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21
Court of Criminal Appeal 23 August 2017

GP v Regina

[2017] NSWCCA 200

Sexual offences
CRIMINAL APPEAL SERIOUS CHILD SEXUAL ASSAULT OFFENCES SPECIAL CIRCUMSTANCES WHERE SENTENCE ACCUMULATED ON PRE EXISTENT SENTENCES WHERE RESULTANT NON

Citation: GP v Regina [2017] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 23 August 2017
Judges: Macfarlan JA, Button J, Hamill J (all agreeing)

Background

The applicant (whose name is suppressed) was convicted by jury of three child sexual assault offences committed in 2004 and 2005 against a child aged seven or eight. The offences included two counts of committing an act of indecency on a child under ten and one count of sexual intercourse with a child under ten.

In April 2016, Judge Norton SC in the District Court at Parramatta imposed an aggregate sentence of 10 years with a non-parole period of 7.5 years for those offences. That sentence was partially accumulated on a separate sentence imposed by Judge Payne in February 2016, which addressed five counts of child sex offending against a different victim between 1985 and 1994. Judge Payne's sentence totalled 8 years with a non-parole period of 5 years, and her Honour had expressly found special circumstances.

The combined effect of the two sentences was a total custodial term of 13 years and 6 months with a combined non-parole period of 11 years, representing approximately 81.5% of the total sentence. The applicant did not challenge the total sentence of 10 years or the individual indicative sentences imposed by Judge Norton. The sole challenge was to the non-parole period and the failure to find special circumstances.

  • Whether Judge Norton was required to find "special circumstances" under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to account for the effect of accumulation on the ratio between the non-parole period and the total sentence.
  • Whether the impact of the accumulation on that ratio was inadvertent rather than a conscious sentencing choice.
  • Whether the resulting combined non-parole period of approximately 81.5% of the total sentence was disproportionate and warranted appellate intervention and resentencing.

Decision

Hamill J (with whom Macfarlan JA and Button J agreed) identified the central question as whether Judge Norton had consciously adverted to the effect of accumulation on the proportion between the non-parole period and the total sentence, or whether that effect was inadvertent. On the material before the Court, his Honour was satisfied the impact was inadvertent. This constituted an error warranting resentencing.

Section 44 of the Crimes (Sentencing Procedure) Act requires a court to impose a non-parole period of at least 75% of the total sentence unless it finds "special circumstances" justifying a departure. The default ratio reflects a legislated balance between punishment and the rehabilitative purposes of supervised parole. Where sentences are accumulated, the mechanical effect of that accumulation can push the combined ratio well above 75% unless the sentencing court takes deliberate steps to address it by finding special circumstances.

Here, the accumulation had reduced the applicant's parole-eligible period from 3 years to 2.5 years and produced a combined non-parole ratio of around 81.5%. Hamill J found that special circumstances existed, arising both from the accumulation itself and from matters previously identified by Judge Payne, including the applicant's need for an extended period of supervised reintegration into the community.

In resentencing, Hamill J aimed for a total combined non-parole period of approximately 70% of the total combined sentence. That proportion was deliberately set between the ratio applied by Judge Payne (62.5%) and the statutory default (75%), reflecting the seriousness of the offending while acknowledging the special circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Aggregate sentence imposed by Judge Norton SC quashed.
  • In lieu thereof, the applicant sentenced to an aggregate non-parole period of six years commencing 1 December 2018 and expiring 30 November 2024, with a balance of term of four years commencing 1 December 2024 and expiring 30 November 2028.

Key Takeaways

  • Where sentences are accumulated, the mechanical effect on the combined non-parole ratio can itself constitute special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), requiring the sentencing court to address it expressly.
  • A combined non-parole period of approximately 81.5% of the total sentence was found to be disproportionate and reflected an error in the sentencing process, specifically the failure to advert to the effect of accumulation on the ratio.
  • Inadvertence is a relevant consideration: the Court of Criminal Appeal intervened not because the individual sentences were wrong, but because the sentencing judge had not consciously turned her mind to the distorting effect of the accumulation on the overall non-parole proportion.
  • In resentencing, the Court calibrated the combined non-parole ratio at approximately 70%, positioning it between the ratio previously applied in the related sentence and the 75% statutory default, to reflect both the gravity of the offending and the legitimate purposes of parole supervision.
  • Under section 44, the statutory ratio of 75% operates as a floor rather than a target: where special circumstances exist, a lower ratio is not only permitted but may be required to ensure the non-parole period serves its rehabilitative and supervisory purposes.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A(2)(b)
- Sentencing Act 1989 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McKittrick v R [2014] NSWCCA 128
- R v Bolamatu [2002] NSWCCA
- R v Brindley (1993) 66 A Crim R 204
- R v Close (1992) 31 NSWLR 743
- R v GDR (1994) 35 NSWLR 376
- R v Gill [2002] NSWCCA 93
- R v Simpson (1992) 61 A Crim R 58
- Stoeski v R [2014] NSWCCA 161
- Tuivaga v R [2015] NSWCCA 145