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Court of Criminal Appeal 27 November 2017

Evans v R

[2017] NSWCCA 281

Sexual offencesAssault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ALLEGED MANIFEST EXCESS HELD MANIFEST EXCESS ESTABLISHED APPEAL ALLOWED

Citation: Evans v R [2017] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 27 November 2017
Judges: Hoeben CJ at CL, Davies J, Adamson J

Background

The appellant had been sentenced in the District Court at Tamworth in March 2017 for a series of offences arising from a domestic relationship. The offences included indecent assault, doing an act with intent to influence a witness in judicial proceedings, two counts of common assault, intentionally destroying property, and contravening an apprehended domestic violence order. Several of these offences were taken into account on a Form 1 schedule or dealt with by way of a certificate under the Criminal Procedure Act.

The sentencing judge imposed an aggregate sentence of 5 years and 6 months, with a non-parole period of 3 years and 6 months. The indicative sentences attached to each count included 3 years for the indecent assault (count 1) and 3 years and 2 months for the witness-influencing offence (count 2).

The appellant sought leave to appeal, arguing that the indicative sentences and the resulting aggregate were manifestly excessive. The application was filed slightly outside the standard appeal period, but the respondent did not oppose an extension of time.

  • Whether the indicative sentence for the offence of doing an act with intent to influence a witness was manifestly excessive
  • Whether the indicative sentence for indecent assault was manifestly excessive
  • Whether the effective level of accumulation built into the aggregate sentence was too great having regard to the individual indicative sentences
  • Whether the aggregate sentence as a whole was manifestly excessive

Decision

The Court of Criminal Appeal, constituted by Adamson J (with Hoeben CJ at CL and Davies J agreeing), found that the indicative sentence for count 2, the witness-influencing offence, was manifestly excessive. The court assessed that offence as well below the mid-range of seriousness and substituted an indicative sentence of 1 year (after the 20% guilty plea discount), compared with the original indicative sentence of 3 years and 2 months.

The court also reduced the indicative sentence for the common assault on the section 166 certificate from 9 months to 8 months, and confirmed an indicative sentence of 3 years for the indecent assault in count 1. These reductions in the indicative sentences necessarily affected the aggregate.

Adamson J found that special circumstances existed, given the desirability of a lengthy period of supervised parole to assist the appellant in addressing anger management, stress, and his responses to rejection or frustration. On re-sentence, the court imposed a reduced aggregate sentence of 3 years and 6 months with a non-parole period of 2 years, a significantly shorter non-parole period than that originally imposed.

Orders Made

  • Extension of time for filing the application for leave to appeal granted to 11 October 2017
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Aggregate sentence imposed by McLennan SC DCJ on 3 March 2017 quashed
  • Aggregate sentence of imprisonment for 3 years and 6 months imposed, commencing 3 May 2016 and expiring 2 November 2019, with a non-parole period of 2 years expiring 2 May 2018
  • The offender eligible for release on parole on 2 May 2018

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest excess in an aggregate sentence can arise not only from individual indicative sentences being excessive, but also from the cumulative effect of the accumulation built into the aggregate.
  • An indicative sentence attached to a count must reflect the actual objective seriousness of that offence. Where a witness-influencing offence was assessed as well below the mid-range of seriousness, an indicative sentence of over 3 years could not be sustained.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court imposing an aggregate sentence must indicate the sentence it would have imposed for each individual count. Errors in those indicative sentences can infect the aggregate and provide a ground of appeal.
  • Special circumstances findings under the aggregate sentencing framework can produce a non-parole period that is significantly shorter than the standard proportion relative to the head sentence, particularly where supervised post-release management is a priority.
  • In re-sentencing, the Court of Criminal Appeal reduced the non-parole period from 3 years and 6 months to 2 years, while maintaining the total head sentence of 3 years and 6 months, reflecting the special circumstances identified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61L, 195, 323
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 53A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Criminal Procedure Act 1986 (NSW), s 166
- Family Law Act 1975 (Cth)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37