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Court of Criminal Appeal 10 September 2021

Hall v R

[2021] NSWCCA 220

Sexual offencesAssault & violenceDomestic & family violence
CRIME APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE GUILTY PLEA TOTALITY CRUSHING SENTENCE

Citation: Hall v R [2021] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 10 September 2021
Judge(s): Leeming JA; R A Hulme J; Campbell J

Background

The applicant pleaded guilty in the District Court at Gosford to nine serious sexual and detention offences committed against an intimate partner over a period of approximately 12.5 hours. During that period, the victim was detained, physically assaulted, and subjected to multiple acts of sexual intercourse without her consent. The offences included aggravated detention with intent to obtain advantage, aggravated sexual intercourse without consent (involving actual bodily harm), and sexual intercourse without consent. A further seven offences of sexual intercourse without consent were taken into account on a Form 1 document (a procedural mechanism allowing the court to consider additional, uncharged or separately listed offences at sentencing).

The sentencing judge, Judge Bright, imposed an aggregate sentence of 22 years' imprisonment with a non-parole period of 16 years and 6 months. Individual indicative sentences ranged from 4 years 6 months to 9 years 9 months. A 25 percent discount was applied to all offences to reflect the applicant's early guilty plea.

The applicant sought leave to appeal against that sentence on two grounds: that the sentencing judge had failed to apply the totality principle correctly, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge failed to apply the totality principle when constructing the aggregate sentence through partial accumulation of the individual indicative sentences.
  • Whether the aggregate sentence of 22 years with a non-parole period of 16 years 6 months was manifestly excessive.

Decision

Ground 1: Totality

The Court rejected the submission that the sentencing judge had failed to apply the totality principle. R A Hulme J conducted a detailed analysis of the principle, describing it as multifaceted. The critical requirement is that the overall sentence must reflect the totality of the offender's criminality, rather than being either a mechanical addition of individual terms or an unjustly "crushing" sentence disproportionate to the total conduct. The Court confirmed that a sentencing judge is not required to expressly identify and address every facet of the totality principle, provided the relevant aspects are considered and applied. The indicative sentences were modest in the context of the maximum penalties available, and the judge's approach of partial accumulation was consistent with the principle.

Ground 2: Manifest Excess

The Court also rejected the manifest excess ground. The nine principal offences were assessed as above the mid-range of objective seriousness, and the seven Form 1 offences warranted greater accumulation than might otherwise apply. The Court noted that the relationship between severity of sentence and the total number of offences is not linear: each additional serious offence does not simply add a proportionate increment to the overall term. Comparable cases cited by the applicant were distinguished on their facts. The Court found that the indicative non-parole periods being below the standard non-parole periods for several offences reflected the guilty plea discount, and the aggregate result was not disproportionate to the overall criminality.

The Court granted leave to appeal but dismissed the appeal.

Orders Made

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

Key Takeaways

  • The totality principle in NSW sentencing requires an overall sentence that genuinely reflects the totality of the offender's criminality. A sentencing judge need not address every theoretical facet of the principle explicitly, only those that are relevant to the particular case.
  • No error is established merely because a sentencing judge did not expressly catalogue each specific application of the totality principle that was avoided or observed.
  • Where indicative individual sentences are modest relative to the available maximum penalties, and offences are above mid-range objective seriousness, a greater degree of accumulation in the aggregate sentence may be appropriate.
  • The relationship between the severity of a sentence and the number of offences is not linear. The Court of Criminal Appeal confirmed that the addition of further serious offences does not automatically produce a proportionate increase in the total sentence.
  • Comparable sentencing cases have limited utility where the facts differ materially. The court distinguished the cases relied on by the applicant and found no proper basis for comparison with the circumstances before it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 86(2)(b), 195(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 44(2B)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Aryal v R [2021] NSWCCA 2
- Asplund v R (Cth) [2014] NSWCCA 237
- Attwater v R; Maris v R [2021] NSWCCA 17
- Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- FL v R [2020] NSWCCA 114
- Franklin v R [2013] NSWCCA 122
- Hurst v R [2017] NSWCCA 114
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
- Kleindienst v R [2020] NSWCCA 98
- Mill v The Queen (1988) 166 CLR 59