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Court of Criminal Appeal 8 November 2019

Thomas v R

[2019] NSWCCA 265

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS PAROLE PERIOD SET ASIDE INDIVIDUAL SENTENCES

Citation: Thomas v R [2019] NSWCCA 265
Court: Court of Criminal Appeal, New South Wales
Date: 8 November 2019
Judges: Payne JA (principal judgment); Fullerton J and Adamson J (agreeing)

Background

The applicant was a Year 6 teacher and Sports Co-ordinator at a Catholic primary school who was convicted by a jury on 15 counts arising from sexual offending against four child students between 2015 and 2016. The offences comprised 13 counts of indecent assault (contrary to s 61M(2) of the Crimes Act 1900 (NSW)) and 2 counts of aggravated incitement to an act of indecency (contrary to s 61O(1)). All four victims were primary school children, aged 11 or 12 at the time of the offending.

At sentencing in the District Court in April 2018, Herbert DCJ imposed separate individual sentences for each of the 15 counts. After applying the totality principle (which requires a sentencing court to stand back and ensure that the cumulative effect of multiple sentences is not disproportionate to the overall criminality), the effective sentence was 11 years imprisonment with a non-parole period of 8 years, commencing 19 July 2016.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal on the single ground that each of the sentences imposed, including the overall effective sentence, was manifestly excessive.

  • Whether the individual sentences imposed for each of the 15 counts were manifestly excessive
  • Whether the overall effective sentence of 11 years was manifestly excessive
  • Whether the sentencing court's approach of imposing individual sentences, rather than an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), contributed to error

Decision

Payne JA (with Fullerton J and Adamson J agreeing) granted leave to appeal and allowed the appeal, finding that most of the individual sentences were manifestly excessive. While the individual sentences, viewed in isolation against the standard non-parole period framework and the objective seriousness findings made by the sentencing judge, were each too high, the court found that the overall effective sentence of 11 years with an 8-year non-parole period was not itself manifestly excessive. That total remained appropriate given the gravity and multiplicity of the offending.

The Court of Criminal Appeal noted that this case was "eminently well suited" to an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. Rather than re-imposing 15 individual sentences, the court substituted an aggregate sentence covering all counts. As part of that process, Payne JA set out indicative sentences for each count, substantially lower than those originally imposed.

The court also remarked on a procedural peculiarity: despite there being a single indictment, the District Court had recorded the matter across four separate court files, one per victim. The Court of Criminal Appeal addressed this by treating a single notice of appeal as encompassing all four files.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • All 15 individual sentences imposed by Herbert DCJ on 20 April 2018 quashed
  • In lieu of those sentences, an aggregate sentence of 11 years imprisonment imposed, commencing 19 July 2016 and expiring 18 July 2027, with a non-parole period of 8 years expiring 18 July 2024
  • These orders applied across all four court files (2016/162278; 2016/218952; 2016/218978; 2016/218982)

Key Takeaways

  • Most of the individual sentences imposed at first instance were manifestly excessive when assessed against the sentencing judge's own findings of objective seriousness and the applicable statutory maximum and standard non-parole period for each offence.
  • Although individual sentences were found to be excessive, the Court of Criminal Appeal confirmed that the total effective sentence of 11 years imprisonment with an 8-year non-parole period was not manifestly excessive in light of the overall pattern of offending across four victims.
  • Where multiple counts in a single indictment arise from related offending, s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits an aggregate sentence, and the Court of Criminal Appeal identified this case as one that was particularly well suited to that approach.
  • Re-sentencing by way of an aggregate sentence requires the court to set out indicative sentences for counts that carry a standard non-parole period, even where those indicative terms are not individually enforceable.
  • A single notice of appeal was treated as sufficient to challenge sentences recorded across multiple court files where those files all arose from a single indictment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(5A), 53A
- Criminal Appeal Act 1912 (NSW), s 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Bray v R [2018] NSWCCA 301
- Clinch v R (1994) 72 A Crim R 301
- Corby v R [2010] NSWCCA 146
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DL v The Queen [2018] HCA 32; 92 ALJR 764
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jarvis v The Queen (1993) 20 WAR 201
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nantahkum v R [2013] ACTCA 40; 279 FLR 148
- R v Barry [2011] QCA 119
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159