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Court of Criminal Appeal 20 December 2019

PW v R

[2019] NSWCCA 298

Sexual offences
CRIME SEXUAL OFFENCES AGGREGATE SENTENCE IMPOSED

Citation: PW v R [2019] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judge(s): Basten JA; Macfarlan JA; Campbell J

Background

The applicant was convicted by a jury in the District Court on 11 counts of sexual offences committed against his daughter during a single episode lasting approximately two hours. The offences included aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW) and multiple counts of aggravated indecent assault under s 61M(1). The complainant was 16 years old at the time of the offending.

The sentencing judge imposed an aggregate sentence of 10 years imprisonment, comprising a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months. In doing so, the judge indicated putative individual sentences for each offence, as required under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The four most serious offences each attracted an indicated individual sentence of 9 years imprisonment.

The applicant sought leave to appeal against the aggregate sentence, raising two grounds: that the sentencing judge erred in grouping offences into categories and assigning the same indicative sentence to each offence within a category, and that the judge erred in declining to find special circumstances when setting the non-parole period.

  • Whether the sentencing judge erred by grouping the 11 offences into categories and nominating identical indicative sentences for each offence within a category, rather than assessing each offence entirely individually.
  • Whether the sentencing judge erred in declining to find special circumstances to reduce the non-parole period relative to the head sentence, on the basis that doing so would amount to double-counting.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed both grounds. On the first ground, the Court found no error in the sentencing judge's approach of grouping like offences and assigning a common indicative sentence within each group. The offences arose from a single episode of offending described by the sentencing judge as brief but intense, and the moral culpability underlying several offences overlapped significantly. Basten JA added that demanding highly granular individual sentence explanations in such circumstances would largely defeat the practical benefit of aggregate sentencing under s 53A.

Basten JA elaborated that the indicative sentences, in this case, provided limited transparency precisely because the offending arose from a single episode where culpability could not be neatly partitioned. He noted that some of the lesser offences would have attracted non-custodial penalties in isolation, and that charging 12 counts from the one episode may have inflated the apparent total of indicative sentences relative to the aggregate actually imposed. None of this, however, constituted error.

On the second ground, the Court confirmed that a finding of special circumstances is not warranted merely because a sentencing judge took a matter into account in fixing the head sentence. The applicant had pointed to his health issues as justifying both a reduced head sentence and a further reduction in the non-parole period. The Court held that, because his health issues were already reflected in the head sentence, applying them again to shorten the non-parole period would constitute impermissible double-counting. The applicant also argued he required extended post-release supervision for rehabilitation purposes, but the sentencing judge had rejected that factual finding and the applicant did not challenge it on appeal.

Campbell J added that an outcome appearing unexpectedly stern does not equate to manifest excess, and that the aggregate sentence in fact incorporated a high degree of concurrency across all offence categories.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must indicate the sentence that would have been imposed for each offence if sentenced separately, but this requirement does not demand identical analytical rigour for every individual offence where the offending arises from a single episode with significant overlapping culpability.
  • Grouping offences into categories and nominating the same indicative sentence for each offence within a category is not, of itself, an error, particularly where the charges arise from a single episode and the moral culpability substantially overlaps.
  • A finding of special circumstances to reduce the non-parole period is not warranted where the factor relied upon has already been taken into account in setting the head sentence; to do so would constitute double-counting.
  • The apparent discrepancy between the sum of indicated individual sentences and the aggregate actually imposed does not demonstrate error: the aggregate sentence mechanism was specifically designed to avoid the mechanical accumulation of individual sentences, and a high degree of concurrency is a legitimate and expected feature of aggregate sentencing for closely related offending.
  • An aggregate sentence that appears unexpectedly stern on its face does not equate to manifest excess; a successful challenge on that basis requires demonstrating that the sentence was manifestly excessive, a threshold the applicant did not attempt to meet.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61O(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 53A

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Khawaja v R [2014] NSWCCA 80
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Martin v R [2013] NSWCCA 24
- Nguyen v R [2019] NSWCCA 87
- R v AA [2017] NSWCCA 84
- R v BA [2014] NSWCCA 148
- Kerr v R [2016] NSWCCA 218
- Zreika v R [2012] NSWCCA 44
- Mulato v R [2006] NSWCCA 282
- Sivell v R [2009] NSWCCA 286
- R v Fidow [2004] NSWCCA 172