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Court of Criminal Appeal 9 June 2020

Waterstone v R

[2020] NSWCCA 117

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL OFFENCES AGAINST STEPDAUGHTER SENTENCING JUDGE DID NOT SET NON PAROLE PERIOD WHEN A FIXED SENTENCE SHOULD BE IMPOSED

Citation: Waterstone v R [2020] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 9 June 2020
Judge(s): Johnson J, N Adams J, Ierace J

Background

The applicant (referred to by a pseudonym to protect his stepdaughter's identity) was convicted at trial of sexual offences committed against his stepdaughter. He was sentenced in the District Court on 5 July 2019 on both State and Commonwealth charges: two counts of aggravated acts of indecency towards a person under 16 years of age (State offences), and four counts of using a carriage service in an offensive way (Commonwealth offences).

The sentencing judge imposed fixed terms of imprisonment without setting a non-parole period for the State offences and without making a recognizance release order (the Commonwealth equivalent of parole) for the Commonwealth offences. The applicant sought leave to appeal against the sentences, arguing, among other things, that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by failing to set a non-parole period for the State offences under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred by failing to make a single recognizance release order covering all Commonwealth offences under the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred in finding that abuse of trust was an aggravating factor
  • Whether the sentences imposed were manifestly excessive
  • What the proper approach is when a court imposes a fixed term rather than a head sentence with a non-parole period, under both NSW and Commonwealth legislation

Decision

The Court granted leave to appeal and allowed the appeal, quashing the sentences imposed by the District Court and re-sentencing the applicant. N Adams J delivered the primary judgment, with Johnson J and Ierace J agreeing on the orders while offering observations on discrete aspects of the reasoning.

A central procedural deficiency identified by the Court was the sentencing judge's failure to make a recognizance release order in respect of the Commonwealth offences. The Commonwealth regime under the Crimes Act 1914 (Cth) requires a sentencing court, when it determines that a recognizance release order is not appropriate, to articulate proper reasons directed at the specific factors in s 19AC(4), rather than simply reciting the statutory formula. Johnson J found that the reasons given by the sentencing judge for declining to make such an order failed to do this.

On the question of whether a fixed term under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) represents the equivalent of a notional non-parole period or a head sentence, the Court declined to resolve the issue, as it was not necessary to do so and the parties had not been invited to make submissions on it. Johnson J also noted that any proper analysis of this question would now need to account for the 2016 amendments to s 45, which inserted subsections (1A) and (1B) to preserve the integrity of the standard non-parole period scheme when a court opts for a fixed term. Ierace J noted, without being conclusive, a degree of persuasion toward the view that a fixed term reflects the equivalent of the non-parole period.

On the question of objective seriousness and aggravation, including the abuse of trust finding, the Court's re-sentencing resulted in reduced but still substantial terms of imprisonment, reflecting the serious nature of the offending within the context of a family relationship.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentences quashed and replaced with the following aggregate sentences:
  • Counts 1-2 (State offences): Aggregate term of 2 years and 3 months, commencing 13 October 2018 and expiring 12 January 2021, with a non-parole period of 18 months expiring 12 April 2020.
  • Counts 3-6 (Commonwealth offences): Aggregate term of 20 months, commencing 13 April 2020 and expiring 12 December 2021, with a recognizance release order directing release on 12 January 2021 after serving 9 months, with the applicant to be of good behaviour for 11 months.
  • Indicative individual sentences: Count 1 and 2, 2 years each; Counts 3 to 6, 18 months each.

Key Takeaways

  • When a sentencing court declines to make a recognizance release order for Commonwealth offences under s 19AC(4) of the Crimes Act 1914 (Cth), the reasons given must specifically engage with the factors in that provision and the circumstances of the case; a bare recitation of the statutory formula is insufficient.
  • The question of whether a fixed term imposed under s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) equates to a notional non-parole period or a head sentence remains unresolved by this Court, which declined to determine it in the absence of party submissions and in light of the 2016 amendments to s 45.
  • Following the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016, s 45(1A) now requires that where a court imposes a fixed term for an offence carrying a standard non-parole period, the fixed term must be at least as long as the non-parole period the court would otherwise have set.
  • Under the Commonwealth sentencing framework, fixing a recognizance release order requires the sentencing court to weigh all factors in s 16A of the Crimes Act 1914 (Cth), including the deterrent and punitive purposes of the sentence, consistently with the High Court's approach in Hili v The Queen.
  • No consensus emerged among the three judges on whether a fixed term represents a non-parole period equivalent or a full head sentence, signalling that the issue remains open for determination in a suitable future case with the benefit of full argument.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21A(2)(k), 44, 45 (including the 2016 amendments inserting ss 45(1A) and (1B))
- Crimes Act 1914 (Cth), ss 16A, 17A(3), 19AB(3), 19AC, 19AH
- Criminal Code Act 1900 (Cth), s 474.17(1)
- Crimes Act 1900 (NSW), s 61O(3)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016

Key Cases:
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Power v R; Selenski v R; Lyons v R (1974) 131 CLR 623; [1974] HCA 26
- Hancock v R [2012] NSWCCA 200
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Beavis v R [2018] NSWCCA 248
- Magro v R [2020] NSWCCA 25
- Kannis v R [2020] NSWCCA 79
- Franklin v R [2016] NSWCCA 319
- Collier v R [2012] NSWCCA 213
- MRW v R [2011] NSWCCA 260