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Court of Criminal Appeal 13 December 2017

West, Jarrett v R

[2017] NSWCCA 306

Sexual offences
CRIMINAL LAW SENTENCING APPEAL PAROLE PERIOD NON

Citation: West, Jarrett v R [2017] NSWCCA 306
Court: Court of Criminal Appeal
Date: 13 December 2017
Judge(s): Simpson JA; Rothman J; Hamill J

Background

The applicant pleaded guilty in the District Court to 15 offences involving the sexual abuse of two child complainants, a 14-year-old male and a younger female victim, and related child abuse material offences. He was sentenced on 18 November 2016, following a plea of guilty entered on 29 June 2016.

The sentencing judge imposed an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years, commencing 8 June 2015. The sentencing judge expressly found special circumstances, noting the need for lengthy monitoring of the offender's participation in sex offending programs in the community. Under the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances allows the sentencing judge to depart from the statutory default ratio of one-third parole to two-thirds non-parole.

The applicant sought leave to appeal, arguing both that the total sentence was manifestly excessive and that the non-parole period failed to give effect to the finding of special circumstances.

  • Whether the aggregate sentence of 15 years was manifestly excessive given the nature and number of offences and the circumstances of the offending.
  • Whether the non-parole period of 11 years properly reflected the sentencing judge's express finding of special circumstances.

Decision

The Court of Criminal Appeal rejected the ground of manifest excess. The total sentence of 15 years was found to be appropriate given the seriousness and multiplicity of the offending, which involved repeated sexual abuse of two children over a sustained period and the possession, production, and dissemination of child abuse material.

The Court upheld the second ground. Although the sentencing judge found special circumstances, the non-parole period actually imposed (11 years out of 15) differed from the statutory default ratio by only three months. Rothman J concluded this was insufficient to give meaningful effect to the identified need for extended post-release supervision and rehabilitation in the community, and that the discrepancy most likely reflected a miscalculation or arithmetic error rather than a deliberate sentencing choice. The Crown did not challenge the finding of special circumstances, and Rothman J independently agreed with it.

Having identified error, the Court was required to exercise the sentencing discretion afresh in accordance with the High Court's approach in Kentwell v The Queen. The total sentence remained at 15 years, but the non-parole period was reduced from 11 years to 10 years, producing a parole period of five years that properly reflected the special circumstances finding.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The aggregate sentence imposed in the District Court on 18 November 2016 was quashed.
  • In lieu thereof, the applicant was sentenced to an aggregate term of 15 years imprisonment commencing 8 June 2015 and concluding 7 June 2030, with a non-parole period of 10 years expiring 7 June 2025.
  • The applicant is first eligible for parole on 7 June 2025.

Key Takeaways

  • Where a sentencing judge makes an express finding of special circumstances, that finding must be meaningfully reflected in a shorter non-parole period; a nominal departure from the statutory default ratio may amount to an error warranting appellate intervention.
  • A discrepancy of only three months between the non-parole period actually imposed and what the statutory default would have produced was, in the Court's view, insufficient to give effect to a finding that lengthy community-based monitoring and sex offending programs were required.
  • Rothman J's reasoning suggests that where the departure from the statutory ratio is so small that it cannot plausibly achieve the purpose identified for the special circumstances finding, an inference of arithmetic error arises, even absent an explicit concession of error.
  • Once appellate error is established in the application of special circumstances, the Court of Criminal Appeal is required to resentence afresh under the principles confirmed in Kentwell v The Queen, even if the total head sentence remains unchanged.
  • In dismissing the manifest excess ground, the Court affirmed that a 15-year aggregate sentence was proportionate to an offending pattern involving repeated child sexual abuse against two victims, combined with child abuse material offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1), 66C(3), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Davis v R [2015] NSWCCA 90
- Beale v R [2015] NSWCCA 120
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534