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9
Court of Criminal Appeal 30 November 2016

GS v R

[2016] NSWCCA 266

Sexual offences
CRIMINAL LAW SENTENCING APPEAL SEVERITY OF SENTENCE CRIMES ACT 1900 (NSW) S 61M(2) WHERE VICTIMS AGED 6 AND 9 YEARS

Citation: GS v R [2016] NSWCCA 266
Court: Court of Criminal Appeal, NSW
Date: 30 November 2016
Judges: Gleeson JA at [1]; Fagan J at [96]; N Adams J at [103]

Background

The applicant pleaded guilty in the District Court in December 2014 to three counts of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW), with two further similar offences taken into account on a Form 1. The offences, committed in 1996, involved two young girls aged six and nine. The applicant had been an acquaintance of each victim's parents and was teaching the girls about horses and riding. The conduct included repeated touching of the victims' genital areas, threats designed to prevent disclosure, and physical restraint.

At the time of the 2014 sentencing, the applicant was already serving a six-year sentence (the 2011 sentence) imposed by Williams DCJ for an unrelated aggravated sexual assault on an 11-year-old girl committed in 2004. The non-parole period of that earlier sentence expired on 7 March 2014. The 2014 sentences imposed by Culver DCJ were made wholly cumulative on the non-parole period of the 2011 sentence, producing a total effective sentence of eight years with an effective non-parole period of five years.

The applicant, who was of advanced age and in poor health, sought leave to appeal out of time (by approximately four months) on the ground that the sentencing judge had failed to properly apply the totality principle, or alternatively that the resulting sentences were manifestly excessive.

  • Whether the sentencing judge failed to consider or properly apply the totality principle when imposing the 2014 sentences wholly cumulative on the non-parole period of the existing 2011 sentence
  • Whether the individual sentences and the total term of the 2014 sentences were manifestly excessive, having regard to the objective gravity of the offending and the overall criminality
  • Whether the applicant's advanced age and serious ill-health, including a short life expectancy, warranted a reduction in sentence
  • Whether leave to appeal out of time should be granted

Decision

The Court granted the extension of time to appeal. On the primary question, the Court found that Culver DCJ had identified the correct sentencing principles, including the totality principle, but considered whether her Honour had nevertheless fallen into error in applying them given the structure of the accumulation imposed and the applicant's existing sentence.

Gleeson JA, writing the leading judgment, concluded that the objective gravity of the applicant's total criminality was serious. The offending involved two separate victims of very young ages, a significant abuse of a position of trust and authority, psychological and physical coercion, threats to prevent disclosure, and conduct that was neither isolated nor opportunistic. These features justified substantial and substantially cumulative sentences. The Court found no error in the overall approach taken by Culver DCJ to the structure and extent of accumulation, nor in the individual sentences.

On the question of ill-health and age, the Court acknowledged the applicant's multiple health conditions but noted that no updated medical evidence as to life expectancy had been placed before Culver DCJ at the time of the 2014 sentencing, beyond what had already been before Williams DCJ nearly four years earlier. The Court observed that, consistent with decisions such as Anastasiou v R, the appropriate mechanism for addressing any dramatic deterioration in health was an application to the State Parole Authority for early release on compassionate grounds under s 160 of the Crimes (Administration of Sentences) Act 1999, rather than appellate intervention. The application for leave to appeal was refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The totality principle requires a sentencing court to consider the overall criminality reflected in the combined effect of multiple sentences, including any existing sentence being served; however, identifying the correct principle in reasons does not itself constitute error if the resulting sentence reflects a proper exercise of the sentencing discretion.
  • Where an applicant's ill-health and short life expectancy are raised at sentencing, the absence of current and updated medical evidence limits the weight that can be given to those circumstances; evidence that was before an earlier sentencing court several years prior does not necessarily carry equivalent weight on a later sentencing occasion.
  • Under s 160 of the Crimes (Administration of Sentences) Act 1999, a prisoner who experiences a significant deterioration in health after sentence may apply to the State Parole Authority for early release on compassionate grounds, and the Court of Criminal Appeal has consistently noted this avenue as the appropriate remedy rather than appellate reduction of sentence.
  • Aggravating features, including a vast age disparity between offender and victims, abuse of a position of trust, repeated conduct across separate victims, threats designed to prevent disclosure, and physical restraint, are capable of supporting substantial custodial sentences even for offences carrying a maximum of 10 years where no standard non-parole period applies.
  • In refusing the appeal, the Court confirmed that the accumulation of new sentences wholly upon the non-parole period of an existing sentence is not inherently erroneous; the question is always whether the total effective sentence reflects the overall gravity of the criminality without being unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E, 61J, 61M
- Crimes (Administration of Sentences) Act 1999 (NSW), s 160
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 44, 45

Cases
- Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Collier v R [2012] NSWCCA 213
- Convery v R [2014] NSWCCA 93
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Gulyas v State of Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- LG v R [2012] NSWCCA 249
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Nelson v R [2016] NSWCCA 130
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v CMB [2014] NSWCCA 5
- R v Crowley and Garner (1991) 55 A Crim R 201
- R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep)
- R v Gavel [2014] NSWCCA 56
- R v Gommeson [2014] NSWCCA 159
- R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
- R v Holyoak (1995) 82 A Crim R 502