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Court of Criminal Appeal 10 March 2017

Mark Anthony CLAPPISON v R

[2017] NSWCCA 33

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE HISTORICAL HOMOSEXUAL OFFENCE REMITTAL TO DISTRICT COURT

Citation: [2017] NSWCCA 33
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2017
Judge(s): Hoeben CJ at CL; Johnson J; Latham J

Background

The appellant had pleaded guilty to a number of sexual offences and was sentenced in the District Court in August 2015. The most serious charge related to a historical offence of homosexual intercourse with a male under 10 years of age, committed in 1984 when the appellant was 19 and the victim was nine. These offences only came to the attention of police in 2013.

A further count of a similar nature, arising from the same occasion and involving the same victim, was placed on a Form One document. A Form One is a list of additional offences that a sentencing court takes into account when passing sentence on the principal charge, without recording a separate conviction for each offence listed. Three further offences, committed against a 14-year-old boy in May 2014 while the appellant was on bail, were also before the sentencing court.

The appellant received a total head sentence of 12 years and four months imprisonment, with a non-parole period of nine years and three months. His initial ground of appeal challenged the sentence on the historical count as manifestly excessive, given sentencing patterns applicable in 1984.

  • Whether the sentence on the historical homosexual intercourse count was manifestly excessive, having regard to sentencing practices and non-parole period ratios applicable at the time of the offence in 1984.
  • Whether, in any event, the sentence was infected by a legal error arising from the inclusion on the Form One of an offence that carried a maximum penalty of life imprisonment, in contravention of s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999.
  • What orders were appropriate to correct the identified error.

Decision

The Court of Criminal Appeal did not ultimately resolve the manifest excess ground on its merits. During the hearing, the Court noted that any interference with one count would necessarily reopen the entire sentencing exercise, given the way the sentences were structured and interrelated.

After the hearing, the Court identified a more fundamental problem. The Form One contained an offence that carried life imprisonment as its maximum penalty. Section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 prohibits offences carrying life imprisonment from being placed on a Form One. Including such an offence on a Form One and taking it into account at sentencing is a contravention of that provision and constitutes a legal error.

Both the appellant and the Crown agreed, in supplementary submissions, that the matter should be returned to the District Court for correction. The Court of Criminal Appeal accepted that remittal was the only available course. Because the Form One offence was serious in its own right, it will be for the Director of Public Prosecutions to determine whether to proceed by way of a fresh indictment including that offence, or to adopt a different approach. The entire sentencing exercise is to be conducted afresh.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • All sentences imposed on 14 August 2015 quashed.
  • Matter remitted to the District Court for a hearing de novo pursuant to s 12(2) of the Criminal Appeal Act 1912.
  • Matter listed for mention at Sydney District Court on 17 March 2017.

Key Takeaways

  • Under s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999, an offence that carries a maximum penalty of life imprisonment cannot lawfully be placed on a Form One and taken into account during sentencing on the principal count.
  • Where such an error infects the sentencing process, the Court of Criminal Appeal confirmed that remittal for a full resentencing de novo is the appropriate remedy, not a correction of the affected count in isolation.
  • The Court of Criminal Appeal emphasised that where sentences are interrelated across multiple counts, interference with one count necessarily reopens the entire sentencing exercise.
  • A question arose at sentencing regarding whether courts are required to consider sentencing patterns and non-parole period ratios that prevailed at the time a historical offence was committed, though this issue was not resolved given the remittal outcome.
  • The decision as to how to proceed with the Form One offence on remittal rests with the Director of Public Prosecutions, including whether to bring a fresh indictment or pursue another procedural course.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 33(4)(b)
- Crimes Act 1900 (NSW), particularly s 78H
- Criminal Appeal Act 1912 (NSW), particularly s 12(2)

Cases cited: No cases were cited in the judgment.