Citation: Director of Public Prosecutions (NSW) v Dowd [2018] NSWCCA 102
Court: Court of Criminal Appeal
Date: 28 May 2018
Judges: Basten JA at [1]; Button J at [24]; Fagan J at [39]
Background
The respondent was convicted after a judge-alone trial of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). On 2 February 2018, the sentencing judge imposed a term of 5 years imprisonment with a non-parole period of 2 years 6 months, and made a finding of special circumstances to justify the extended ratio between the non-parole period and the balance of term.
The Director of Public Prosecutions appealed against the sentence on the sole ground that it was manifestly inadequate. The Director did not identify discrete errors of principle, but pointed to several passages in the sentencing remarks as possible indicators of flawed reasoning.
The three passages in question concerned the sentencing judge's treatment of the standard non-parole period, a possible conflation between that analysis and the finding of special circumstances, and the judge's assessment of objective seriousness as "below mid-range."
Legal Issues
- Whether the sentence of 5 years imprisonment with a 2 years 6 months non-parole period was manifestly inadequate for an offence of sexual intercourse without consent.
- Whether the sentencing judge erred by treating the standard non-parole period as "not applicable" to the offence.
- Whether the sentencing judge impermissibly conflated the standard non-parole period analysis with the finding of special circumstances.
- Whether the sentencing judge's assessment of objective seriousness as below mid-range was an error warranting intervention.
- What principles govern a prosecution appeal against sentence, and in particular what the Court of Criminal Appeal must establish before intervening.
Decision
The Court of Criminal Appeal dismissed the appeal, with all three judges agreeing that the sentence, while lenient, did not cross the threshold required for appellate intervention on the ground of manifest inadequacy.
On the standard non-parole period, the Court rejected the submission that the judge had ignored it. Although the judge described it as "not applicable," that expression could not be read literally: the judge had correctly identified both the maximum penalty of 14 years and the standard non-parole period of 7 years. The Court treated the impugned language as an infelicitous way of saying the judge found limited guidance from the guidepost in the particular circumstances of the case, which was not an error.
On the question of conflation, the Court found that the judge was entitled to draw on the same factual matters when assessing both the utility of the standard non-parole period and the existence of special circumstances. There was no impermissible double-counting or merging of distinct legal concepts. Similarly, the Court accepted that the sentencing judge's characterisation of objective seriousness as below mid-range was open on the evidence, given the circumstances of the offending as found at trial.
Applying the principles from Hili v The Queen and Wong v The Queen, the Court emphasised that manifest inadequacy is a conclusion, not a mere observation that a sentence is markedly lower than others. Intervention is warranted only where the difference between the sentence imposed and appropriate sentences is such that the appellate court can infer a misapplication of principle. While each judge on the panel expressed reservations about the leniency of the sentence, none was persuaded that it fell below the lowest level encompassed by the legitimate exercise of the sentencing discretion.
Orders Made
• Appeal dismissed
• Order proposed by Basten JA agreed to
Key Takeaways
-
Manifest inadequacy is a conclusion requiring more than a finding that a sentence is markedly lower than other comparable sentences. Appellate intervention is warranted only where the disparity indicates that some misapplication of principle must have occurred, even if the specific error cannot be identified.
-
A sentencing judge's description of the standard non-parole period as "not applicable" will not, of itself, establish error, provided the judge has in fact identified the standard non-parole period and engaged with it as a guidepost. Imprecise language in sentencing reasons must be read in context.
-
Past sentencing patterns provide a yardstick against which to examine a proposed sentence, but they do not fix binding upper or lower limits. As the Court reaffirmed, consistency in sentencing means consistency in the application of legal principles, not numerical equivalence across cases.
-
A sentencing judge may permissibly rely on the same factual matters when assessing both the relevance of the standard non-parole period and whether special circumstances exist. Drawing on overlapping considerations does not automatically constitute conflation of two distinct statutory concepts.
-
In dismissing the appeal, the Court of Criminal Appeal underscored that the purpose of a prosecution appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is primarily to lay down principles for the governance of sentencing courts, not simply to correct individual lenient outcomes.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A, 54B
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Code (Qld), s 669A
Cases
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Bullock v R [2016] NSWCCA 131
- R v Shortland [2018] NSWCCA 34
- Stewart v R [2012] NSWCCA 183