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Court of Criminal Appeal 15 February 2021

Hildebrand v R

[2021] NSWCCA 9

Sexual offencesPublic order & justice offences
SENTENCING SENTENCING PROCEDURE WHERE INCONSISTENCY APPEAL AGAINST SENTENCE ALONE AND AGGREGATE SENTENCES

Citation: Hildebrand v R [2021] NSWCCA 9
Court: Court of Criminal Appeal
Date: 15 February 2021
Judge(s): Payne JA, Davies J, Garling J

Background

The applicant pleaded guilty to 26 charges under both Commonwealth and State law, arising from almost a decade of predatory sexual offending against 14 victims between 2007 and 2016. The offending involved the systematic use of false online identities, threats, blackmail, and manipulation to coerce victims into producing sexually explicit images or engaging in sexual acts. From December 2011, the applicant was a serving NSW Police officer, and several victims were fellow officers or their relatives.

At sentencing in the District Court in September 2019, the court imposed a series of stand-alone and aggregate sentences resulting in an overall effective sentence of 20 years imprisonment with a non-parole period of 15 years commencing 31 May 2017. Three Commonwealth offences were placed on Form 1 documents attached to State principal offences, a course agreed to by both parties at the time.

The applicant sought leave to appeal on several grounds, ultimately accepting that most of his challenges to the sentences failed but obtaining relief on a specific point of law concerning the use of the NSW Form 1 procedure to accommodate Commonwealth offences.

Legal Issues

  • Whether a Commonwealth offence can be "taken into account" using the NSW Form 1 procedure when sentencing for a State offence, or whether this is inconsistent with federal sentencing law
  • Whether the sentencing judge erred by failing to treat the accumulation of sentences as "special circumstances" justifying a reduction in the statutory non-parole period ratio
  • Whether the indicative sentences were excessive given the objective criminality of the offences
  • Whether the overall effective sentence was manifestly excessive or plainly unjust

Decision

Ground 3 (Commonwealth offences on State Form 1 documents):
The Court held that Commonwealth offences cannot be placed on a NSW Form 1 document attached to a State principal offence. Section 16A of the Crimes Act 1914 (Cth) requires that a federal offence attract a sentence that is stated and imposed, unless taken into account in relation to another federal offence under s 16BA of the same Act (at [33]). The NSW Form 1 procedure does not involve any sentence being imposed for the additional offence, and the matters required to be considered in fixing the State sentence differ from those mandated by s 16A(2) for federal offences. This creates an inconsistency of the kind that prevents the NSW procedure from being picked up and applied via s 68 of the Judiciary Act 1903 (Cth) (at [33]).

A further and independent source of inconsistency arose from s 19AJ of the Crimes Act 1914 (Cth), which prohibits a court from fixing a single non-parole period that spans both federal and State sentences (at [34]). By placing Commonwealth offences on Form 1 documents tied to State offences, the non-parole period for each State sentence effectively encompassed a Commonwealth offence, in breach of this prohibition. The Court distinguished the NSW procedure from that considered by the Western Australian Court of Appeal in Adams v Western Australia, noting that the WA provisions required a discrete sentence to be imposed for each federal offence, whereas the NSW Form 1 procedure involves no sentence at all for the additional offence (at [25]-[26]).

Ground 2 (Accumulation and special circumstances):
The Court rejected the submission that the sentencing judge had failed to give adequate weight to the accumulation of sentences when determining the non-parole period ratio. The sentencing judge expressly identified that the overall non-parole period remained close to the statutory norm and determined that nothing less than 15 years would be sufficient (at [250]). That express determination was a sufficient justification for not departing from the statutory ratio, consistent with R v Cramp. Ground 2 was dismissed (at [251]).

Ground 4 (Excessive indicative sentences):
The Court rejected the argument that the indicative sentences disclosed error in the aggregate sentences. All indicative non-parole periods lay below the standard non-parole period of seven years, and the starting points were consistent with the assessed objective seriousness. Counsel for the applicant ultimately accepted at the hearing that she could not submit that the indicative sentences fell outside the sentencing judge's discretion (at [258]-[259]).

Grounds 5 and 6 (Manifest excess and crushing sentence):
The Court rejected the submission that the overall effective sentence was plainly unjust or unreasonable. The offending spanned almost ten years, involved 14 victims, extensive planning, and the exploitation of the applicant's position as a police officer. The sentencing judge specifically considered the applicant's relatively young age and the risk of imposing a crushing sentence (at [264]). The total of all indicative sentences was almost 70 years, against which the effective 20-year sentence reflected a very substantial degree of concurrence (at [263]). None of the individual, indicative, or aggregate sentences were found to be plainly unjust or unreasonable (at [267]).

Disposition:
Because the Commonwealth offences in sequences 25, 36 and 52 were wrongly attached to State Form 1 documents, the Court allowed the appeal and quashed all sentences to afford the District Court maximum flexibility in the resentencing exercise. The Court noted that on resentencing those Commonwealth offences would need to be attached to one of the sequences for which a Commonwealth offence was the principal offence, using the s 16BA procedure (at [269]-[270]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Judge Tupman in the District Court on 27 September 2019 are quashed
  • Proceedings remitted to the District Court for resentencing

Key Takeaways

  • A Commonwealth offence cannot be taken into account using the NSW Form 1 procedure when the principal offence is a State offence. The incompatibility arises from two distinct sources: the requirement in s 16A of the Crimes Act 1914 (Cth) that a federal offence attract a stated and imposed sentence, and the prohibition in s 19AJ against a single non-parole period spanning both federal and State sentences (at [33]-[34]).

  • There is no necessary inconsistency between federal and State sentencing regimes in dealing with all outstanding charges in one hearing before one judicial officer. The critical distinction is that any procedure applied to a federal offence must result in a discrete sentence being imposed for that offence, not merely in the offence being "taken into account" in fixing another court's sentence (at [23], [25]-[26]).

  • Where a sentencing judge expressly identifies that the overall non-parole period remains close to the statutory norm and determines that nothing less would be sufficient, that constitutes an adequate justification for not reducing the statutory ratio, even where special circumstances have otherwise been found (at [250]).

  • Indicative sentences in an aggregate sentencing exercise do not constitute independently appealable orders, but they may reveal error in the aggregate sentence. Where indicative sentences are within the sentencing judge's discretion and consistent with the assessed objective seriousness, they do not demonstrate error in the aggregate sentence (at [254], [258]).

  • Where an error of law infects only part of a sentencing structure, the Court of Criminal Appeal may quash all sentences and remit the matter for resentencing in order to give the sentencing judge maximum flexibility, particularly where the affected offences interact with other sentences in a complex aggregate structure (at [269]-[270]).

Legislation and Cases Referenced

Legislation
- Commonwealth Constitution, s 80
- Commonwealth Prisoners Act 1967 (Cth)
- Crimes Act 1900 (NSW), ss 61I, 192J , 447B
- Crimes Act 1914 (Cth ), ss 16A, 16BA, 19AJ, 474.17, 474.19, Pt IB,
- Crimes (Amendment) Act 1955 (NSW), s 4(e)
- Crimes Amendment Act 1982 (Cth)
- Criminal Code (Cth), ss 474.17(1), 474.19(1)
- Crimes Legislation Amendment Act (No. 2) 1989 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s s 32, 33
- Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW)
- Crimes (Sentencing Procedure) Regulation 2000 (NSW)
- Crimes (Sentencing Procedure) Regulation 2017 (NSW) cl 4
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW) s 65
- Judiciary Act 1903 (Cth), ss 68, 79
- Sentencing Act 1995 (WA) ss 32, 33
- Weapons Prohibition Act 1998 (NSW) s 7

Cases
- Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351
- Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
- Hughes v R [2018] NSWCCA 2
- Hutchen v R [2015] NSWCCA 101
- Ilic v R [2020] NSWCCA 300
- Kabir v R [2020] NSWCCA 139
- Kerr v R [2016] NSWCCA 218
- Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- R v Cramp [2004] NSWCCA 264
- R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36
- R v Murphy (1985) 158 CLR 596; [1985] HCA 50
- R v Oti (1990) 19 NSWLR 561
- R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29
- Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
- Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19