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10
Court of Criminal Appeal 14 December 2017

R v Hall

[2017] NSWCCA 313

Sexual offences
CRIME CROWN APPEAL AGAINST SENTENCE SEXUAL OFFENCES OFFENDING OCCURRED IN 1990 NO DELAY IN COMPLAINT SENTENCES MANIFESTLY INADEQUATE CRIME

Citation: R v Hall [2017] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 14 December 2017
Judges: Simpson JA; R A Hulme J; Wilson J

Background

The respondent was convicted by jury of four sexual offences committed in March 1990, when he was 32 years old. The offences involved threatening a 23-year-old woman with a knife and forcing her to perform oral sex and submit to vaginal intercourse in a motel room. The victim made an immediate complaint, but police were unable to identify a suspect at the time and closed the investigation.

The respondent was not identified until 2010, when a DNA match was made through a national database after he provided a sample following an unrelated minor offence in Queensland. He was arrested in 2013 and stood trial in late 2016. By the time of sentencing in September 2017, some 27 years had passed since the offending.

In the District Court, Judge Whitford SC imposed an aggregate sentence of 5 years with a non-parole period of just 1 year. The Crown appealed, contending the sentence was manifestly inadequate and that several specific errors had been made.

  • Whether the aggregate sentence of 5 years with a 1-year non-parole period was manifestly inadequate for four serious sexual offences.
  • Whether the sentencing judge erred in finding that the presence of a knife was not an aggravating factor for the counts under s 61C(1)(b) of the Crimes Act 1900.
  • Whether the non-parole period of 1 year (20% of the head sentence) was appropriately set, and whether the judge's method of deriving it was legally correct.
  • How sentencing principles apply where there has been a lengthy delay between offending and sentencing, including the relevance of sentencing standards at the time of the offence and the weight to be given to rehabilitation.
  • Whether a Crown appeal that establishes patent error requires a separate finding of manifest inadequacy before the Court can re-sentence.

Decision

The Court of Criminal Appeal allowed the appeal and re-sentenced the respondent. R A Hulme J (with whom Simpson JA and Wilson J agreed) identified several errors in the District Court's approach, including the treatment of the knife as a non-aggravating factor and the methodology used to set the non-parole period.

On the non-parole period, the Court found it was an error to use a two-stage approach that assessed objective gravity for the head sentence and then treated mitigating subjective factors as separately reducing the non-parole period. A non-parole period must reflect the totality of the criminality involved. A non-parole period of 1 year (20% of a 5-year head sentence) was, in any event, impermissible without the court making a finding that there were special circumstances warranting a departure from the statutory ratio. No such finding was made and no proper basis for such a finding existed.

The Court acknowledged the respondent's genuine rehabilitation over the 27 years since the offending, his significant family responsibilities, and the additional burdens of his custodial situation. However, the Court confirmed that general deterrence and denunciation retain real significance even in historical offending cases, particularly where the delay in bringing the offender to justice was not the fault of others. These considerations, combined with the objective seriousness of the offences, rendered the original sentence manifestly inadequate.

On the question of whether manifest inadequacy must be found independently of any patent error, the Court confirmed that, where a Crown appeal is advanced solely on the basis of patent error rather than manifest inadequacy, a finding of manifest inadequacy is still required before the court can re-sentence. In this case, however, the Court found that manifest inadequacy was established.

Orders Made

  • Crown appeal against sentence allowed.
  • The sentence imposed in the District Court on 1 September 2017 is quashed.
  • The respondent is sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years, commencing 1 September 2017. The non-parole period expires 31 August 2021, at which time the respondent becomes eligible for release on parole.

Key Takeaways

  • A non-parole period set at 20% of the head sentence constitutes an error unless the sentencing court has made a specific finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999; the non-parole period must itself reflect the full criminality of the offending, not merely serve as a residual figure after mitigating factors have been applied separately.
  • General deterrence and denunciation remain relevant sentencing purposes for serious historical sexual offences, even where significant rehabilitation has occurred in the intervening years, particularly where the delay in prosecution was not caused by any fault attributable to others.
  • Where a Crown appeal is framed as a patent error appeal rather than a manifest inadequacy appeal, the Court of Criminal Appeal confirmed it cannot re-sentence without also making a finding of manifest inadequacy.
  • Rehabilitation achieved after the time of offending is a legitimate mitigating factor, but it does not eliminate the weight to be given to the objective gravity of the offending, especially for serious offences involving violence, threats with a weapon, and sustained sexual assault.
  • In applying the totality principle to an aggregate sentence under s 53A, the Court must account for the additional criminality arising from multiple distinct acts, which may warrant partial notional accumulation of individual sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61C(1)(b), 61D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2), 44(2B), 53A

Cases:
- AJB v R [2007] NSWCCA 51
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346
- CT v R [2017] NSWCCA 15
- Elchiekh v R [2016] NSWCCA 225
- Henderson v R [2016] NSWCCA 8
- GRD v R [2009] NSWCCA 149
- Lozanovski v R [2006] NSWCCA 143
- MC v R [2017] NSWCCA 316
- Mill v The Queen (1988) 166 CLR 59
- Morgan v R [2017] NSWCCA 269
- MPB v R [2013] NSWCCA 213
- Muldrock v The Queen (2011) 244 CLR 120
- PH v R [2009] NSWCCA 161
- PWB v R [2011] NSWCCA 84
- R v Ceissman [2004] NSWCCA 466
- R v Edwards (1996) 90 A Crim R 510
- R v EGC [2005] NSWCCA 392
- R v Engert (1995) 84 A Crim R 67
- R v Jarrold [2010] NSWCCA 69