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Court of Criminal Appeal 6 May 2020

Park v R

[2020] NSWCCA 90

Sexual offencesAssault & violenceTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE DISCRETIONARY ADJUSTMENT AS SPECIFICALLY INTENDED NO ERROR CRIME

Citation: Park v R [2020] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 6 May 2020
Judges: Bathurst CJ; Fullerton J (dissenting); R A Hulme J

Background

The applicant pleaded guilty in the Local Court to five offences, including aggravated sexual assault, choking with intent to commit an indictable offence, sexual intercourse without consent, intimidation, and common assault. The matters were committed to the District Court for sentence. Additional offences were dealt with on a Form 1 or referred as related offences under s 166 of the Criminal Procedure Act 1986 (NSW).

The District Court imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 8 years. For each offence, the sentencing judge applied a 25 per cent discount for early guilty pleas. The sentencing judge also found special circumstances arising from the applicant having no family in Australia, resulting in a modest adjustment to the statutory non-parole period ratio.

One offence attracted particular attention on appeal: a "take and drive conveyance" charge dealt with as a related offence in the District Court. That offence carried a maximum of 5 years on indictment but a jurisdictional limit of 2 years when dealt with summarily. The sentencing judge imposed 2 years, which implied a pre-discount starting point of 2 years and 8 months, exceeding the jurisdictional ceiling.

  • Whether the sentencing judge erred in failing to give appropriate weight to the finding of special circumstances when adjusting the non-parole period.
  • Whether the aggregate sentence was manifestly excessive.
  • Whether, in applying the guilty plea discount under s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge erred by using a starting point that exceeded the jurisdictional limit applicable to the summary offence.

Decision

Special circumstances: The majority (Bathurst CJ and R A Hulme J) found no error in the sentencing judge's treatment of special circumstances. The adjustment to the statutory ratio was modest, but that was expressly what the judge intended. The sentencing judge had stated that the parole period would not be "significantly greater" than the statutory norm under s 44, and the applicant did not suggest the outcome resulted from arithmetic error or miscalculation.

The jurisdictional limit question: This was the central contested issue. Bathurst CJ and R A Hulme J held that s 22(1) of the Crimes (Sentencing Procedure) Act, which requires a court to impose a lesser penalty "than it would otherwise have imposed", refers to the penalty that would have been imposed absent the constraint of the jurisdictional limit. A sentencing court should first assess the appropriate sentence within the prescribed maximum for the offence, then apply any guilty plea discount, and then reduce the result if it still exceeds the jurisdictional limit. On this approach, using a starting point of 2 years and 8 months and discounting to 2 years was a permissible exercise of the sentencing discretion.

Fullerton J dissented on this point. Her Honour held that the correct construction of s 22(1) requires the court to apply the guilty plea discount to the sentence it would in fact have imposed, having regard to the jurisdictional limit. Because the jurisdictional ceiling constrained what the court could actually impose, the starting point for the discount should not have exceeded 2 years. Her Honour would have resentenced the applicant to an aggregate of 9 years with a non-parole period of 6 years and 7 months.

Manifest excess: The majority was not satisfied that the aggregate sentence was unreasonable or plainly unjust. The offences were serious, there was little mitigation beyond the guilty pleas, the applicant showed no remorse, and rehabilitation prospects were poor. The sentencing judge was alive to the totality principle and made appropriate allowance for concurrence among the most serious offences.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A majority of the Court of Criminal Appeal confirmed that, when sentencing in summary jurisdiction for an offence subject to a jurisdictional limit, a court may assess an appropriate sentence by reference to the full prescribed maximum, apply the guilty plea discount, and then cap the result at the jurisdictional ceiling. The starting point for the discount may therefore exceed that ceiling.
  • The dissent of Fullerton J represents a contrary construction of s 22(1) of the Crimes (Sentencing Procedure) Act: that the guilty plea discount must be applied to the sentence the court would in fact impose, constrained by any applicable jurisdictional limit. This division of opinion signals the question is not settled beyond this decision's majority holding.
  • Under s 22(1), the phrase "lesser penalty than it would otherwise have imposed" was construed by the majority as referring to the sentence that would have been imposed but for the jurisdictional constraint, not the sentence the court was able to impose within that constraint.
  • A finding of special circumstances does not require any particular quantum of adjustment to the non-parole period. A modest adjustment is not in itself an error, provided the sentencing judge expressly intended that result and it was not the product of miscalculation.
  • In dismissing the appeal, the Court confirmed that an aggregate sentence reflecting serious sexual and physical violence offences, with minimal mitigation, called for a substantial sentencing response and was not manifestly excessive in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22, s 44
- Criminal Procedure Act 1986 (NSW), ss 20, 27, 165, 166, 260, 267, 268, Ch 3 Pt 3 Div 7
- Crimes Act 1900 (NSW), ss 37, 61, 61J, 61I, 148, 154A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Key Cases:
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Lapa v R [2008] NSWCCA 331; (2008) 192 A Crim R 305
- Mundine v R [2017] NSWCCA 97
- Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Gordon v R [2018] NSWCCA 54
- Hansford v His Honour Judge Neesham [1995] 2 VR 233
- Canino v Venning (1993) 113 FLR 327