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Court of Criminal Appeal 18 March 2016

O’Connell v R

[2016] NSWCCA 43

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL ASSAULTS OF TWO CHILDREN PRODUCTION OF CHILD ABUSE MATERIAL

Citation: O'Connell v R [2016] NSWCCA 43
Court: Court of Criminal Appeal, NSW
Date: 18 March 2016
Judge(s): Hoeben CJ at CL, Adams J, Fullerton J (Fullerton J delivered the leading judgment)

Background

The appellant pleaded guilty in the District Court to multiple charges of aggravated indecent assault on two children, aged 9 and 12, and to using both children for the production of child abuse material and for pornographic purposes. The offences occurred in separate incidents between 2010 and 2013. The sentencing judge imposed five separate sentences, then partially accumulated them to arrive at a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years, 11 months and 19 days.

In sentencing, the judge made a finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), adjusting the ratio between the non-parole period and the balance of term in each individual sentence from the statutory 75 per cent to 66 per cent. The basis for this was the appellant's willingness to engage in treatment and the sentencing judge's view that this would facilitate rehabilitation. However, once the individual sentences were accumulated, the resulting total effective non-parole period represented approximately 72 to 73 per cent of the overall sentence, not 66 per cent.

The appellant sought leave to appeal on the sole ground that the sentencing judge failed to give practical effect to the special circumstances finding at the level of the total effective sentence.

  • Whether the sentencing judge erred by failing to give practical effect to his own finding of special circumstances when constructing the total effective sentence.
  • Whether, on resentence, the Court of Criminal Appeal would itself make a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether, even if special circumstances were established, any further reduction of the non-parole period ratio in the total effective sentence was warranted in the circumstances.

Decision

The Court accepted that there was at least an apparent inconsistency: the sentencing judge had reduced the statutory ratio in each individual sentence by reference to special circumstances, but the effect of partial accumulation produced a total effective ratio of 72 to 73 per cent, not 66 per cent. This raised a question about whether the finding of special circumstances had been given practical effect at the aggregate level.

However, Fullerton J declined to find that special circumstances existed at the level of the total effective sentence. The only basis put forward for such a finding was the appellant's continued willingness to seek treatment in the community. Her Honour found no satisfactory explanation for why community-based treatment would better serve rehabilitation than the progress the appellant had already made in custody, and concluded that no extended period of supervision in the community was warranted.

Fullerton J also held that, even if special circumstances could be established, the Court would not have been obliged to adjust the statutory ratio further. The question for a sentencing court is not simply whether special circumstances exist, but whether a longer period of community supervision should be allowed in light of all the circumstances. In this case, the Court was not persuaded it should.

The Crown's submission that no other sentence was warranted at law was accepted. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge who makes a finding of special circumstances in individual sentences must ensure that finding is given practical effect in the total effective sentence; a discrepancy can constitute a sentencing error.
  • The Court of Criminal Appeal confirmed that a finding of special circumstances is not automatically carried through to a total effective sentence merely because it was applied to individual component sentences, particularly where partial accumulation alters the overall ratio.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where special circumstances are found to exist, a sentencing court retains a discretion and is not obliged to alter the statutory ratio; the central question remains whether a longer period of supervision in the community is warranted.
  • An appellant's willingness to engage in treatment did not, on the evidence in this case, constitute special circumstances where the appellant had already made rehabilitation progress in custody and no principled basis was identified for preferring community-based treatment.
  • In dismissing the appeal, the Court applied s 6(3) of the Criminal Appeal Act 1912 (NSW) and concluded that no other sentence than that imposed by the sentencing judge was warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault on a person under 16)
- Crimes Act 1900 (NSW), s 91G(1)(a) (using a child for production of child abuse material)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and the non-parole period ratio)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- CM v R [2013] NSWCCA 341
- Kentwell v R (No 2) [2013] NSWCCA 96