a woman he later married.

Conlon DCJ in the District Court sentenced the applicant in two tranches. In February 2012, his Honour imposed an effective sentence of 10 years with a non-parole period of 7 years and 3 months for the first 12 offences. In November 2012, he imposed a further effective sentence of 14 years with a non-parole period of 10 years for the remaining eight offences, fully accumulated on the expiry of the first non-parole period.

The combined effect was a total sentence of 21 years and 3 months with an effective non-parole period of 17 years and 3 months. The applicant sought leave to appeal, arguing the overall sentence and non-parole period were unreasonable or plainly unjust.

  • Whether the full accumulation of the second effective sentence on the first non-parole period was appropriate without stated reasons.
  • Whether the effective non-parole period of approximately 81% of the total sentence was manifestly excessive.
  • Whether Conlon DCJ gave adequate effect to the more lenient sentencing practices that prevailed at the time of the offending, particularly regarding non-parole periods and accumulation.

Decision

The Court of Criminal Appeal accepted that the sentencing law and practices of the 1970s and early 1980s differed materially from those applying at the time of sentencing. Prior to the High Court's decision in Pearce v The Queen (1998), courts took a "more lax" approach to accumulation and concurrence. Around 1982, non-parole periods were commonly set at between one-third and one-half of the total sentence. The applicant was entitled to have those historical practices taken into account, although only limited material about them had been placed before the sentencing judge.

RS Hulme AJ, with whom the other judges agreed, found that Conlon DCJ gave no reasons for fully accumulating the second sentence on the first non-parole period, and no reasons for the resulting 81% ratio between the effective non-parole period and the total sentence. That ratio was sufficiently high to call for some reduction, particularly in light of historical practices.

The Court declined to apply a mechanical reduction to one-third or one-half of the total sentence, given the scale and seriousness of the applicant's offending across 12 victims. The Court also noted the long delay between the offending and prosecution, some of it attributable to reports being made to authorities as early as 1979 without prosecution following. Balancing the gravity of the criminality against the entitlement to the historical sentencing regime, the Court reduced the effective non-parole period from 17 years and 3 months to 15 years. The Court held that the accumulation of sentences constituted special circumstances justifying the resulting proportion between the non-parole period and the total sentence, as did the applicant's age, health issues, and the fact that this was his first period of custody.

Orders Made

• Sentence the Applicant to a non-parole period of 2 years commencing on 13 April 2024 together with an additional term of 6 years commencing on 13 April 2026
• Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 13 April 2026

Key Takeaways

  • An offender sentenced for offences committed in the 1970s and early 1980s is entitled to have the more lenient sentencing practices of that era taken into account, including the then-common approach of setting non-parole periods at between one-third and one-half of the total sentence.
  • Prior to Pearce v The Queen (1998) 194 CLR 610, courts applied a "more lax" approach to accumulation and concurrence; the Court of Criminal Appeal reaffirmed that this historical context is a relevant sentencing consideration.
  • A sentencing judge who fully accumulates a later sentence on an earlier non-parole period, producing an unusually high non-parole-to-head-sentence ratio, should provide reasons for that approach; the absence of such reasons was a factor supporting appellate intervention here.
  • The accumulation of multiple sentences across multiple proceedings can itself constitute "special circumstances" justifying a non-parole period that represents a lower proportion of the total sentence than would otherwise be imposed.
  • Reduction of a non-parole period to reflect historical sentencing practice is not automatic or mechanical; the scale and gravity of the offending are weighty countervailing considerations, and the Court declined to reduce the non-parole period to one-third or one-half of the total sentence in this case.

Legislation and Cases Referenced

Cases:
- AJB v R [2007] NSWCCA 51
- Gore v R [2010] NSWCCA 330
- Magnuson v R [2013] NSWCCA 50
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Power v The Queen (1974) 131 CLR 623
- PWB v R [2011] NSWCCA 84
- R v Clinch (1994) 72 A Crim R 301
- R v MAK (2006) 167 A Crim R 15; [2006] NSWCCA 381
- R v MJN [2002] NSWCCA 129; 54 NSWLR 368
- Rosenstrauss v R [2012] NSWCCA 25
- RWB v R [2008] NSWCCA 93; 184 A Crim R 453