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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: NSW Court of Criminal Appeal
Date: 15 February 2021
Judge(s): Payne JA, Davies J, Garling J

Background

The appellant pleaded guilty to charges under both Commonwealth and NSW law arising from a course of sexual offending. The conduct involved the manipulation of multiple victims through threats, harassment, and communications using carriage services. The sentencing judge in the District Court imposed a combination of stand-alone and aggregate sentences, resulting in an effective sentence of 20 years with a non-parole period of 15 years.

During sentencing, the judge took three Commonwealth offences into account on NSW Form 1s that were attached to State principal offences. A Form 1 is a procedural mechanism under NSW sentencing law that allows an offender to have additional uncharged or unsentenced matters acknowledged at sentence, affecting the penalty for the principal offence without attracting a separate sentence. The Commonwealth offences listed on those forms included conduct contrary to provisions of the Criminal Code (Cth) relating to using a carriage service to menace, harass or offend, and to solicit child pornography.

The appellant appealed against sentence on several grounds, including that the sentencing judge erred in taking Commonwealth offences into account via the NSW Form 1 procedure when those offences were attached to State principal offences, and that the judge also erred in her assessment of objective criminality and in failing to treat the accumulation of sentences as special circumstances.

  • Whether Commonwealth (federal) offences can lawfully be taken into account on a NSW Form 1 attached to a State principal offence
  • Whether the NSW Form 1 procedure is inconsistent with the federal sentencing regime under Part IB of the Crimes Act 1914 (Cth), particularly s 16A and s 16BA
  • Whether a single non-parole period can be fixed across both federal and State sentences under s 19AJ of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred in her assessment of objective criminality and the indicative sentences
  • Whether the accumulation of sentences constituted special circumstances that required a departure from the standard non-parole period ratio

Decision

Ground 3: The Form 1 error

The Court of Criminal Appeal held that a federal offence cannot be taken into account using the NSW Form 1 procedure when attached to a State principal offence. Where an offender is sentenced for federal offences, s 16A of the Crimes Act 1914 (Cth) requires the court to impose a sentence that is stated and imposed under the Commonwealth regime. The NSW Form 1 mechanism is inconsistent with this requirement because it does not result in a discrete sentence being stated for each federal matter. The proper mechanism for taking a federal offence into account alongside another federal offence is that provided by s 16BA of the Crimes Act 1914 (Cth).

The Court also noted that s 19AJ of the Crimes Act 1914 (Cth) does not authorise the fixing of a single non-parole period spanning both federal and State sentences, providing a further basis for the inconsistency. While s 68 of the Judiciary Act 1903 (Cth) picks up State sentencing procedures and applies them to federal offenders, it does so only "so far as they are applicable." Where a State procedure is inconsistent with the federal sentencing framework, it cannot be adopted. The Court confirmed that its earlier decision in Ilic v R [2020] NSWCCA 300 reached the correct result on this point.

Grounds relating to objective criminality and special circumstances

The Court dismissed the remaining grounds of appeal. The sentencing judge had expressly considered the accumulation of sentences and the effective total sentence, and had determined that the sentence imposed was close to the statutory norm and that nothing less would be sufficient. Both the indicative and aggregate sentences fell within the sentencing judge's discretion. The sentences imposed were neither unjust nor unreasonable.

Disposition

Despite dismissing the substantive sentencing challenges, the Court was required to quash three of the ten separate sentences because of the Form 1 error. The matter was remitted for resentencing on those three sequences. The Court noted, with some regret, that the practical utility of the appeal was elusive: given the totality of the criminality and the structure of the remaining sentences, the overall effective sentence was unlikely to change on resentencing.

Orders Made

• Leave to appeal granted.
• Appeal allowed.
• Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019.
• Remit the proceedings to the District Court for sentence.

Key Takeaways

  • A federal offence cannot be taken into account on a NSW Form 1 attached to a State principal offence: the NSW procedure is inconsistent with ss 16A and 16BA of the Crimes Act 1914 (Cth), which require a separate sentence to be stated and imposed for each federal matter.
  • Under s 19AJ of the Crimes Act 1914 (Cth), a court is not authorised to fix a single non-parole period that spans both federal and State sentences, reinforcing the incompatibility of the NSW Form 1 mechanism in mixed-jurisdiction sentencing.
  • Section 68 of the Judiciary Act 1903 (Cth) picks up State sentencing procedures for federal offenders only to the extent those procedures are not inconsistent with the Commonwealth sentencing regime; inconsistency displaces the State procedure.
  • The correct procedure for taking a federal offence into account alongside another federal matter is that provided by s 16BA of the Crimes Act 1914 (Cth), not the NSW Form 1 mechanism.
  • In dismissing the remaining appeal grounds, the Court of Criminal Appeal confirmed that a sentencing judge's express consideration of accumulated sentences and totality can satisfy the requirement to address special circumstances, provided the reasoning is articulated and the resulting sentence falls within the available discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA, 19AJ, Part IB
- Criminal Code (Cth), ss 474.17(1), 474.19(1)
- Judiciary Act 1903 (Cth), ss 68, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33
- Crimes Act 1900 (NSW), ss 61I, 192J, 447B
- Commonwealth Constitution, s 80
- Commonwealth Prisoners Act 1967 (Cth)

Key Cases
- Ilic v R [2020] NSWCCA 300
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
- Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29
- R v Oti (1990) 19 NSWLR 561
- R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29
- Hughes v R [2018] NSWCCA 2
- Kabir v R [2020] NSWCCA 139