Citation: RO v R [2019] NSWCCA 183
Court: Court of Criminal Appeal, NSW
Date: 9 August 2019
Judges: Bathurst CJ, Beech-Jones J, N Adams J
Background
The applicant was convicted of five counts of aggravated sexual intercourse with a child aged between 10 and 14 years, and three counts of aggravated sexual intercourse without consent, committed against his partner's daughter over several years. Both the victim's identity and the applicant's identity were subject to non-publication orders; the victim is referred to in the judgment as "Angela." The offences began when Angela was approximately seven or eight years old and involved a serious and sustained pattern of abuse.
At sentencing in the District Court, the judge imposed an aggregate sentence of 21 years imprisonment with a non-parole period of 14 years, backdated to 1 April 2017. The sentencing judge also took into account six additional offences on "Form 1" notices (that is, offences formally listed for the court to consider when determining sentence, without separate penalties being imposed for them).
The applicant sought leave to appeal against the sentence. The Crown conceded that the sentencing judgment contained error of the kind described in House v R, which justified the Court of Criminal Appeal intervening.
Legal Issues
- Whether the sentencing judge erred in the use of Form 1 offences when assessing the objective seriousness of the subject offences on the indictment
- Whether the sentencing judge erred in relying on Veen (No 2) principles in a way that affected the sentence
- Whether the sentencing judge failed to include the parole period when backdating the sentence, resulting in an incorrect commencement date
- Whether, given errors were established, the Court of Criminal Appeal should impose a more severe, less severe, or the same sentence
- Whether the Court was required to specify higher indicative sentences where those sentences were not ultimately imposed
Decision
The Court of Criminal Appeal granted leave to appeal and was satisfied the sentencing judgment was affected by appealable error. Both Beech-Jones J (with Bathurst CJ agreeing) and N Adams J concluded that the concession by the Crown was properly made. The established errors required the Court to undertake the resentencing exercise independently.
On the backdating issue, the sentencing judge had failed to account for the parole period when calculating the commencement date of the sentence. This meant the applicant's sentence, as originally expressed, ran from an incorrect date. Beech-Jones J treated this as a standalone error warranting correction.
After applying the totality principle (which requires a court to step back and assess whether the overall sentence appropriately reflects the totality of the offending), Beech-Jones J concluded that the same aggregate length of 21 years with a 14-year non-parole period remained appropriate. However, because the backdating error produced a sentence that was effectively longer than it should have been, a lesser aggregate sentence was "warranted in law" within the meaning of the Criminal Appeal Act 1912. The Court therefore imposed a sentence of the same term but with a corrected commencement date, along with revised indicative sentences for each offence on the indictment.
On the question of whether the Court must specify higher indicative sentences when the higher aggregate is not ultimately imposed, N Adams J (with Beech-Jones J) held that there is no statutory obligation under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 to formally record indicative sentences for an aggregate sentence that is not actually imposed. It would be sufficient simply to note that the new indicative sentences would have been higher, without specifying figures.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that where errors of the House v R kind are established in a sentencing judgment, the appellate court must undertake its own independent resentencing exercise rather than simply identifying the error and remitting the matter.
- Failure to include the parole period when backdating an aggregate sentence constitutes a discrete error capable of producing an effectively longer sentence than intended, and correction of the commencement date is the appropriate remedy.
- Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must record indicative sentences for each individual offence, but this obligation only arises where a new aggregate sentence is actually being imposed; no obligation exists to formally specify higher indicative sentences for a higher aggregate that is not imposed.
- The totality principle requires a sentencing court to assess whether the overall sentence reflects the full picture of the offending, and the Court of Criminal Appeal applied this principle afresh when resentencing rather than simply adjusting the original figures.
- Non-publication orders protecting both the victim's and the applicant's identities applied throughout these proceedings, reflecting obligations under s 578A(2) of the Crimes Act 1900.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 66C(2), 578A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 53A, Pt 4 Div 7A
- Criminal Appeal Act 1912 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
Key Cases
- House v R (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Achurch v The Queen [2014] HCA 10
- Mill v The Queen (1988) 166 CLR 59
- Cahyadi v R [2007] NSWCCA 1
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146