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Court of Criminal Appeal 24 April 2023

Sausa v R

[2023] NSWCCA 95

Sexual offences
CRIMINAL LAW SENTENCE APPEAL STATUTORY RATIO NOT ADJUSTED ERROR ESTABLISHED APPLICATION FOR LEAVE TO APPEAL GRANTED STATUTORY RATIO VARIED

Citation: Sausa v R [2023] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 24 April 2023
Judges: Wilson J, N Adams J, Cavanagh J

Background

The appellant pleaded guilty to several sexual offences committed against the teenage daughter of his then-partner across 2016, 2017 and 2018. The offences included indecent assault and sexual intercourse with a child aged between 14 and 16, contrary to the Crimes Act 1900 (NSW). He had no prior criminal record, had pleaded guilty in the Local Court, and was 54 years old at the time of sentencing.

Judge Syme in the District Court imposed an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years and 6 months, commencing 6 June 2020. The sentencing judge found that the appellant had reasonable prospects of rehabilitation and expressly acknowledged that he would benefit from alcohol treatment and further psychiatric investigation, including into a potential paedophilic component to his sexuality.

The appellant sought leave to appeal on the sole ground that the sentencing judge had found special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) but then failed to give effect to that finding by adjusting the statutory ratio between the non-parole period and the balance of the sentence.

  • Whether the sentencing judge erred by finding special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) without then varying the statutory ratio (the requirement that the non-parole period be at least 75% of the head sentence).
  • Whether the Court of Criminal Appeal could resolve the appeal by varying the ratio itself, rather than re-exercising the full sentencing discretion afresh.
  • Whether the combination of first-time incarceration and rehabilitation needs provided a sufficient basis for a finding of special circumstances.

Decision

N Adams J (with whom Wilson J and Cavanagh J agreed) accepted the Crown's concession that error was established. The sentencing judge had made express findings acknowledging the appellant's first time in custody and his need for rehabilitation in relation to both alcohol abuse and further psychiatric investigation, yet she had not translated those findings into a reduction of the statutory ratio. That omission constituted a legal error.

The court noted the general principle under s 44(2B): absent special circumstances, the balance of an aggregate sentence must not exceed one-third of the non-parole period, meaning the non-parole period must represent at least 75% of the total sentence. The sentencing judge's non-parole period of 4 years and 6 months out of a 6-year head sentence exceeded the statutory ratio without any formal variation being made.

N Adams J was satisfied that special circumstances were established on the combination of two factors: the appellant's first experience of imprisonment, and the additional rehabilitation needs expressly identified by the sentencing judge, namely addressing alcohol abuse and investigating the psychiatric issues raised by the expert report. Neither factor alone was treated as automatically sufficient, consistent with earlier Court of Criminal Appeal authority casting doubt on first-time custody as a standalone basis.

Because only the proportion of the sentence to be served in custody was in dispute, and the head sentence itself was not challenged, the court determined it was appropriate to vary the ratio without re-sentencing afresh. This approach was consistent with the principle in Kentwell v The Queen (2014) 252 CLR 601 that a full re-exercise of the sentencing discretion is not always required.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by Judge Syme on 22 October 2021 was quashed.
  • In its place, the appellant was resentenced to an aggregate sentence of 6 years imprisonment commencing 6 June 2020 and expiring 5 June 2026, with a non-parole period of 4 years expiring 5 June 2024.

Key Takeaways

  • A finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the sentencing court to actually vary the statutory ratio; identifying the circumstances without adjusting the ratio constitutes a legal error.
  • Under s 44(2B), absent special circumstances, the non-parole period for an aggregate sentence must represent at least 75% of the total head sentence (the "statutory ratio").
  • The Court of Criminal Appeal confirmed that first-time incarceration, in combination with identified rehabilitation needs, can constitute special circumstances, but cautioned against treating first-time custody alone as automatically sufficient.
  • Where only the proportion of the sentence to be served in custody is challenged and the head sentence is not in dispute, the Court of Criminal Appeal may correct the error by varying the statutory ratio rather than re-exercising the sentencing discretion in full, consistent with Kentwell v The Queen (2014) 252 CLR 601.
  • Sentencing remarks that acknowledge rehabilitation needs without formally incorporating them into the special circumstances conclusion risk the kind of error identified here, where the judge's reasoning and the mathematical outcome are inconsistent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2B), 53A

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- CM v R [2020] NSWCCA 136
- CM v R [2013] NSWCCA 341
- Leslie v R [2009] NSWCCA 203
- R v Little [2013] NSWCCA 288
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Caristo v R [2011] NSWCCA 7
- Collier v R [2012] NSWCCA 213
- MD v R [2015] NSWCCA 37
- Singh v R [2020] NSWCCA 353
- Sutton v R (2004) 41 MVR 40; [2004] NSWCCA 225