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33
Court of Criminal Appeal 8 May 2020

Ibbotson (a pseudonym) v R

[2020] NSWCCA 92

Sexual offences
CRIME SENTENCE APPEAL FAILURE TO SPECIFY NON PAROLE PERIOD MANIFEST EXCESS

Citation: Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Court: Court of Criminal Appeal
Date: 8 May 2020
Judge(s): Leeming JA at [1]; Rothman J at [22]; N Adams J at [127]

Background

The applicant pleaded guilty on the day of trial to five counts of aggravated indecent assault against his eight-year-old granddaughter, committed over one evening and the following morning in mid to late 2009. Each offence carried a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years.

The District Court imposed an aggregate sentence of 6 years and 3 months, with a non-parole period of 4 years. The sentencing judge arrived at that figure by first determining a notional aggregate of 7 years and then applying a discount of slightly more than 10 percent to reflect the late guilty pleas. Critically, the judge applied that discount to the aggregate figure rather than to each indicative (individual) sentence before arriving at the aggregate.

The applicant sought leave to appeal on the grounds that the sentencing judge had misapplied the statutory requirements for aggregate sentences, and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying the guilty plea discount to the aggregate sentence rather than to each indicative sentence, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge erred by failing to specify a non-parole period for each indicative sentence, as required by s 54B(4) of the same Act.
  • Whether the aggregate sentence was manifestly excessive.

Decision

The Court unanimously held that Ground 1 was made out. Section 53A(2)(b) requires the guilty plea discount to be applied to each indicative sentence individually, not to the aggregate. A consistent line of Court of Criminal Appeal authority supported this position, and the Crown's reliance on SHR v R as authority for the proposition that such an error does not necessarily infect the aggregate sentence was rejected. Both Leeming JA and N Adams J explained that SHR had been misread: it did not establish that a failure to comply with s 53A(2)(b) is harmless, only that such a failure is not automatically determinative where other circumstances neutralise the error.

Leeming JA gave a detailed explanation of why applying the discount correctly to each indicative sentence matters beyond mere formal compliance. Because totality assessment requires the sentencing judge to consider the extent to which the sentence for one offence can comprehend the criminality of others, that assessment must be conducted by reference to the actual discounted individual sentences. Performing the arithmetic on an undiscounted aggregate and then discounting the result risks distorting the totality analysis in a way that is not merely theoretical.

Ground 2, concerning the failure to nominate a non-parole period for each indicative sentence, was not upheld. Consistent with JM v R and other authorities, the Court confirmed that while such a failure is an irregularity, it does not necessarily demonstrate that the aggregate sentence itself is in error.

On manifest excess, the Court found the original sentence was too high having regard to totality, the applicant's age, prior good character, and other subjective factors, and resentenced accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed by the District Court on 24 April 2019 was quashed.
  • In its place, the Court imposed an aggregate sentence of 5 years and 6 months' imprisonment commencing 23 March 2019 and concluding 22 September 2024, with a non-parole period of 2 years and 9 months concluding 22 December 2021.
  • The applicant became first eligible for parole on 22 December 2021.

Key Takeaways

  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea discount must be applied to each indicative sentence individually before the aggregate is determined; applying it only to the notional aggregate constitutes a patent error.
  • The Court of Criminal Appeal rejected the Crown's argument that SHR v R [2014] NSWCCA 94 stood for the proposition that a s 53A(2)(b) failure does not necessarily cause the aggregate sentence to miscarry; the court distinguished the circumstances in which SHR was decided.
  • Although arithmetic produces the same result whether a discount is applied before or after addition, the sentencing process is not purely arithmetical: the totality assessment depends on the actual discounted individual sentences, making it essential that the discount is applied at the indicative stage.
  • Failing to specify a non-parole period for each indicative sentence under s 54B(4) is an irregularity but does not, without more, establish that the aggregate sentence itself is erroneous, consistent with JM v R [2014] NSWCCA 297.
  • In resentencing, the Court reduced the aggregate sentence from 6 years 3 months to 5 years 6 months, reflecting the proper application of totality alongside the applicant's age, prior good character, and other subjective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 45(1A), 53A, 54B, 101A
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Schedule 1, item 10
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Berryman v R [2017] NSWCCA 297
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elsaj v R [2017] NSWCCA 124
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kentwell v The Queen (No 2) [2015] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- SHR v R [2014] NSWCCA 94; 241 A Crim R 544