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26
Court of Criminal Appeal 26 June 2019

Hordern v R

[2019] NSWCCA 138

Also reported as (2019) 278 A Crim R 353
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER OFFENCES PLANNED RESENTENCING BREACHES OF EXTENDED SUPERVISION ORDER INDECENT ASSAULTS

Citation: Hordern v R [2019] NSWCCA 138
Court: Court of Criminal Appeal, NSW
Date: 26 June 2019
Judge(s): Basten JA; Hamill J; Lonergan J

Background

The appellant was sentenced in the District Court at Parramatta on 7 July 2017 for two counts of aggravated indecent assault against young girls aged approximately two years and nine months, and four years respectively. He was also sentenced for breaching an extended supervision order. Culver DCJ imposed an aggregate sentence of 9 years 4 months with a non-parole period of 7 years, backdated to the date of arrest in October 2015.

The appellant appeared unrepresented in the Court of Criminal Appeal and raised four grounds of appeal. Two grounds related to the impact of his conditions of imprisonment on rehabilitation, raising matters that had largely arisen after sentencing. The Court refused leave on those grounds. The two remaining grounds were pursued: that the sentencing judge erred in finding planning was involved in the offending, and that the sentence was manifestly excessive.

The appeal raised a significant procedural question about how the Court of Criminal Appeal should approach challenges to factual findings made at sentencing, particularly where the finding was adverse to the offender and where no oral evidence was called.

  • Whether the sentencing judge erred in finding there was a degree of planning involved in the offending
  • Whether, and to what extent, the Court of Criminal Appeal can intervene to correct a factual finding made by a sentencing judge that is alleged to be wrong
  • Whether the availability of extended supervision or detention orders under the Crimes (High Risk Offenders) Act 2006 (NSW) was a relevant factor in assessing sentencing severity
  • Whether, on resentencing, the original aggregate sentence was manifestly excessive

Decision

On the central procedural question, Basten JA reaffirmed the approach taken in Clarke v R [2015] NSWCCA 232, with which Hamill J expressly agreed. The Court held that the Court of Criminal Appeal is not limited to intervening only where a sentencing judge's factual finding discloses an error of law, or something close to it. Where a sentencing judge has made a mistake as to a primary fact material to the sentencing exercise, the appellate court can and should identify that error and proceed to resentence. This conclusion followed from the statutory text of s 6(3) of the Criminal Appeal Act 1912 (NSW), which imposes no express constraint on the grounds for intervention, and from High Court authority requiring that courts not read jurisdiction-conferring provisions narrowly.

The Court supported this conclusion with three additional reasons. First, the appeal against sentence operates as an appeal by way of rehearing, and no further limitation should be implied from the word "appeal" alone. Second, principles of statutory interpretation require that provisions conferring jurisdiction not be read down by implication, and that statutes curtailing liberty be read in favour of the individual unless clear contrary intention is shown. Third, excluding factual error from the appeal ground would create incoherence: the Court can be directed under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) to review a sentence founded on factual error, so it would be anomalous if the same review were unavailable in a conventional appeal.

On the facts, the Court found that the sentencing judge's finding of planning was not supported by the available material and constituted a factual error material to the sentence. Ground 1 was upheld. Because that ground succeeded, it was unnecessary to consider the manifest excess ground separately. The Court also confirmed on resentencing that the availability of extended supervision or detention orders under the Crimes (High Risk Offenders) Act 2006 (NSW) is irrelevant to the assessment of objective seriousness or the fixing of a sentence for the underlying offences.

Orders Made

  • Leave to appeal granted, limited to grounds 1 and 4
  • Appeal allowed; sentences imposed by Culver DCJ on 7 July 2017 set aside
  • Applicant resentenced as follows:
  • Count 5 (breach of extended supervision order): 18 months imprisonment from 16 October 2015
  • Count 2 (aggravated indecent assault): non-parole period of 3 years 9 months from 16 October 2015, balance of term 1 year 3 months
  • Count 4 (aggravated indecent assault): non-parole period of 3 years 9 months from 16 October 2017, balance of term 1 year 3 months
  • First eligible date for release on parole noted as 15 July 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed, following Clarke v R, that its jurisdiction under s 6(3) of the Criminal Appeal Act 1912 (NSW) extends to correcting a sentencing judge's mistake of primary fact, not merely errors of law or something approaching error of law.
  • A factual finding adverse to an offender at sentencing must be proved beyond reasonable doubt, and where the appellate court is satisfied the finding was mistaken and material to the sentence, it can intervene and resentence.
  • Statutory interpretation principles cut against reading jurisdiction-conferring provisions narrowly: courts should not imply limitations on appellate powers that are absent from the text, particularly where personal liberty is at stake.
  • The availability of extended supervision orders or detention orders under the Crimes (High Risk Offenders) Act 2006 (NSW) is irrelevant to the assessment of objective seriousness when sentencing for the underlying offences.
  • Hamill J's express agreement with Basten JA's analysis on appellate fact-finding reinforces that this approach now reflects settled Court of Criminal Appeal authority, building on both Clarke v R and High Court decisions in House v The King and Kentwell v The Queen.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
- Crimes Act 1900 (NSW), s 61M
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5C, 5D, 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 24A, 54A

Cases
- Clarke v R [2015] NSWCCA 232
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc (1994) 181 CLR 404
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573
- Al-Kateb v Godwin (2004) 219 CLR 562
- Betts v The Queen (2016) 258 CLR 420
- Muldrock v The Queen (2011) 244 CLR 120
- DL v The Queen [2018] HCA 32
- AB v The Queen (1999) 198 CLR 111
- Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318
- R v Kyriakou (1988) 29 A Crim R 50
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Strbak [2019] QCA 42