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Court of Criminal Appeal 5 October 2022

Vincent v R

[2022] NSWCCA 210

Public order & justice offences
CRIME A PPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE NO HOUSE V THE KING ERROR DEMONSTRATED

Citation: Vincent v R [2022] NSWCCA 210
Court: Court of Criminal Appeal, New South Wales
Date: 5 October 2022
Judge(s): Ward P, Davies J, Fagan J

Background

The applicant pleaded guilty in the Local Court to four counts of using a carriage service to menace, harass or offend, contrary to s 474.17(1) of the Criminal Code (Cth). The maximum penalty for each count is three years' imprisonment. The offending involved the applicant, while incarcerated at various NSW prisons, using other inmates' phone accounts to make calls to services including 1800 RESPECT, Quitline, Family and Community Services NSW, and Crime Stoppers, in which he described fictitious sexual abuse of young children. He admitted the calls were made for sexual gratification.

The applicant had a lengthy history of the same type of offending, including prior convictions in 2007, 2008, 2010, and a sentence imposed in 2018 for the same category of offence. The index offending occurred while he was already serving a sentence for prior similar conduct. At the time of the sentencing hearing in the District Court in June 2021, Judge N Williams imposed an aggregate sentence of 3 years and 7 months, backdated to commence on 18 September 2020, with a non-parole period of 2 years and 4 months.

The applicant sought leave to appeal against that sentence to the Court of Criminal Appeal 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 erred in applying the principle of totality, particularly in backdating the sentence to run partly concurrently with the sentence the applicant was already serving.
  • Whether the aggregate sentence of 3 years and 7 months was manifestly excessive in the circumstances.
  • Whether the statement in Kerr v R [2008] NSWCCA 201 stands as a general principle that the totality principle does not apply where an offender is no longer serving an existing sentence at the time of sentencing for later offending.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously. All three judges agreed that no error in the House v The King sense had been demonstrated in relation to either ground.

On the totality ground, Davies J (with Ward P and Fagan J agreeing) held that the sentencing judge's decision to backdate the sentence was an available and legitimate way of addressing totality, concurrency, and accumulation. The totality principle does not prescribe a single method: it may be applied either by making sentences concurrent or partially concurrent, or by reducing individual sentences below what would otherwise be appropriate. Both approaches were open on the relevant legislative framework.

Davies J also addressed a potential inconsistency in the case law. The statement in Kerr v R at [29] was clarified as not establishing a general principle that the totality principle is inapplicable simply because an offender is no longer serving a prior sentence at the time of the new sentencing. The apparent tension between Kerr v R and CM v R [2020] NSWCCA 136 was identified but Ward P declined to express a concluded view on that disconformity, given that no House v The King error had been demonstrated in any event.

On manifest excess, the Court held that the notional accumulation resulting in the aggregate sentence was well within the sentencing judge's discretion. The applicant's persistent and essentially identical offending over many years, committed repeatedly despite prior custodial sentences and even while serving such sentences, supported the aggregate term imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The totality principle in sentencing does not mandate any single approach: a sentencing court may address it by backdating a new sentence to run concurrently (or partly so) with an existing sentence, or by reducing the head sentence, depending on what is available and appropriate in the circumstances.
  • No error arises from a sentencing judge's choice to backdate a sentence as the mechanism for applying totality, provided that the combined effect of all sentences was taken into account.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Kerr v R does not stand for the broad proposition that the totality principle is irrelevant where an offender has already finished serving the earlier sentence by the time they come to be sentenced for later offending.
  • Persistent, repetitive offending of the same character committed across successive periods of incarceration does not automatically entitle an offender to have all matters treated as a single unified course of conduct for totality purposes.
  • Sufficient evidence of persistent and identical offending over many years, committed despite prior imprisonment, supported the sentencing judge's exercise of discretion and displaced any claim of manifest excess.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 474.17(1)
- Crimes Act 1914 (Cth) ss 16A, 16B
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Mill v R (1988) 166 CLR 59
- House v The King (as applied in the House v The King error principle)
- Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581
- Haak v R [2022] NSWCCA 28
- Burke v R [2022] NSWCCA 6
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Kerr v R [2008] NSWCCA 201
- CM v R [2020] NSWCCA 136
- GP v R [2017] NSWCCA 200
- State of NSW v Vincent [2017] NSWSC 858
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15