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6
Court of Criminal Appeal 18 February 2022

Haak v R

[2022] NSWCCA 28

Sexual offences
CRIME SENTENCING APPEAL SEPARATE OFFENDING NO ERROR FAILURE TO FIND SPECIAL CIRCUMSTANCES WHETHER HOUSE V R ERROR ESTABLISHED

Citation: Haak v R [2022] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 18 February 2022
Judges: Beech-Jones CJ at CL (with Davies J and Bellew J agreeing)

Background

The applicant was a pastor in the Hunter Valley who, while aged 58 to 59, sexually offended against a nine-year-old girl (referred to as AB) during a sleepover at his home in 2007. He was later tried and convicted by a jury in November 2019 on two counts: committing an act of indecency on a child under ten years of age, and having sexual intercourse with a child under ten years of age.

Separately, in 2012 the applicant had been sentenced for 15 counts of indecent assault committed against three young girls in 2010, for which he served a sentence of seven years with a four-year non-parole period. In May 2020, the sentencing judge imposed an aggregate sentence of ten years with a non-parole period of seven years and six months for the 2007 offences.

The applicant sought leave to appeal against the sentence on two grounds: that the sentencing judge failed to apply the totality principle with reference to the earlier 2012 sentence, and that the judge erred in refusing to find special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by failing to consider the totality principle in light of the applicant's earlier sentence for the 2010 offences.
  • Whether the sentencing judge erred in refusing to make a finding of "special circumstances," which would have altered the statutory ratio between the non-parole period and the head sentence.

Decision

Totality (Ground 1): The Court noted that no submission on totality had been put to the sentencing judge at first instance. More fundamentally, the totality principle is directed at ensuring an aggregate sentence is not disproportionate where offences are sentenced together or where a new sentence is imposed while an existing one is being served. Here, the applicant had already completed the sentence for the 2010 offences before being sentenced for the 2007 offences. The sentencing judge had correctly treated the earlier convictions as denying the applicant any claim to leniency, rather than as aggravating the sentence. No error was established.

Special Circumstances (Ground 2): The applicant contended that his advanced age, progress in rehabilitation, and exposure to violence in prison justified a finding of special circumstances. The sentencing judge rejected each of these matters. On appeal, the Court characterised the challenge as an evaluative one, governed by the House v The King standard: the applicant needed to demonstrate that the sentencing judge's refusal was unreasonable or plainly unjust, not merely that a different finding would also have been open. The Court accepted that a finding of special circumstances was open to the sentencing judge, particularly given the applicant would be approximately 80 years old at the expiry of his sentence. However, the sentencing judge was not compelled to make that finding, and no error in reasoning was identified.

The Court granted leave to appeal but dismissed the appeal on both grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The totality principle does not require a sentencing court to adjust a new sentence to account for an earlier, fully served sentence for separate offending. The principle is most relevant where sentences are being imposed concurrently or where an offender is still serving an existing sentence.
  • Where no submission on totality was made to the sentencing judge, an appellate court will approach any such ground with particular caution.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 involves both a factual identification of circumstances and an evaluative judgment. Appellate review of the evaluative aspect is governed by the House v The King restraint.
  • No error was established where the sentencing judge acknowledged that a special circumstances finding was open but declined to make one. The Court of Criminal Appeal confirmed that a finding being "open" does not make the refusal to make it an error.
  • Advanced age at sentence expiry may be a relevant factor in the special circumstances analysis, but it does not automatically compel a finding in an applicant's favour.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 44, 54A
- Crimes Act 1900 (NSW), former s 61M(2), s 66A

Cases:
- House v The King (1936) 55 CLR 499
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v R (1997) 189 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Todd [1982] 2 NSWLR 517
- Humphries v R; Ponfield v R [2016] NSWCCA 86
- WAP v R [2017] NSWCCA 212
- Bell v R [2019] NSWCCA 271
- Porter v R [2019] NSWCCA 117
- R v Cattell [2019] NSWCCA 297
- Cunningham v R [2020] NSWCCA 287
- Wu v R [2011] NSWCCA 102
- Zreika v R [2012] NSWCCA 44