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Court of Criminal Appeal 30 September 2016

Turner v R

[2016] NSWCCA 208

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCE AVAILABILITY OF LOCAL COURT SENTENCE PROTECTIVE CUSTODY ACCUMULATION OF SENTENCES

Citation: Turner v R [2016] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 30 September 2016
Judge(s): Leeming JA, McCallum J, R S Hulme AJ (judgment delivered by R S Hulme AJ)

Background

The appellant was an Aboriginal man born in 1982 with a troubled background involving severe childhood trauma, exposure to domestic violence, sexual abuse, homelessness in his late teens, and a diagnosis of schizophrenia from age 19. He had a history of substance abuse and ongoing mental health difficulties, including periods where he was unable to access or comply with medication outside of custody.

Two separate sets of sentences were under challenge. The first arose from a 2009 altercation at a TAFE college, in which the appellant was convicted of assault occasioning actual bodily harm and intentional property damage. The second arose from separate proceedings involving offences of aggravated sexual intercourse and attempted aggravated sexual intercourse, for which he was tried and sentenced by a different judge.

Both sets of sentences had been imposed in the District Court in 2013. The appeals were filed after extensions of time granted by the Registrar, and the Court confirmed both were within time.

  • Whether the sentencing judge in the 2009 proceedings erred by failing to consider that the assault charge could have been dealt with in the Local Court, and to treat the lower Local Court maximum as a relevant sentencing constraint.
  • Whether the individual sentences and effective total sentence in the 2009 proceedings were manifestly excessive.
  • Whether the sentences imposed in the 2011 proceedings (the sexual intercourse offences) were manifestly excessive, having regard to the appellant's personal circumstances, the need to serve sentences in protective custody, and the principle of totality.
  • How accumulation of the two sets of sentences should be structured to achieve an outcome consistent with totality.

Decision

On the 2009 proceedings, R S Hulme AJ accepted that the sentencing judge erred by not considering whether the assault charge was one that could have been dealt with summarily in the Local Court. Where an offence is capable of being dealt with in the Local Court, the lower maximum penalty available there is a relevant benchmark, even if the matter is ultimately dealt with in a superior court. The Court reduced the non-parole period for that assault conviction from approximately 22 months to 9 months (with a 3-month further term), commencing on the same date. Leave to appeal the property damage sentence was refused.

On the 2011 proceedings, the Court found the sentences for the sexual intercourse offences were manifestly excessive when the appellant's significant personal disadvantage was properly weighed. Relevant factors included his profoundly disturbed upbringing, his mental illness, his need to serve his sentence in protective custody (which substantially increased the hardship of imprisonment), and evidence of genuine rehabilitative efforts. The Court noted that protective custody, where an offender is segregated from the general prison population, is a recognised mitigating factor that must be given weight.

Applying the totality principle, R S Hulme AJ restructured the accumulation so that the earliest of the 2011 sentences commenced four months before the non-parole period of the 2009 sentence expired. This produced an effective total non-parole period of 6 years and 2 months and a total sentence three years longer. The Court resentenced the appellant to concurrent terms of 8 years (with 5-year non-parole periods) for the sexual intercourse offences, and a fixed term of 4 years for the attempted intercourse offence.

Orders Made

Proceedings 2009/00058502:
- Leave to appeal granted in respect of the assault occasioning actual bodily harm sentence; appeal allowed; sentence quashed.
- Resentenced to a non-parole period of 9 months commencing 17 April 2011, with a further term of 3 months.
- Leave to appeal refused in respect of the intentional property damage sentence.

Proceedings 2011/00142641:
- Leave to appeal granted in respect of the sentences for attempted aggravated sexual intercourse and aggravated sexual intercourse; appeals allowed; sentences quashed.
- For attempted aggravated sexual intercourse: fixed term of 4 years commencing 17 September 2011.
- For each offence of aggravated sexual intercourse: non-parole period of 5 years commencing 17 June 2012, with a further term of 3 years commencing 17 June 2017.
- Leave to appeal refused in respect of the assault occasioning actual bodily harm sentence.
- Parole eligibility date recorded as 17 June 2017.

Key Takeaways

  • Where an assault charge under s 59 of the Crimes Act 1900 (NSW) could have been dealt with summarily in the Local Court, a sentencing court in the District Court must consider that lower maximum penalty as a relevant reference point, even though the matter is before a court with a higher jurisdictional ceiling.
  • Protective custody arrangements, where an offender is isolated from the general prison population and experiences substantially harsher conditions, constitute a recognised mitigating factor in sentencing that must be accorded appropriate weight.
  • A disadvantaged upbringing, including childhood trauma, exposure to violence, homelessness, and mental illness, are personal circumstances that sentencing courts must genuinely engage with rather than treat as peripheral matters.
  • The Court of Criminal Appeal applied the totality principle to restructure accumulated sentences so that the overall effective sentence reflected the criminality as a whole, rather than producing a crushing or disproportionate outcome.
  • In dismissing the appeal against the property damage and assault sentences from the 2011 proceedings, the Court confirmed that not every ground of appeal within a multi-offence sentencing appeal will succeed, even where other sentences are reduced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61J, 61P

Cases:
- Baines v R [2016] NSWCCA 132
- Cowan v R [2015] NSWCCA 118
- Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549
- Ingrey v R [2016] NSWCCA 31
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- NM v R [2012] NSWCCA 215
- R v Burchell (1987) 34 A Crim R 148
- R v Couch-Clarke [2010] NSWCCA 288
- R v Crombie [1999] NSWCCA 297
- R v Totten [2003] NSWCCA 207
- Regina v El Masri [2005] NSWCCA 167
- Regina v Palmer [2005] NSWCCA 349
- SM v R [2016] NSWCCA 171
- Smith v R [2007] NSWCCA 138
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460