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Court of Criminal Appeal 17 August 2016

WC v R

[2016] NSWCCA 173

Sexual offencesDomestic & family violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE INTERSTATE OFFENDING TOTALITY PRINCIPLE APPEAL

Citation: WC v R [2016] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 17 August 2016
Judges: Hoeben CJ at CL, Campbell J, Natalie Adams J

Background

The applicant pleaded guilty at the earliest opportunity to 12 counts of child sexual assault committed against his natural daughter in New South Wales over a period from 1999 to 2005. A further nine related offences were taken into account on Form 1 schedules. The offending began when the victim was 12 years old and involved an escalating pattern of sexual abuse carried out in the family home and elsewhere.

The applicant had previously been sentenced in Queensland for three counts of incest involving the same victim, arising from offending in 2006. He served his Queensland sentence in full, having twice been refused parole, before being extradited to New South Wales where he pleaded guilty to the NSW charges.

In the District Court, Judge Conlon SC imposed an aggregate sentence of 19 years with a non-parole period of 13 years, backdated to November 2011 to partially account for the Queensland sentence already served. The applicant sought leave to appeal against that sentence on two grounds.

  • Whether the sentencing judge erred by assigning little or no weight to rehabilitation programs undertaken during the applicant's interstate imprisonment in Queensland when applying the totality principle.
  • Whether the sentencing judge erred by rejecting expert evidence that the applicant posed a low risk of reoffending, and whether the reasons given for that rejection were adequate or rationally based.

Decision

On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had erred in the treatment of rehabilitation. The totality principle required the NSW court to have regard to the entirety of the applicant's custodial experience, including programs and conduct during the Queensland sentence. Insufficient weight had been given to rehabilitative efforts made during that interstate imprisonment when assessing the applicant's progress and prospects.

On the second ground, the Court found that the sentencing judge's rejection of the expert risk assessment report lacked adequate reasons, or that the reasons given did not have a rational basis having regard to the material before the court. This constituted an error in the exercise of the sentencing discretion.

Despite those errors, the Court did not consider that a substantially different sentence was warranted. The applicant's case notes from after sentencing continued to demonstrate a lack of empathy for his victim, which the Court took into account on resentencing. The Court maintained the sentencing judge's finding of special circumstances arising from the aggregation of sentences.

The Court resentenced the applicant to an aggregate term with a non-parole period of 11 years and 9 months and an additional term of 5 years and 3 months, both commencing on 9 November 2011. The total effective sentence, taking into account the Queensland period served prior to that commencement date, remained 19 years. The non-parole period was reduced from 13 years to 11 years and 9 months.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentence imposed in the District Court on 16 February 2015 quashed.
  • Applicant resentenced to an aggregate term of imprisonment with a non-parole period of 11 years and 9 months commencing 9 November 2011 and expiring 8 August 2023, with an additional term of 5 years and 3 months commencing 9 August 2023 and expiring 8 November 2028.
  • Earliest date of eligibility for release on parole: 8 August 2023.

Key Takeaways

  • The totality principle in cross-border sentencing requires a NSW court to consider an offender's rehabilitative efforts during interstate imprisonment, not only programs undertaken in NSW custody. Failure to do so may constitute a sentencing error.
  • Where a sentencing judge rejects expert evidence on risk of reoffending, adequate reasons must be provided and those reasons must have a rational basis in the material before the court. A bare rejection without sufficient reasoning is an error.
  • In allowing the appeal, the Court of Criminal Appeal maintained the overall 19-year effective sentence while reducing the non-parole period, reflecting a recalibration of the balance between punishment and rehabilitation rather than a finding that the original total was manifestly excessive.
  • Post-sentence case notes were available to and considered by the Court on resentencing, and the applicant's continued lack of empathy for his victim was treated as a relevant factor weighing against further reduction of the sentence.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances may be made on the basis of aggregation itself, as the sentencing judge had done and the Court of Criminal Appeal confirmed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61M(2), 61O(1), 61O(1A), 66(2), 66C(2), 78A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(d), 22A, 33, 47(2), 53A

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
- R v Ellis (1986) 6 NSWLR 603
- R v MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Pogson [2012] NSWCCA 225; 82 NSWLR 60
- R v Todd [1982] 2 NSWLR 517
- Vartzokas v Zanker (1989) 51 SASR 277; 44 A Crim R 243