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Court of Criminal Appeal 19 December 2019

CC v R

[2019] NSWCCA 229

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL

Citation: CC v R [2019] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Payne JA, Fullerton J, Bellew J

Background

The applicant had been sentenced in two separate sets of proceedings for distinct offending. Huggett SC DCJ imposed an aggregate sentence of 5 years (non-parole period of 2 years and 9 months) for six sexual assault offences and an offence of intending to pervert the course of justice. That sentence was the subject of a separate, contemporaneous appeal also dismissed on the same day.

The present appeal concerned a subsequent aggregate sentence imposed by Neilson DCJ on 22 June 2018, after the applicant was convicted at trial of four offences committed in February 2016. Those offences involved the use of an offensive weapon with intent to intimidate, intentional damage to property, intimidation with intent to cause fear of physical or mental harm, and taking a person with the intention of gaining a psychological advantage. All four offences were committed against a former partner.

Neilson DCJ imposed an aggregate sentence of 4 years, with a non-parole period of 2 years and 3 months, commencing on 15 April 2020. The commencement date was fixed with the agreement of the applicant's counsel, meaning the sentence would partially accumulate on the sentence already being served. The result was an effective combined sentence of approximately 6 years and 5 months, with an effective non-parole period of approximately 4 years and 8 months.

  • Whether the indicative sentence of 2 years for the offence of taking a person with intent to gain a psychological advantage (Count 6) was manifestly excessive, thereby rendering the aggregate sentence manifestly excessive
  • Whether Neilson DCJ erred by partially accumulating the aggregate sentence upon the earlier sentence, resulting in an effective overall sentence that was manifestly excessive
  • Whether the partial accumulation undermined or was inconsistent with the findings of special circumstances made by both sentencing judges, given that the effective ratio of non-parole period to head sentence in the combined sentences rose to approximately 72.6 per cent

Decision

The Court granted leave to appeal but dismissed the appeal. Fullerton J (with Payne JA and Bellew J agreeing) found that neither ground of appeal was made out. The aggregate sentence had not been shown to be "unreasonable or plainly unjust."

On the first ground, the Court was not persuaded that the indicative sentence of 2 years for the taking offence under s 86(1)(b) of the Crimes Act was excessive. No error was identified in that indicative sentence, and no basis was established for disturbing the aggregate sentence on this ground.

On the second ground, the applicant argued that the agreed commencement date produced an effective combined non-parole period representing approximately 73 per cent of the effective aggregate head sentence, thereby undermining the special circumstances findings. The Court rejected this reasoning. Each sentencing judge's statutory obligation under s 44(2B) of the Crimes (Sentencing Procedure) Act was to address the ratio between the non-parole period and the head sentence actually being imposed in those proceedings, not by reference to a notional combined sentence. Neilson DCJ had made a valid finding of special circumstances and had adjusted the statutory ratio accordingly in his own sentence.

Payne JA emphasised that Neilson DCJ had addressed the totality principle in fixing the commencement date, as required. The concession by the applicant's own counsel at first instance that the sentence should commence on 15 April 2020 was, in the Court's view, fatal to the totality complaint on appeal. The Court also observed that the period of 1 year and 9 months of supervision in the community upon release to parole remained the same regardless of when the non-parole period was actually served out, and that this period was adequate to serve the rehabilitation and other purposes underpinning the special circumstances findings.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 20 June 2019
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge imposing a second aggregate sentence on an offender already serving a prior sentence must address special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act by reference to the head sentence actually being imposed in those proceedings, not by reference to a notional combined effective sentence
  • Under s 53A(4) of the Crimes (Sentencing Procedure) Act, a later aggregate sentence does not revoke or vary an earlier one, reinforcing that each sentence retains its own structure even where sentences are partially accumulated
  • The totality principle still applies when a sentencing judge fixes the commencement date for a sentence that accumulates on an existing sentence, but compliance with that principle is a separate exercise from the special circumstances analysis
  • A concession by the applicant's counsel at first instance regarding the agreed commencement date for an accumulating sentence may be fatal to a subsequent ground of appeal based on totality
  • In dismissing the appeal, the Court confirmed that the effective non-parole period across accumulated sentences need not mirror the ratio established by each individual special circumstances finding, provided each sentencing judge properly applied the statutory framework to the sentence before them

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 86(1)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 44(2B), 53A(4)
- Criminal Appeal Act 1912 (NSW)

Cases:
- CC v R [2019] NSWCCA 230
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- Zreika v R [2012] NSWCCA 44