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Court of Criminal Appeal 21 May 2020

AM v R

[2020] NSWCCA 101

Sexual offences
CRIMINAL LAW SISTER AGGREGATE SENTENCE NO EXPLANATION ERROR FOUND APPLICANT RESENTENCED

Citation: AM v R [2020] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 21 May 2020
Judge(s): R A Hulme J, Fagan J, Hidden AJ

Background

The applicant, a 19-year-old man, was committed to the District Court for sentence on five principal sexual offences and a series of additional offences dealt with on Form 1 documents. All offences were committed against his 10-year-old half-sister, the majority occurring over a single weekend in February 2016. The victim and applicant shared a common father; the applicant had only recently resumed contact with that side of his family.

The District Court imposed an aggregate sentence of 8 years and 3 months' imprisonment with a non-parole period of 6 years, commencing 6 October 2017. The sentencing judge found special circumstances (a finding that can justify departing from the statutory ratio between the non-parole period and the head sentence) but departed from that ratio only minimally and without explanation.

The applicant sought leave to appeal against the sentence, filing an application for leave out of time. The Crown did not oppose an extension of time if the application were found to have merit.

  • Whether the sentencing judge erred by finding special circumstances but failing to give meaningful effect to that finding in fixing the non-parole period
  • Whether the sentencing judge was required to provide reasons for departing only minimally from the statutory ratio despite a finding of special circumstances
  • If error was established, what the correct sentence should be on resentencing, having regard to the applicable discounts for guilty pleas and the applicant's disclosure of penetration

Decision

The Court of Criminal Appeal upheld the appeal on the first ground. The sentencing judge had found special circumstances but the resulting non-parole period did not reflect any tangible or practical adjustment. Fagan J described the departure as not giving "meaningful effect" to the finding, and the judge had provided no reasons for treating the departure as minimal. Hidden AJ, with whom the other members of the Court agreed, identified this as appellable error.

On resentencing, the Court applied a 25% discount to all offences for the applicant's guilty pleas. A separate additional discount of 10% was applied to the two most serious offences (sexual intercourse with a person aged between 10 and 14) to reflect the applicant's disclosure of the penetration, producing a total reduction of 35% on those charges. This approach followed the principle in R v Ellis (1986) 6 NSWLR 603 and the requirement confirmed in R v AA [2017] NSWCCA 84 that such a discount be applied separately.

The Court fixed an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years, representing approximately 60% of the head sentence across the principal offences. This ratio gave genuine effect to the finding of special circumstances, reflecting the applicant's need for extended supervised release following a lengthy custodial term for offences of this nature.

Orders Made

  • Time for filing the application for leave to appeal extended to 11 December 2019
  • Leave to appeal granted
  • Appeal allowed
  • District Court sentence quashed
  • Applicant resentenced to an aggregate term of 6 years and 6 months' imprisonment, commencing 6 October 2017 and expiring 5 April 2024
  • Non-parole period of 4 years, expiring 5 October 2021
  • Applicant eligible for release on parole on 6 October 2021

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 requires more than a nominal departure from the statutory ratio between the non-parole period and the head sentence; the departure must be tangible and practical.
  • Where a sentencing judge departs only minimally from the statutory ratio despite finding special circumstances, the absence of reasons for that minimal departure constitutes appellable error.
  • Under R v Ellis and as confirmed in R v AA, a discount for an offender's disclosure of penetration is a recognised mitigating factor and must be applied as a separate component, distinct from the guilty plea discount.
  • In resentencing, the Court of Criminal Appeal fixed a non-parole period at approximately 60% of the aggregate head sentence to give genuine content to the special circumstances finding.
  • Extension of time to file an application for leave to appeal will be considered where the applicant provides an explanation by affidavit and the Crown does not oppose the extension if the application has merit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- CM v R [2013] NSWCCA 341
- Jonson v R [2016] NSWCCA 286, (2016) 263 A Crim R 268
- MD v R [2015] NSWCCA 37
- R v AA [2017] NSWCCA 84
- R v Ellis (1986) 6 NSWLR 603
- Sefian v R [2018] NSWCCA 194