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7
Court of Criminal Appeal 6 September 2017

Croxon v R

[2017] NSWCCA 213

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SENTENCE MANIFESTLY EXCESSIVE APPLICANT RE SENTENCED PRACTICE AND PROCEDURE

Citation: Croxon v R [2017] NSWCCA 213
Court: Court of Criminal Appeal, NSW
Date: 6 September 2017
Judges: Hoeben CJ at CL, Davies J, Bellew J (unanimous)

Background

The applicant was a school teacher and careers adviser at a high school in Nowra who pleaded guilty to two counts of sexual offending against a 15-year-old female student. The first count involved an act of indecency committed in the staff room on the last day of the school year in December 2014. The second count involved sexual intercourse without consent in circumstances of aggravation in February 2015, when the applicant removed the student from class under the pretence of careers advising.

At sentencing in the District Court, Acting Judge Delaney imposed indicative sentences of 3 years 6 months for count 1 and 8 years for count 2, with those sentences wholly accumulated to produce an aggregate of 11 years 5 months imprisonment and a non-parole period of 7 years. The applicant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive, particularly because the sentencing judge failed to give proper weight to the totality principle when accumulating the two sentences.

The applicant also asked the sentencing court to take two additional matters into account on a Form 1, one of which was an offence of aggravated sexual intercourse without consent, carrying a maximum penalty of 20 years imprisonment.

  • Whether the sentencing judge erred by wholly accumulating the two sentences without adequate regard to the principle of totality, rendering the aggregate sentence manifestly excessive.
  • Whether the inclusion of a serious sexual offence on a Form 1 (rather than as a separate count) was an appropriate use of that procedural mechanism.

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, finding that the aggregate sentence of 11 years 5 months was manifestly excessive. The Court held that the sentencing judge's complete accumulation of the two sentences failed to give proper weight to the totality principle, which requires a court to step back and assess whether the combined sentence is a just and appropriate reflection of the overall criminality. In re-sentencing, the Court partially accumulated the sentences, reducing the total non-parole period from 7 years to 4 years and 6 months.

In re-sentencing, the Court took into account the applicant's guilty pleas (a 10 per cent discount), expressions of remorse including a written apology to the victim, and favourable prospects of rehabilitation. The Court found no evidentiary basis to make a finding of special circumstances. It also gave weight to the fact that the applicant had suffered two serious assaults in custody, which had placed him on limited association with other inmates and prevented him from undertaking work or study.

Separately, the Court expressed significant concern about the Crown's use of the Form 1 procedure. One of the Form 1 matters was an offence of aggravated sexual intercourse without consent, carrying a maximum penalty of 20 years imprisonment. Bellew J found that including such a serious offence on a Form 1, rather than presenting it as a separate count on the indictment, was an entirely inappropriate use of the statutory procedure and resulted in a distortion of the sentencing exercise. The Court noted this was the second occasion within two months it had needed to express that view, referring to DG v R [2017] NSWCCA 139.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentences set aside.
  • The applicant re-sentenced as follows:
  • Count 1: non-parole period of 2 years from 26 February 2015, expiring 25 February 2017, with an additional term of 8 months expiring 25 October 2017.
  • Count 2: non-parole period of 4 years from 26 August 2015, expiring 25 August 2019, with an additional term of 1 year and 5 months expiring 25 January 2021.
  • Total non-parole period: 4 years and 6 months; additional term: 1 year and 5 months.
  • Eligible for release on parole on 25 August 2019.

Key Takeaways

  • Complete accumulation of multiple sentences without adequate regard to totality can render an aggregate sentence manifestly excessive, even where each individual sentence is otherwise appropriate.
  • The Court of Criminal Appeal confirmed, following DG v R [2017] NSWCCA 139, that placing a serious offence on a Form 1 rather than presenting it as a substantive count on the indictment is an inappropriate distortion of the statutory procedure under ss 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court directed these observations to the Director of Public Prosecutions.
  • Mitigating factors on re-sentence included guilty pleas, genuine remorse, favourable rehabilitation prospects, and adverse custodial conditions arising from serious assaults suffered in prison.
  • Absence of evidence is the threshold for a finding of special circumstances: no such finding was warranted on the facts here despite the nature of the offending and the applicant's circumstances.
  • In dismissing the adequacy of the original non-parole period, the Court re-exercised its sentencing discretion in full, adjusting both the structure and the length of the sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32-33
- Criminal Procedure Act 1986 (NSW), s 43

Cases:
- DG v R [2017] NSWCCA 139
- Cahyadi v R [2007] NSWCCA 1
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Holder (1983) 3 NSWLR 245
- AG v R [2016] NSWCCA 102
- Doe v R [2013] NSWCCA 248
- Ewen v R [2015] NSWCCA 117
- FB v R [2014] NSWCCA 282
- Kertai v R [2013] NSWCCA 252
- MLP v R [2014] NSWCCA 183
- R v AJP [2004] NSWCCA 434
- R v Egan [2016] NSWCCA 285
- R v Gavel [2014] NSWCCA 56
- R v MNK [2006] NSWCCA 272
- R v King [2009] NSWCCA 117