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10
Court of Criminal Appeal 21 June 2017

DG v R

[2017] NSWCCA 139

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 11 YEARS NO ERROR IN INDICATIVE SENTENCES APPEAL ALLOWED NEED TO RESENTENCE.

Citation: DG v R [2017] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 21 June 2017
Judges: Hoeben CJ at CL; Garling J; Bellew J

Background

The applicant was the stepfather of the victim, who was born in 1999. He pleaded guilty to three counts of aggravated indecent assault and one count of aggravated sexual assault, with two further offences of aggravated sexual intercourse placed on a Form 1 (meaning they were taken into account in sentencing without separate penalties being imposed). The offending occurred over approximately four and a half years, beginning when the victim was aged eleven.

The District Court sentenced the applicant to an aggregate term of fifteen years' imprisonment with a non-parole period of eleven years. The sentencing judge made a finding of special circumstances, a finding that can justify adjusting the ratio between the non-parole period and the balance of term beyond the statutory default, typically to allow for a longer period of supervised release.

The applicant appealed to the Court of Criminal Appeal, arguing that the aggregate sentence failed to give proper effect to that special circumstances finding, and that an error in the indicative sentence for the aggravated sexual assault count had infected the overall sentence.

  • Whether the sentencing judge gave adequate effect to the finding of special circumstances when structuring the aggregate sentence.
  • Whether an error in the indicative sentence for the aggravated sexual assault offence infected the aggregate sentence.

Decision

On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had made a finding of special circumstances but had not adequately reflected that finding in the aggregate sentence. Under the standard sentencing formula, a non-parole period ordinarily represents two-thirds of the head sentence. Here, the non-parole period of eleven years against a total term of fifteen years equated to approximately 73 percent of the head sentence, which was above the statutory default rather than below it. The finding of special circumstances had therefore not been given practical effect, and this constituted error.

On the second ground, the applicant argued that the indicative sentence of fourteen years with a ten-year non-parole period for the aggravated sexual assault count was excessive, suggesting the starting point was too high even before the Form 1 offences were taken into account. The Court rejected this argument. The two Form 1 offences, which involved penetrative sexual intercourse with a child and carried substantial maximum penalties, were required to significantly increase the sentence for the s 61J count. Once their effect was factored in, the indicative sentence was explicable and disclosed no error.

The Court proceeded to resentence. It left the indicative sentences undisturbed but restructured the aggregate sentence to give proper effect to the special circumstances finding.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Aggregate sentence imposed by Buscombe DCJ on 24 March 2016 quashed.
  • In lieu thereof, the applicant sentenced to imprisonment with a non-parole period of 10 years commencing 2 April 2015 and expiring 1 April 2025, with a balance of term of 5 years expiring 1 April 2030.

Key Takeaways

  • A finding of special circumstances must be given concrete effect in the structure of an aggregate sentence. Where the resulting ratio between the non-parole period and the head sentence exceeds the statutory default rather than falling below it, the finding has not been meaningfully applied.
  • Indicative sentences under an aggregate sentencing regime may lawfully reflect the upward pressure of Form 1 offences. A higher-than-expected indicative sentence for a principal offence does not disclose error where serious Form 1 matters account for the difference.
  • The Court of Criminal Appeal confirmed that, on resentence, it need not revisit unchallenged factual findings or assessments of objective seriousness. The resentencing exercise proceeds on the basis of those accepted findings.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence must still reflect special circumstances findings even though individual indicative sentences are not individually appealed or disturbed.
  • In dismissing the second ground of appeal, the Court reinforced that Form 1 offences carrying substantial maximum penalties must significantly increase the sentence for the offence to which they are attached.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 44, 53A

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- CM v R [2013] NSWCCA 341
- Fayad v R [2017] NSWCCA 81
- MD v R [2015] NSWCCA 37
- R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
- R v DG (District Court (NSW), Buscombe DCJ, 24 March 2016, unrep)
- R v Nykolyn [2012] NSWCCA 219
- Sabongi v R [2015] NSWCCA 25