AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
20
Court of Criminal Appeal 12 June 2019

Porter v R

[2019] NSWCCA 117

Sexual offences
OFFENCES COMMITTED IN JANUARY 2002 OFFENDER NOT SENTENCED UNTIL 2018 OFFENDING NO LESSER SENTENCE WARRANTED

Citation: Porter v R [2019] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 12 June 2019
Judges: Hoeben CJ at CL, R A Hulme J, Davies J

Background

The applicant was sentenced in February 2018 for two offences of aggravated sexual intercourse without consent committed in Griffith in January 2002, both against the same victim on the same occasion. The offences involved serious violence, including punching, the use of a knife as a threat, and threats directed at the victim's teenage daughter. Although the offences were reported at the time, the applicant was not identified until DNA testing in 2015.

The sentencing judge imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years, backdated to July 2016 to account for pre-sentence custody. Relevantly, the applicant had previously been convicted and sentenced for similar serious sexual offences committed in February 2001 and February 2002, and those earlier sentences had expired by 2016.

The applicant sought leave to appeal on four grounds: that the sentencing judge erred in applying the principle of totality, and that the judge failed to make findings on remorse, rehabilitation prospects, and likelihood of reoffending.

  • Whether the sentencing judge correctly applied the principle of totality, including whether he was required to consider what sentence would likely have been imposed had all three sets of offences been sentenced together
  • Whether the sentencing judge erred by failing to determine whether the applicant's expressed remorse was a mitigating factor
  • Whether the sentencing judge erred by failing to give reasons for his conclusions on rehabilitation prospects and likelihood of reoffending

Decision

The Court of Criminal Appeal found errors in the sentencing judge's approach on all four grounds. The primary judge failed to give adequate reasons in relation to totality, remorse, rehabilitation, and reoffending risk. Leave to appeal was granted on that basis.

On totality, the Court confirmed that the sentencing judge was required to consider what the effective head sentence would likely have been had the applicant been sentenced for all three sets of serious sexual offences at the one time, following the approach in Mill v The Queen (1988) 166 CLR 59. The Court acknowledged this was a complex exercise given that the earlier sentences had already expired, but held that the inquiry remained relevant. The Court also noted that delay between offending and sentencing must be assessed in light of whether the delay was attributable to the offender's own conduct.

On re-sentencing, the Court concluded that, had all three episodes of serious sexual offending been sentenced together, the sentence for the last offence in time would likely have been longer rather than shorter. The applicant's repeated serious offending against women within a short period would have attracted strong emphasis on personal deterrence and community protection. As a result, the Court found no basis for imposing a lesser sentence than that originally imposed.

On remorse, rehabilitation, and reoffending risk, the Court found the primary judge had not engaged with the evidence and submissions put forward, which constituted identifiable errors. After conducting its own assessment of those matters, including psychological evidence pointing in different directions, the Court was not satisfied on the balance of probabilities that the applicant's rehabilitation prospects were "good" or that reoffending was "unlikely."

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Where an offender is sentenced for offences committed at a time when other similar offending had already attracted separate sentences, a sentencing court must still engage with the Mill v The Queen totality inquiry, even if those earlier sentences have since expired. The exercise is not straightforward in such circumstances, but it cannot be bypassed.

  • Delay between offending and sentencing is a relevant consideration in the sentencing exercise, but the Court of Criminal Appeal confirmed that the weight given to delay must account for whether it was caused by the offender's own actions or inactions.

  • A failure to make express findings on contested mitigating factors, including remorse, rehabilitation prospects, and likelihood of reoffending, constitutes an error of law requiring the appellate court to conduct its own assessment.

  • In dismissing the appeal, the Court found that a proper application of totality principles actually pointed toward a higher sentence rather than a lower one, given that three episodes of serious sexual assault within a short period would have indicated significant danger to the community.

  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), even where identifiable sentencing errors are established, an appellate court will not intervene if it concludes that no lesser sentence than the one imposed was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61J(1), 86(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(5AA), 47
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases:
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Todd [1982] 2 NSWLR 517
- R v Kay [2004] NSWCCA 130
- R v Hall [2017] NSWCCA 313
- WAP v R [2017] NSWCCA 212
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Dimian v R [2016] NSWCCA 223
- Imbornone v R [2017] NSWCCA 144
- R v Fernando (1992) 76 A Crim R 58
- R v Omar [2015] NSWCCA 67