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16
Court of Criminal Appeal 20 February 2023

Benn v R

[2023] NSWCCA 24

Also reported as (2023) 305 A Crim R 550
Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE REQUIREMENT TO RE SENTENCE GIVEN ERROR CRIME APPEALS

Citation: Benn v R [2023] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 20 February 2023
Judges: Gleeson JA; N Adams J; Ierace J

Background

The applicant pleaded guilty in the District Court to 33 counts of sexual offending committed against 14 female victims in the Hunter Region between September 2012 and January 2017. The victims were aged between 15 and 28 years. The applicant had contacted each victim via Facebook or Tinder and sexually assaulted them after they agreed to meet him.

The offences spanned four categories: sexual intercourse with a child aged 14 to 16, procuring a child for unlawful sexual activity, sexual intercourse without consent, aggravated sexual assault, and indecent assault. All offences attracted a 25 per cent discount for early guilty pleas. The District Court imposed an aggregate sentence of 40 years imprisonment, with a non-parole period of 30 years.

The applicant sought leave to appeal out of time against the aggregate sentence on three grounds: error in applying the concurrency, accumulation and totality principles; failure to give reasons for departing from standard non-parole periods and for special circumstances findings; and manifest excess.

  • Whether the sentencing judge erred in considering and applying the principles of concurrency, accumulation and totality when fixing the aggregate sentence and non-parole period across 33 counts against 14 victims
  • Whether the indicative sentence for count 18 (indecent assault against victim 8) exceeded the maximum penalty for that offence, and whether that error was capable of affecting the aggregate sentence
  • Whether the sentencing judge failed to give adequate reasons for departing from the relevant standard non-parole periods and for findings about special circumstances
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Concurrency, accumulation and totality

The Court accepted that the sentencing judge was not required to articulate in detail the precise degree of concurrency or accumulation applied to each indicative sentence when constructing an aggregate sentence across multiple offences and multiple victims. Provided the sentencing judge's reasons disclosed engagement with the totality principle and the structural framework for the aggregate, the absence of exhaustive arithmetic explanation did not constitute appealable error. The Court found no demonstrated error in the approach taken to the totality principle on this ground standing alone.

Ground 2: Error in indicative sentence for count 18

The Court identified a patent error: the indicative sentence for count 18 (indecent assault, maximum penalty 5 years) was set at 4 years 6 months after discount, with an indicative non-parole period of 3 years. The starting point before discount was recorded as 6 years, which exceeded the 5-year maximum. The Court held that this error had the capacity to influence the aggregate sentence. That was sufficient to establish error warranting re-sentencing, regardless of whether the other grounds succeeded.

On the second aspect of ground 2, the Court confirmed that the requirement to find and record special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 applies to the aggregate sentence and aggregate non-parole period, not to each indicative sentence individually. There is no statutory requirement to find special circumstances before varying the ratio between the non-parole period and head sentence for an indicative sentence. On the reasons requirement for departures from standard non-parole periods, the Court was satisfied that adequate reasons had been given for the indicative sentences to which standard non-parole periods applied.

Re-sentencing

Having identified error, the Court was required to re-sentence the applicant. On re-sentence, the Court also made a higher finding of objective seriousness for count 19 than the sentencing judge had, noting that the Crown had invited that departure and procedural fairness had been extended to the applicant. The Court took into account that the applicant had served time during the COVID-19 pandemic in particularly onerous conditions, a matter the sentencing judge could not have foreseen in 2018. The Court imposed an aggregate sentence of 35 years, with a non-parole period of 26 years and 3 months expiring on 13 April 2043. Importantly, N Adams J noted that the reduced aggregate did not reflect a finding of manifest excess in the original sentence; it was simply the result of an independent exercise of the sentencing discretion on re-sentencing.

Orders Made

  • Extension of time to appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Original aggregate sentence set aside
  • In lieu: aggregate sentence of 35 years imprisonment commencing 14 January 2017, with a non-parole period of 26 years and 3 months expiring 13 April 2043, and a balance of term expiring 13 January 2052

Key Takeaways

  • A patent error in an indicative sentence that exceeds the maximum penalty for the relevant offence is capable of infecting the aggregate sentence and will warrant re-sentencing, even where the aggregate might otherwise appear proportionate to the overall criminality.
  • Under the Crimes (Sentencing Procedure) Act 1999, the special circumstances finding required by s 44 applies to the aggregate sentence and non-parole period; there is no equivalent statutory requirement to make a special circumstances finding when setting an indicative non-parole period for an individual count within an aggregate.
  • When imposing an aggregate sentence across many offences against multiple victims, a sentencing judge is not required to provide exhaustive arithmetic disclosure of the degree of concurrency or accumulation applied to each indicative sentence, provided the reasons demonstrate engagement with the totality principle.
  • A lower aggregate sentence imposed on re-sentencing by the Court of Criminal Appeal does not necessarily mean the original sentence was manifestly excessive; it may simply reflect an independent exercise of the sentencing discretion at the appellate level.
  • Conditions of imprisonment experienced during the COVID-19 pandemic may be taken into account as a mitigating factor on re-sentencing where those conditions were not foreseeable at the time of the original sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 61L, 61N, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 53A, 54A, 54B, 101A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2

Cases
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Davidson v R [2022] NSWCCA 153
- DH v R [2022] NSWCCA 200
- Tomlinson v R [2022] NSWCCA 16
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Burgess v R [2019] NSWCCA 13
- GW v R [2018] NSWCCA 79
- AB v R [2014] NSWCCA 31
- Beale v R [2015] NSWCCA 120
- Hall v R [2021] NSWCCA 220
- Collier v R [2012] NSWCA 213
- Douar v R [2005] NSWCCA 455