AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 29 March 2019

McClelland v R

[2019] NSWCCA 59

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: McClelland v R [2019] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judges: Macfarlan JA, Fullerton J (with reasons), Bellew J

Background

The applicant was convicted after trial in the District Court on five counts: one count of sexual intercourse without consent (s 61I, Crimes Act 1900), two counts of aggravated sexual intercourse without consent involving the reckless infliction of actual bodily harm (s 61J(1)), and two counts of detaining a person for advantage (s 86(1)). The offences arose from two separate incidents involving a woman with whom the applicant was in an intermittent intimate relationship: one occurring in September 2012 and another in February 2014.

The sentencing judge, Baly SC DCJ, imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years. Indicative sentences ranged from 3 years for the detention offences up to 11 years (with a 6-year non-parole period) for the most serious count, which involved penile-anal intercourse and caused three lacerations to the complainant's anus.

The applicant sought leave to appeal on three grounds, all directed at the aggregate sentence.

  • Whether the sentencing judge made findings as to objective seriousness that contradicted concessions made by the Crown during submissions
  • Whether the sentencing judge erred independently in her assessment of objective seriousness
  • Whether the aggregate sentence of 12 years was unreasonable or plainly unjust, having regard to the totality of the criminality

Decision

Ground 1: Crown concessions and objective seriousness

The applicant contended that the Crown's sentencing submissions amounted to binding concessions placing certain counts below the mid-range of objective seriousness, which the sentencing judge then impermissibly exceeded. The Court of Criminal Appeal rejected this characterisation. The Court held that characterising the Crown's remarks as concessions was strained and that the submissions, read properly, did not constitute unambiguous concessions of the kind that would bind the court. The sentencing judge was entitled to make her own assessment of objective seriousness on the evidence and was not constrained by the Crown's framing.

Ground 2: Independent error in objective seriousness

The Court found no independent error in the sentencing judge's assessment of objective seriousness for any of the counts. The offending on Count 3, in particular, involved sustained sexual violence causing significant physical injury and considerable pain to the complainant, and the indicative sentence of 11 years was open on the facts.

Ground 3: Manifestly excessive aggregate sentence

The Court confirmed the applicable test for challenging an aggregate sentence: the question is whether the aggregate sentence, viewed as a reflection of total criminality, is unreasonable or plainly unjust. Indicative sentences are not themselves amenable to appeal. The Court also rejected the proposition that the offending's occurrence within an intimate relationship reduced its objective seriousness, citing R v Cortese [2013] NSWCCA 148. Having regard to the gravity of the individual offences and the applicant's subjective case, the Court found the aggregate sentence of 12 years with a 7-year non-parole period was neither unreasonable nor plainly unjust.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Crown submissions at sentence do not automatically constitute binding concessions on objective seriousness; the court must assess whether remarks were unambiguous and clearly intended as concessions before treating them as such.
  • A sentencing court retains the independent function of assessing objective seriousness and is not required to adopt the Crown's characterisation unless a genuine, unambiguous concession has been made.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that challenges to an aggregate sentence must focus on whether the aggregate is unreasonable or plainly unjust as a reflection of total criminality, not on whether individual indicative sentences were individually excessive.
  • No reduction in objective seriousness arises merely because sexual offences were committed in the context of an intermittent intimate relationship between offender and complainant.
  • Where an aggregate sentence is challenged as manifestly excessive, and the foundational complaint is that indicative sentences overstated objective seriousness, that ground will fail if no error in the assessment of objective seriousness is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 86(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Battersby v R [2018] NSWCCA 141
- Carroll v The Queen [2009] HCA 13
- Chong v R [2017] NSWCCA 185
- DL v The Queen [2018] HCA 32
- DN v R [2016] NSWCCA 252; 92 NSWLR 600
- Kerr v R [2016] NSWCCA 218
- Newman v R [2018] NSWCCA 208
- R v Cortese [2013] NSWCCA 148
- R v Speechley [2012] NSWCCA 130
- Salafia v R [2015] NSWCCA 141
- Simpson v R [2014] NSWCCA 23
- Stojanovski v R [2013] NSWCCA 334