AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 9 July 2015

R v Cannon

[2015] NSWDC 125

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULT OFFENCE COMMITTED IN 1986 RELEVANT SENTENCING PRINCIPLES LEGISLATIVE HISTORY

Citation: R v Cannon [2015] NSWDC 125
Court: District Court of New South Wales
Date: 9 July 2015
Judge(s): Payne DCJ

Background

The offender pleaded guilty to a single count of sexual assault under s 61D(1) of the Crimes Act 1900 (NSW), an offence committed on 7 November 1986 in Wagga Wagga. The victim, who was under 16 years of age at the time, was approached in the early hours of the morning, threatened with a knife, and raped. The offender was not identified until a DNA database match was made in 2008, and he was not arrested until February 2014.

At the time of sentencing, the offender was already serving a lengthy custodial sentence imposed for separate offending. The new sentence therefore had to be structured in a way that gave proper consideration to the totality principle and the interaction with his existing sentence.

The sentencing exercise was described by Payne DCJ as "very complex," principally because the court was required to apply sentencing principles and legislation as they stood in 1986, some 29 years before the sentence was imposed.

  • Which sentencing legislation applied to an offence committed in 1986 but prosecuted in 2015?
  • Whether the standard non-parole period regime and the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 applied, given the date of the offence.
  • Whether a 25 percent discount for a guilty plea was available and appropriate, even though such quantified discounts were not the practice in 1986.
  • Whether remorse could be established as a mitigating factor where the offender claimed no memory of the offence.
  • How the totality principle applied given the offender's existing lengthy sentence, including the degree of concurrence or accumulation of the new sentence.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence.

Decision

Applicable legislation. The court confirmed that sentencing for an offence committed in 1986 required application of the Probation and Parole Act 1983 (NSW) as amended, specifically including the Probation and Parole (Remissions) Amendment Act 1986, which inserted s 21A concerning remissions and non-parole periods. The Probation and Parole (Serious Offences) Amendment Act 1987 did not apply because it did not commence until 1 January 1988, after the offence date. The maximum penalty applicable was 10 years imprisonment, half the current maximum of 20 years.

Sentencing purposes and the plea discount. Although the standard non-parole period regime did not apply to the substantive sentencing framework (given the date of the offence), ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 did apply because those provisions expressly extend to offences "whenever committed," subject to exceptions not relevant here. A 25 percent discount for the utilitarian value of the guilty plea was granted. Both the Crown and defence joined in submitting this was appropriate, and the approach was consistent with the Court of Criminal Appeal's reasoning in MPB v R.

Remorse and mitigating factors. The court found that, despite the offender's stated inability to remember committing the offence, his guilty plea, his expressed apology, and his acknowledgment of the harm caused to the victim were sufficient to satisfy the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act on the balance of probabilities. The court drew on the offender's sworn evidence and the pre-sentence report in reaching that conclusion.

Totality and special circumstances. The court found special circumstances on two bases, warranting a departure from the standard ratio between non-parole period and head sentence. The new sentence was structured with partial accumulation on the existing sentence, producing only a modest extension to the total non-parole period. The court noted that the resulting total effective non-parole period represented 87.7 percent of the total effective head sentence, an increase of just one percent on the pre-existing ratio.

Orders Made

  • The offender was convicted of sexual assault contrary to s 61D(1) of the Crimes Act 1900 (NSW).
  • A total term of imprisonment of 7 years was imposed, commencing 29 December 2015 and expiring 28 December 2022.
  • A non-parole period of 3 years was imposed, commencing 29 December 2015 and expiring 28 December 2018.
  • The total effective sentence became 32 years, 7 months and 6 days, with a total effective non-parole period of 28 years, 7 months and 6 days.
  • A period on parole of four years remained available, subject to the offender's release at the end of the non-parole period.
  • The court recommended in the strongest terms that the offender receive treatment for sexual deviance as soon as possible.

Key Takeaways

  • Sentencing for historical sexual offences requires a court to identify and apply the legislative framework in force at the time of the offence, which may differ substantially from the current regime, including as to maximum penalties and parole structures.
  • Under cl 45(2) of Pt 7 of Sch 2 to the Crimes (Sentencing Procedure) Act 1999, ss 3A and 21A of that Act apply to the determination of a sentence for any offence whenever committed, unless a conviction or plea was entered before those provisions commenced.
  • A 25 percent guilty plea discount may be available and expressly quantified even where the offence predates the R v Thomson and Houlton guidelines, provided both parties concur and the approach is consistent with Court of Criminal Appeal authority such as MPB v R.
  • Remorse as a mitigating factor under s 21A(3)(i) can be established where an offender pleads guilty and acknowledges harm to the victim, even where the offender claims no personal recollection of the offending conduct.
  • Where an offender is already serving a lengthy sentence, the totality principle requires careful calibration of concurrence and accumulation so that the combined sentence reflects the overall criminality without resulting in a crushing or disproportionate outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61D(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)
- Probation and Parole (Remissions) Amendment Act 1986 (NSW)
- Probation and Parole (Serious Offences) Amendment Act 1987 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51
- Betts v R [2015] NSWCCA 39
- CPW v R [2009] NSWCCA 105
- Ewen v R [2015] NSWCCA 117
- LJS v R [2015] NSWCCA 47
- Magnuson v R [2013] NSWCCA 50
- MD v R [2015] NSWCCA 37
- MPB v R [2013] NSWCCA 213
- Pearce v The Queen [1998] HCA 57
- Power v The Queen [1974] HCA 26
- R v Close (1992) 65 A Crim R 55
- R v MAK; R v MSK [2006] NSWCCA 381
- R v MJR [2002] NSWCCA 129
- R v Moffitt (1990) 49 A Crim R 20
- R v Simpson [2001] NSWCCA 534
- R v Swan [2005] NSWCCA 252
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Wakefield [