AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
35
Court of Criminal Appeal 9 August 2019

RO v R

[2019] NSWCCA 183

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE TOTALITY PRINCIPLE ERROR ESTABLISHED SENTENCE

Citation: RO v R [2019] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 9 August 2019
Judge(s): Bathurst CJ; Beech-Jones J; N Adams J

Background

The applicant pleaded guilty in the District Court to eight serious sexual offences committed against his partner's daughter ("Angela") over a period of years when she was aged between approximately ten and fourteen. Five counts concerned aggravated sexual intercourse with a person aged between ten and fourteen years (s 66C(2) Crimes Act 1900) and three counts concerned aggravated sexual intercourse without consent (s 61J(1)). The applicant also requested that the court take into account a further six offences on Form 1 notices, all involving Angela.

The sentencing judge imposed an aggregate sentence of 21 years imprisonment with a non-parole period of 14 years, backdated to 1 April 2017. The applicant sought leave to appeal on four grounds. The Crown conceded that errors of the kind identified in House v R had occurred.

Legal Issues

  • Whether the sentencing judge erred by considering Form 1 offences when assessing the objective seriousness of count 1.
  • Whether the sentencing judge misapplied the principle in Veen (No. 2) concerning the relevance of criminal history.
  • Whether the sentencing judge erred in backdating the sentence by excluding the parole period of a concurrent sentence when calculating pre-sentence custody.
  • Whether the sentencing judge erred in failing to consider whether the totality principle warranted some concurrency between the subject sentence and an earlier sentence for assaulting Angela.
  • How the Court of Criminal Appeal should exercise its re-sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 when applying those findings to an aggregate sentence, including whether it must specify higher indicative sentences.

Decision

Ground 1: Form 1 offences and objective seriousness

The sentencing judge expressly took into account conduct from the Form 1 offence associated with count 1, finding that it elevated the objective seriousness of count 1 itself. The Court held this involved error at two levels (at [55]-[57]). First, the objective seriousness of an offence carrying a standard non-parole period must be assessed wholly by reference to the nature of that offence, not other criminal conduct on different occasions (at [56]). Second, the proper role of Form 1 offences in sentencing is limited to demonstrating an additional need for personal deterrence and retribution, not informing the assessment of objective seriousness of the principal count (at [57]). Ground 1 was upheld (at [60]).

Ground 3: Misapplication of Veen (No. 2)

The sentencing judge invoked Veen (No. 2) reasoning about prior criminal history in a manner that elided the difference between being sentenced for multiple offences and having previously been sentenced for similar offences (at [64]-[66]). The applicant's actual criminal history, apart from an assault on Angela committed after most of the subject offences, consisted of minor matters. Applying that reasoning to the subject offences themselves risked double punishment for the same conduct and was inconsistent with the sentencing judge's own finding that the applicant had some prospects of rehabilitation (at [66]). Ground 3 was upheld (at [67]).

Ground 4(a): Pre-sentence custody and the parole period

Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 obliges a sentencing judge to take into account all time held in custody in relation to the subject offences when backdating a sentence commencement date. The applicant was entitled to parole as of right from his earlier sentence for the assault offences, meaning the parole period of that sentence remained time referable to his custody for the subject offences (at [71]-[73]). The failure to include that period was an error, albeit one the parties contributed to by not raising it below. Ground 4(a) was upheld (at [73]).

Ground 4(b): Totality and the assault sentence

The Court rejected this ground. No submission was made to the sentencing judge that the totality principle required any concurrency between the subject sentence and the assault sentence. The material about the assault appeared only as background context in the agreed facts. In the absence of any submission or adequate material, there was no established error in the sentencing judge's failure to address that question (at [74]-[76]).

Re-sentencing under s 6(3): approach and outcome

The Court confirmed that errors having been established, it was required by Kentwell to re-exercise the sentencing discretion afresh (at [79]-[80]). In doing so, it assessed the objective seriousness of each count without reference to the Form 1 offences, disregarded the Veen (No. 2) reasoning, and corrected the backdating (at [90]-[99]). The Court found that several offences were at or above mid-range, with count 3 (forced rape in Angela's bedroom with her mother's participation) and count 8 (intoxicating a 13-year-old before rape) each towards the high end of the range for their respective offences (at [95]-[96]).

Despite specifying higher indicative sentences than the sentencing judge, the Court concluded that the same overall aggregate length of 21 years with a 14-year non-parole period remained appropriate given the totality of sustained sexual abuse (at [112]). However, accounting for six months additional backdating on the custody error and a further two months for totality in relation to the assault offences, the sentence commences eight months earlier (at [113]-[114]). The Court held that a less severe sentence was accordingly warranted in law, being the same length but with an earlier commencement date (at [113]).

The question of specifying higher indicative sentences

Beech-Jones J confirmed that when the Court concludes a higher sentence is warranted but does not impose one, it is not obliged to specify what that higher sentence would have been, and ordinarily should not do so, for reasons of finality and potential prejudice to the offender in parole and classification decisions (at [86]-[89]). N Adams J agreed, adding that where an aggregate sentence of the same or greater length than that at first instance is reached but not imposed, there is no statutory requirement to specify the higher indicative sentences and it would suffice to note that they are higher without quantifying them (at [123]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed by Wass DCJ on 13 October 2017 set aside.
  • In lieu thereof, an aggregate sentence of 21 years imprisonment imposed, commencing 1 August 2016 and expiring 31 July 2037.
  • Non-parole period of 14 years set, with the earliest parole eligibility date of 1 August 2030.
  • Indicative sentences specified in a schedule pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999:
  • Count 1 (s 61J(1)): 11 years 11 months, non-parole period 7 years 11 months
  • Count 2 (s 66C(2)): 9 years 4 months
  • Count 3 (s 61J(1)): 13 years 7 months, non-parole period 9 years 1 month
  • Count 4 (s 66C(2)): 10 years 2 months
  • Count 5 (s 66C(2)): 11 years 1 month
  • Count 6 (s 66C(2)): 11 years 11 months
  • Count 7 (s 61J(1)): 11 years 1 month, non-parole period 7 years 4 months
  • Count 8 (s 66C(2)): 12 years 9 months
  • Applicant's solicitor directed to notify the applicant of the Crimes (High Risk Offenders) Act 2006 and its application to the subject offences.

Key Takeaways

  • Form 1 offences have a defined and limited role in the sentencing discretion: they are relevant only as evidence of an additional need for personal deterrence and retribution, not as factors that elevate the assessed objective seriousness of the principal offence (at [57]). Where an offence carries a standard non-parole period, the objective seriousness assessment must be confined wholly to the nature of that offence (at [56]).

  • A sentencing judge who invokes Veen (No. 2) must distinguish carefully between the situation of a repeat offender (sentenced previously for the same or similar conduct) and an offender being sentenced for multiple offences simultaneously. Applying Veen (No. 2) to the offences themselves as evidence of a continuing attitude of disobedience risks double punishment for the same conduct (at [64]-[66]).

  • Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999, where an offender is entitled to parole as of right from an earlier sentence, the parole period of that sentence remains part of the time in custody referable to the subject offences and must be accounted for when backdating the commencement date of a new sentence (at [71]-[73]).

  • When the Court of Criminal Appeal re-sentences on an aggregate sentence and concludes that a higher sentence is warranted in law but does not impose one, Beech-Jones J and N Adams J confirmed (with slightly different reasoning) that it is not obliged to specify the higher sentence and generally should not do so, given considerations of finality and the potential for prejudice in parole and classification decisions (at [86]-[89], [119]-[123]).

  • Errors in the sentencing process that individually might appear confined to a single count of an aggregate indictment can still infect the entire sentencing exercise where other conceded errors also affect the aggregate sentence, requiring a full re-exercise of the sentencing discretion under Kentwell principles (at [59], [104]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
- Crimes Legislation Amendment (Child Sex Offences) Act 2015
- Criminal Appeal Act 1912

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Achurch v The Queen [2014] HCA 10
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Clinton v R [2018] NSWCCA 66
- Gal v R [2015] NSWCCA 242
- Gilmour v R [2018] NSWCCA 295
- House v R (1936) 55 CLR 499
- Johnson v R [2004] HCA 15
- Kaderavek v R [2018] NSWCCA 92
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R [2016] NSWCCA 255
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nye v R [2018] NSWCCA 244
- O’Grady v R [2015] NSWCCA 168
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- PD v R [2012] NSWCCA 242
- Porter v R [2019] NSWCCA 117
- RH v R [2019] NSWCCA 64
- SHR v R [2014] NSWCCA 94
- Stavropoulos v R [2018] NSWCCA 12
- Turnbull v R [2019] NSWCCA 97
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14