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Court of Criminal Appeal 24 November 2016

PB v R

[2016] NSWCCA 258

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE FAILURE TO FIX NON PAROLE PERIOD FOR STANDARD NON PAROLE OFFENCE RESENTENCE TO OCCUR

Citation: PB v R [2016] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 24 November 2016
Judges: Rothman J, Davies J, Garling J

Background

The applicant, whose identity is suppressed to protect the victims, pleaded guilty in the District Court to five counts of child sexual offences against his stepdaughter. The offending involved aggravated indecent assault and multiple counts of sexual intercourse with a child aged between 14 and 16 years. A number of further offences involving a second, younger victim were listed on Form 1 schedules (additional offences taken into account at sentencing without separate conviction) attached to several counts.

The sentencing judge imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of 8 years. The applicant received approximately a 20% discount for his guilty pleas. He then sought leave to appeal on the grounds that the sentencing judge had erred in his approach to the indicative sentences and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge failed to assess the objective seriousness of Counts 2 to 5 when setting indicative sentences
  • Whether the sentencing judge adequately explained how the Form 1 offences attached to Counts 2, 3, and 5 were taken into account
  • Whether the sentencing judge erred by failing to fix an indicative non-parole period for Count 1, which carries a standard non-parole period
  • Whether the aggregate sentence of 14 years was manifestly excessive

Decision

The Court found error on Ground 1. The sentencing judge had not set out any assessment of the objective seriousness of the conduct underlying Counts 2 to 5, and had not explained how the Form 1 offences were factored into the indicative sentences for those counts. Without such an exposition, it was impossible to determine whether the standard non-parole period had been properly treated as a statutory guidepost, or whether the serious Form 1 offences had been given appropriate weight.

A further error was identified during oral argument: the indicative sentence for Count 1 did not include a non-parole period, despite that offence carrying a prescribed standard non-parole period. Rothman J also noted the sentencing judge had not expressly addressed the totality principle, given that the indicative sentences totalled 19.5 years against an aggregate of 14 years, leaving approximately 5.5 years of concurrency unexplained.

The Court was careful to note that these errors did not arise from mere infelicities of expression or the absence of formulaic references to sentencing principles. Rather, the particular complexity of this matter required the sentencing judge to identify and address those matters expressly.

On Ground 2, the Court declined to make a formal finding given that error on Ground 1 already necessitated resentencing. However, all three judges expressed the view that the sentence was not manifestly excessive. Davies J and Garling J went further, stating that the sentence was unduly lenient. The Court was nonetheless constrained from imposing a heavier sentence, as it is not open to the Court of Criminal Appeal to resentence an applicant to a more severe term when only the applicant has appealed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Error in a sentencing judgment can be established where the judge fails to explain the assessment of objective seriousness for individual counts and does not address how Form 1 offences influenced those indicative sentences, particularly in a complex multi-count matter.
  • Where a count carries a standard non-parole period, the sentencing judge must fix an indicative non-parole period for that count; omitting this step constitutes identifiable error.
  • The inclusion of offences against a different victim on a Form 1 attached to a count charged in relation to the principal victim is procedurally problematic. The Court of Criminal Appeal has repeatedly noted this approach is illogical, deprives Form 1 offences of appropriate weight, and may result in a more lenient outcome for the offender.
  • Placing an offence carrying a standard non-parole period on a Form 1 attached to a count that does not carry such a period diminishes the significance of the standard non-parole period provisions.
  • In dismissing the appeal, the Court confirmed it cannot resentence an applicant to a lengthier term than originally imposed when only the applicant has sought leave to appeal, even where the court regards the original sentence as unduly lenient.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(2), 61N(1), 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Karel Eedens v R [2009] NSWCCA 254
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Parker v DPP (1992) 28 NSWLR 282
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Phillip Sea (NSW Court of Criminal Appeal, 13 August 1990, unreported)
- R v TWP [2006] NSWCCA 141
- SGJ v R; KU v R [2008] NSWCCA 258
- Shannon v R [2006] NSWCCA 39
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465