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District Court 28 August 2018

R v MM (No 3)

[2018] NSWDC 529

Sexual offences

Citation: R v MM (No 3) [2018] NSWDC 529
Court: District Court of New South Wales
Date: 28 August 2018
Judge: Sutherland DCJ SC

Background

The offender had been found guilty following a judge-alone trial of 73 offences and was sentenced on 27 August 2018 to an aggregate term of 32 years with a non-parole period of 24 years. The offences were serious child sex offences, and the sentencing involved indicative sentences for individual counts as required when an aggregate sentence is imposed.

During the sentencing remarks, the judge noted errors in the Crown's sentence summary regarding the standard non-parole periods applicable to certain offences. After sentence was passed, it became apparent that the judge had himself applied some incorrect standard non-parole periods, including figures drawn from the 2015 legislative amendments that, unlike the 2007 amendments, operated only prospectively.

The Crown applied the following day under section 43 of the Crimes (Sentencing Procedure) Act 1999 for the judge to amend the sentence to correct those errors.

  • Whether the 2015 amendments to standard non-parole periods in the Crimes Legislation Amendment (Child Sex Offences) Act 2015 applied retrospectively to offences committed before their commencement, in the same way the 2007 amendments had.
  • Whether the errors in the application of standard non-parole periods were amenable to correction under section 43 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the incorrectly referenced standard non-parole periods had any material bearing on the indicative sentences or the aggregate sentence ultimately imposed.

Decision

The judge acknowledged that he had fallen into error when applying standard non-parole periods drawn from the 2015 amendments. Unlike the 2007 amendments, which expressly applied to the determination of a sentence for offences whenever committed, the 2015 amendments contained a provision expressly limiting their application to offences committed after commencement. Applying the higher 2015 figures to earlier offences was therefore incorrect.

The judge explained how the error arose. He had relied on references in the Sentencing Bench Book and on a table of standard non-parole periods set out in BR v R [2015] NSWCCA 255. The Bench Book noted that the 2007 increases applied retrospectively but did not expressly flag that the 2015 increases applied only prospectively. The judge observed, with appropriate caution, that Simpson J in BR v R may have reflected the same misunderstanding when setting out those figures, though that point was not determinative.

On the section 43 application, the judge declined to revisit the individual indicative sentences or the aggregate sentence. His preliminary view was that the error was not the type correctable under section 43. He noted that the indicative sentences had already been entered into JusticeLink and that he had stated on the previous day that he had no intention of revisiting the numbers.

The judge concluded that, in any event, the incorrectly stated standard non-parole periods had no direct bearing on the indicative sentences he reached. He was equally satisfied that they played no determinative role in arriving at the aggregate sentence of 32 years with a 24-year non-parole period. He indicated that it would be a matter for the Court of Criminal Appeal to reach whatever conclusions it saw fit.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The 2007 amendments to standard non-parole periods under the Crimes (Sentencing Procedure) Amendment Act 2007 applied retrospectively to offences whenever committed, subject to qualifications about prior pleas or convictions. The 2015 amendments under the Crimes Legislation Amendment (Child Sex Offences) Act 2015 did not share that retrospective operation and applied only to offences committed after their commencement.
  • A sentencing court that applies a standard non-parole period from the 2015 amendments to pre-commencement offences applies an incorrect figure, even if the Sentencing Bench Book or Court of Criminal Appeal materials appear to suggest otherwise through inadvertent omission or error.
  • Under section 43 of the Crimes (Sentencing Procedure) Act 1999, not every error in a sentencing judgment is amenable to correction by the original court. The District Court here declined to use that provision to revisit the indicative or aggregate sentences.
  • Where a sentencing judge finds that an incorrectly stated standard non-parole period had no direct bearing on the sentences actually imposed, the practical consequence of the error may be limited, though the question remains open to review by an appellate court.
  • Reliance on Crown sentence summaries does not insulate a sentencing judge from error: in both the current matter and GSH v R, judges had adopted incorrect standard non-parole period figures that originated from Crown-prepared materials.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 43 and s 54D
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), No 50
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), No 13

Cases
- GSH v R [2009] NSWCCA 214
- BR v R [2015] NSWCCA 255
- McGrath v R [2010] NSWCCA 48
- Nguyen v Regina [2017] NSWCCA 39
- R v MM [2018] NSWDC 181 (verdict judgment)