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Court of Criminal Appeal 8 April 2020

Corliss v R

[2020] NSWCCA 65

Sexual offences

Citation: Corliss v R [2020] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 8 April 2020
Judge(s): Brereton JA; Johnson J; Lonergan J

Background

The appellant was convicted and sentenced for historical child sexual assault offences, including indecent assault and carnal knowledge, committed decades before the sentencing hearing. The sentencing judge proceeded on the basis that the offender was to be sentenced in accordance with the law and sentencing practices applicable at the time the offences were committed. That approach meant acknowledging that non-parole periods during the relevant historical period were typically set at between 35% and 50% of the head sentence.

The sentencing judge stated indicative sentences and indicative non-parole periods for each offence, each approximating 50% of the relevant head sentence. However, the aggregate non-parole period ultimately imposed represented approximately 62% of the aggregate head sentence of seven years, with no explanation in the remarks on sentence for that higher proportion.

The appellant sought leave to appeal against sentence on three grounds, including that the sentencing judge failed to properly assess objective seriousness, erred in her starting points for certain sequences, and failed to give full effect to historical sentencing practices when fixing the non-parole period. An additional motion lodged by the appellant in person, after the hearing, was also considered.

  • Whether the sentencing judge failed to adequately assess the objective seriousness of the offences
  • Whether the sentencing judge erred in setting the starting points for sequences 6 and 7
  • Whether the sentencing judge failed to give full effect to historical sentencing practices when determining the non-parole period, resulting in an anomalous aggregate non-parole period
  • How s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) (which requires courts to apply current sentencing standards to historical child sexual abuse offences) interacts with s 6(3) of the Criminal Appeal Act 1912 (NSW) when the Court of Criminal Appeal re-sentences an offender who was originally sentenced before s 25AA commenced

Decision

The full court dismissed the appeal, with leave granted. The majority (Johnson J and Lonergan J) found none of the three grounds of appeal established. On grounds 1 and 2, all three judges agreed there was no error in the sentencing judge's assessment of objective seriousness or in her determination of starting points.

On ground 3, Brereton JA dissented. His Honour found that the sentencing judge's stated intention to apply historical sentencing practices, combined with indicative non-parole periods each set at approximately 50% of the indicative head sentences, pointed inexorably to an aggregate non-parole period of 50% of the aggregate sentence. The resulting 62% proportion was unexplained and, in his Honour's view, reflected an inadvertent slip in applying the same accumulation element to both the head sentence and the non-parole period. Brereton JA would have reduced the non-parole period to three years and six months (50% of seven years). The majority did not find this error established, and the appeal was dismissed.

A separate and significant area of disagreement arose between the judges on the operation of s 25AA, which (introduced in 2018) directs courts to apply current sentencing standards to historical child sexual abuse offences. Because the majority dismissed all grounds of appeal, the question of whether s 25AA applied on a re-sentencing by the Court of Criminal Appeal did not require resolution. Nonetheless, Brereton JA expressed a considered view in dissent that s 6(3) of the Criminal Appeal Act 1912 directs the Court of Criminal Appeal to pass the sentence that "should have been passed" at the time of the original sentencing, not the sentence that would be appropriate if the offender appeared for sentence at the time of the appeal. On that construction, s 25AA would not apply to a re-sentencing following a successful appeal where the original sentence was imposed before s 25AA commenced. The majority reached the contrary view, finding that s 25AA would apply in such a re-sentencing. This aspect of the judgment is expressly non-determinative, as the question did not need to be resolved.

The personal motion lodged by the appellant after the hearing was not entertained, given that solicitors remained on the record and disavowed it.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing courts dealing with historical child sexual abuse offences are required to take into account the sentencing practices applicable at the time the offences were committed, including the fact that non-parole periods under the Parole of Prisoners Act 1966 were typically one-third to one-half of the head sentence. However, as confirmed in Denham v R, this is not a mechanical formula: the non-parole period must still represent the minimum period required to be served having regard to all purposes of justice.

  • Where a sentencing judge expressly states an intention to apply historical sentencing practices and then fixes indicative non-parole periods consistent with that approach, an unexplained departure to a substantially higher proportion in the aggregate sentence may constitute a reviewable error. Brereton JA found such an error here, though he was in the minority.

  • The Court of Criminal Appeal left unresolved whether s 25AA of the Crimes (Sentencing Procedure) Act 1999 applies when the Court re-sentences an offender following a successful appeal, where the original sentence was imposed before s 25AA commenced. Brereton JA expressed a clear view in dissent that it does not; the majority took the contrary view. Practitioners should treat this question as genuinely open.

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal's task on a re-sentencing is to pass the sentence that "should have been passed" by the sentencing court at the time. Brereton JA reasoned that this language anchors re-sentencing to the law as it stood at the time of the original sentence, not the law prevailing at the time of the appeal.

  • A motion lodged personally by an appellant after the hearing of an appeal will not be entertained where solicitors remain on the record and decline to press it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 44
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Interpretation Act 1987 (NSW)
- Parole of Prisoners Act 1966 (NSW)

Cases
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213
- Denham v R [2016] NSWCCA 309
- AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51
- GRD v R [2009] NSWCCA 149
- MJL v R [2007] NSWCCA 261
- Featherstone v R [2008] NSWCCA 71
- Bradbury v R [2008] NSWCCA 93
- Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51
- House v The King (1936) 55 CLR 499
- MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316
- AK v R [2016] NSWCCA 238
- Connell v R [2019] NSWCCA 70
- Franklin v R [2019] NSWCCA 325