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Court of Criminal Appeal 20 December 2019

Elwood v R

[2019] NSWCCA 315

Sexual offencesDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL GUILTY PLEAS

Citation: Elwood v R [2019] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judges: Gleeson JA, Walton J, Fullerton J (judgment by Fullerton J, with whom Gleeson JA and Walton J agreed)

Background

The applicant, then aged 18 at the time of the primary offence, pleaded guilty in the District Court to one count of sexual intercourse without consent (s 61I, Crimes Act 1900) and a related breach of an apprehended domestic violence order (ADVO). The offending occurred against his partner during an incident at the family home in Dubbo on 10 April 2017. A common assault on the same occasion was taken into account on a Form 1.

Separately, the applicant had been sentenced in the Local Court for attempting to procure a child under 16 for unlawful sexual activity (s 66EB, Crimes Act 1900), arising from text messages sent to a 15-year-old relative in January 2018. That Local Court sentence was confirmed on appeal to the District Court, which also structured the District Court aggregate sentence to run partially cumulative upon it.

The District Court imposed an aggregate sentence of 4 years and 6 months with a non-parole period of 3 years, having found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the overall effective sentence failed to properly reflect that special circumstances finding.

  • Whether the sentencing judge erred in assessing the objective seriousness of the sexual intercourse without consent offence
  • Whether the sentencing judge erred in his approach to the applicant's intellectual disability as a mitigating factor
  • Whether the sentencing judge erred by failing to give effect to his finding of special circumstances in the overall effective sentence
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal was satisfied that the third ground of appeal was made out. The sentencing judge had found special circumstances, warranting a reduced ratio between the non-parole period and the balance of term. However, when the partial accumulation of the Local Court sentence was factored in, the resulting overall effective sentence produced a ratio of 70 percent, which did not adequately reflect the special circumstances finding across the total effective term. This constituted an error requiring the Court to re-sentence.

Because the third ground was established and re-sentencing was required, the Court dealt with grounds one and two in summary fashion and did not need to address ground four (manifest excess) at all. On re-sentencing, the Court applied totality principles and structured the sentences so that the overall effective term was 3 years and 6 months with a non-parole period of 2 years.

The revised aggregate sentence for the District Court offences was set at 3 years and 2 months with a non-parole period of 1 year and 8 months. The indicative sentence for the principal offence of sexual intercourse without consent was 3 years with a non-parole period of 18 months, and 9 months for the ADVO breach. A reduced degree of accumulation was applied between the aggregate sentence and the Local Court sentence compared with what the sentencing judge had ordered.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentence imposed in the District Court on 6 December 2018 is quashed
  • In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 3 years and 2 months, comprised of a non-parole period of 1 year and 8 months, commencing 3 August 2018, with the non-parole period expiring 2 April 2020 and the balance of term expiring 2 October 2021

Key Takeaways

  • Where a sentencing judge finds special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, that finding must be given meaningful effect not only in the sentence for the principal offence but across the overall effective sentence, including where partial accumulation with other sentences is ordered.
  • A finding of special circumstances can be undermined in practice by the structural mechanics of accumulation: if partial accumulation restores the non-parole period to balance of term ratio toward the statutory norm, the special circumstances finding may be rendered ineffective.
  • In dismissing grounds one and two summarily, the Court of Criminal Appeal confirmed that once an error requiring re-sentencing is established on one ground, remaining grounds may be addressed briefly without independent determination where the error already triggers the re-sentencing exercise.
  • Totality principles governed the re-sentencing exercise, requiring the Court to consider the cumulative impact of all sentences the applicant was serving, including the confirmed Local Court sentence, and to calibrate accumulation accordingly.
  • An applicant's intellectual disability and background are relevant mitigating factors in sentencing for serious sexual offences, consistent with the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571 and Munda v Western Australia (2013) 249 CLR 600, though those factors did not ultimately alter the outcome given the re-sentencing was driven by the special circumstances error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61, 66EB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(1), 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), ss 33, 166
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Alkanaan v R [2017] NSWCCA 56
- Battersby v R [2018] NSWCCA 141
- CC v R [2019] NSWCCA 229
- Canzius v R [2017] NSWCCA 177
- Caristo v R [2011] NSWCCA 7
- Doe v R [2013] NSWCCA 248
- Hazell v R [2015] NSWCCA 26
- Houri v R [2013] NSWCCA 279
- McClelland v R [2019] NSWCCA 59
- Sabongi v R [2015] NSWCCA 25