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Court of Criminal Appeal 18 October 2019

GC v R

[2019] NSWCCA 241

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: GC v R [2019] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 18 October 2019
Judges: Payne JA; Wilson J; Ierace J

Background

The applicant, a then 66-year-old man, pleaded guilty on the first day of trial to eight sexual offences against three of his step-daughters. The offending occurred between approximately 1975 and 1983, when each complainant was aged between 11 and 16 years. The charges involved historical provisions of the Crimes Act 1900 (NSW) that have since been repealed and replaced with offences carrying significantly higher maximum penalties.

The applicant had a prior criminal record directly relevant to the same household: in 1984 he was convicted of two counts of carnal knowledge of a fourth step-daughter (SAC) and received wholly concurrent sentences of six years imprisonment with a non-parole period of two years. At sentencing in the District Court, no further material about those earlier offences was placed before the sentencing judge.

The District Court imposed an aggregate sentence of 15 years imprisonment with a non-parole period of nine years. The applicant sought leave to appeal on the ground that the sentencing judge misapplied the totality principle, which requires a court to consider whether an aggregate sentence is proportionate and just when viewed alongside any sentences already served.

  • Whether the sentencing judge erred in applying the principle of totality, particularly in circumstances where the applicant had previously been sentenced for similar sexual offences against another step-daughter in 1984.
  • Whether the sentencing judge had sufficient information about the prior 1984 proceedings to discharge the obligation to consider totality.
  • Whether, if error was established, a lesser sentence was nevertheless warranted in law.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in the application of the totality principle. The error arose because the sentencing judge lacked sufficient information about the 1984 sentence to properly assess whether the aggregate sentence, when viewed alongside the earlier sentence already served, remained proportionate. The 1984 reasons for sentence had not been placed before the sentencing judge, leaving the court unable to properly engage with what totality required in this case.

On the question of re-sentencing, the Court admitted additional material on appeal: an affidavit annexing the 1984 reasons for sentence. The Court then conducted its own assessment of what the totality principle required, taking into account all findings favourable to the applicant made below, consistent with the approach required by the High Court in DL v R (2018) and Kentwell v The Queen (2014).

Having completed that re-exercise of the sentencing discretion, the Court concluded that it would have imposed a sentence longer than the one originally imposed. Because the re-exercise produced a higher outcome rather than a lesser one, no resentencing order was made. The Court recorded that finding without specifying the hypothetical sentence it would have imposed, following the approach described in Abdulrahman v R [2016] NSWCCA 192.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle requires a sentencing court to have adequate information about prior sentences before it can properly assess whether an overall sentence is proportionate, particularly where the earlier offending is closely related to the matter being sentenced.
  • Where a sentencing judge errs in applying the totality principle due to an absence of material about earlier proceedings, that constitutes a sentencing error capable of grounding an appeal, even if the ultimate sentence is not disturbed.
  • In re-exercising the sentencing discretion after error is established, the Court of Criminal Appeal is not required to resentence the applicant if it determines that no lesser sentence is warranted. Following Kentwell v The Queen and Abdulrahman v R, it is sufficient to record that conclusion without specifying the hypothetical sentence that would have been imposed.
  • All findings favourable to an applicant made at first instance are generally accepted on appeal in the absence of a Crown challenge, reflecting the High Court's guidance in DL v R that the interests of justice do not ordinarily permit a party to run a new or different case on appeal.
  • Granting leave to appeal does not guarantee a reduction in sentence. Where the appellate court determines it would have imposed a higher sentence, the appeal is dismissed and the original sentence stands.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25A, 25AA, 33
- Sentencing Act 1989 (NSW)
- Crimes Act 1900 (NSW) (repealed provisions: ss 61D(1), 71, 73, 76, 76A, 61E(1), 61E(2))

Cases:
- Abdulrahman v R [2016] NSWCCA 192
- DL v R (2018) 358 ALR 666; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Todd [1982] 2 NSWLR 517