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Court of Criminal Appeal 14 April 2016

Sorensen v R

[2016] NSWCCA 54

Assault & violence
CRIMINAL LAW SENTENCE APPEAL CONVICTION APPEAL

Citation: Sorensen v R [2016] NSWCCA 54
Court: Court of Criminal Appeal, New South Wales
Date: 14 April 2016
Judge(s): Ward JA (principal judgment); Adams J and Bellew J (agreeing)

Background

The appellant was convicted by a jury in the District Court at Parramatta of four offences arising from a violent assault on a woman (referred to as Ms L). The offending occurred after Ms L was accused of stealing jewellery belonging to the mother of a co-accused. Over the course of several hours from late at night until early the following morning, the appellant and his co-accused detained, assaulted, and humiliated Ms L at a residential address before she escaped at a service station.

The four counts on which the appellant was convicted were: being armed with a weapon (a baseball bat and knife) with intent to commit an indictable offence; indecent assault in company; assault occasioning actual bodily harm in company; and detaining a person with intent to obtain an advantage (specifically, gratification through punishment and humiliation), occasioning actual bodily harm. The maximum penalty for the detention offence under s 86(3) of the Crimes Act 1900 (NSW) was 25 years' imprisonment.

At first instance, the sentencing judge imposed an aggregate sentence of 12 years with a non-parole period of 8 years. The appellant challenged both the conviction and the sentence on appeal.

  • Whether the jury's verdict was unreasonable or could not be supported by the evidence (conviction appeal)
  • Whether the sentencing judge erred by treating the "quasi vigilante" or "vigilante" nature of the offending as an aggravating factor, given that punishment and humiliation of the victim formed part of the definition of the offence charged under s 86(3)
  • Whether the aggregate sentence was manifestly excessive

Decision

Conviction appeal: The Court applied the test from M v The Queen (1994) 181 CLR 487 as confirmed in SKA v The Queen (2011) 243 CLR 400, conducting an independent assessment of the sufficiency and quality of the evidence. The Court found it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on all counts. The conviction appeal was dismissed.

Vigilante aggravating factor (grounds 2 and 2A): The more substantial ground was whether the sentencing judge double-counted. The offence under s 86(3) required proof that the detention was with intent to obtain an advantage by punishing and humiliating the victim. By separately identifying the "vigilante" or punitive character of the offending as an aggravating feature, the sentencing judge gave additional weight to conduct that was already an element of the offence itself. The Court of Criminal Appeal accepted this was a sentencing error. A sentencing court must not treat as an aggravating circumstance something that is inherent in, or constitutive of, the offence for which the offender is being sentenced.

Manifest excess: Having found error on grounds 2 and 2A, the Court proceeded to resentence. Ward JA also expressed scepticism about the primary judge's finding of special circumstances based on the prospect of rehabilitation, noting the evidence for that finding was thin. However, because the Crown did not challenge that finding on appeal, the Court retained a slightly reduced non-parole period. Applying a high degree of concurrency, consistent with the approach taken below, the Court reduced the aggregate sentence from 12 years to 10 years, with a non-parole period of 7 years.

Orders Made

  • Extension of time to 31 July 2015 to file the notice of appeal against conviction granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentences imposed by the primary judge quashed
  • The appellant re-sentenced to imprisonment for 10 years commencing 24 May 2013 and expiring 23 May 2023, with a non-parole period of 7 years expiring 23 May 2020
  • Earliest eligible parole date: 24 May 2020

Key Takeaways

  • A sentencing court errs when it treats as an aggravating factor conduct that is already a definitional element of the offence being sentenced. Where the intent to punish and humiliate is built into the offence under s 86(3) of the Crimes Act, characterising the same conduct as a "vigilante" aggravating feature constitutes double-counting.
  • The Court of Criminal Appeal confirmed the orthodox test for an unreasonable verdict: the appellate court must independently assess the sufficiency and quality of evidence, while respecting the jury's primary fact-finding role, to determine whether a guilty verdict was open beyond reasonable doubt.
  • Finding special circumstances to justify a longer parole period requires more than a bare possibility of rehabilitation. As the Court noted with reference to R v Tuuta [2014] NSWCCA 40, there must be meaningful positive signs that rehabilitation is likely, not merely possible.
  • In resentencing, the Court applied a high degree of concurrency in the aggregate sentence, reflecting the principle of totality where multiple offences arise from a single criminal episode.
  • No error was established in respect of the conviction itself. The evidence, including Ms L's testimony and the surrounding circumstances, was sufficient to support all four jury verdicts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 61M(1), 86(3), 95(1), 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187
- Hanze v R [2006] NSWCCA 36
- Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Morrison v R [2014] NSWCCA 199
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499
- R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
- R v Swan [2006] NSWCCA 47
- R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399
- RLS v R [2012] NSWCCA 236
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400