Citation: JA v R [2024] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 17 July 2024
Judge(s): Basten AJA; N Adams J; Huggett J
Background
The applicant was sentenced in the District Court on 28 March 2023 for two offences: maintaining an unlawful sexual relationship with his step-daughter (contrary to s 66EA(1) of the Crimes Act 1900 (NSW)) and a common assault. For the principal offence, the sentencing judge imposed a head sentence of 14 years 6 months with a non-parole period of 11 years. The assault sentence of 3 months ran concurrently.
The sentencing judge found special circumstances warranting what his Honour described as "a very minor adjustment" to the default statutory ratio between the non-parole period and the head sentence. Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default position results in a non-parole period of 75% of the head sentence. A finding of special circumstances is intended to operate as a mitigating factor, typically producing a reduced non-parole period rather than an extended head sentence.
Despite the judge's stated intention, the non-parole period as fixed produced a ratio of approximately 75.86%, a slight increase above the default rather than a reduction. The applicant sought leave to appeal against sentence on the basis of this arithmetic error.
Legal Issues
- Whether leave to appeal out of time should be granted, given the delay in filing was attributable to awaiting the High Court's decision in Xerri v The King [2024] HCA 5 on a separate but related point
- Whether the sentencing judge's failure to give arithmetic effect to an intended special circumstances adjustment constituted a correctable error
- Whether the Court of Criminal Appeal was required to resentence the applicant afresh, or could simply correct the arithmetic mistake
- What principles govern an appellate court's re-exercise of sentencing discretion where the error concerns a discrete component of the sentence
Decision
The Court granted the extension of time for the appeal. Although the preferred course might have been to file promptly while deferring the hearing until after Xerri was resolved, the Crown did not oppose the extension and the Court considered it appropriate to grant leave.
On the substantive question, all three judges agreed that the sentencing judge had made an inadvertent arithmetic error. The judge's language made clear that a downward adjustment to the default ratio was intended. However, because the judge did not specify the intended outcome in numerical terms, the Court could not treat the error as a purely mechanical miscalculation capable of correction without further engagement.
The Court confirmed the principle from Kentwell v The Queen (2014) 252 CLR 601 that where a sentencing discretion has miscarried, an appellate court must exercise that discretion afresh. Because the sentencing judge's intention was evident and the error was limited in scope and effect, the re-exercise of the discretion by the Court of Criminal Appeal produced a modest reduction in the non-parole period. N Adams J wrote separately to address the broader question of which categories of error require full resentencing and which may be corrected more narrowly, observing that the case law since Kentwell confirms intervention is warranted only where the error has "the capacity to influence the sentence."
The Court also noted, consistently with earlier authority, that the parties' agreement about the appropriate correction cannot override the statutory obligation under s 6(3) of the Criminal Appeal Act 1912 (NSW) once a material error is established.
Orders Made
- Time for service of the notice of appeal extended to 24 April 2024
- Leave to appeal granted
- Original sentence set aside; applicant resentenced to:
- Non-parole period of 10 years 4 months, commencing 26 March 2021 and expiring 25 July 2031
- Balance of term of 4 years 2 months, expiring 25 September 2035
- Applicant eligible for parole from 25 July 2031
Key Takeaways
- A sentencing judge's finding of special circumstances must be given arithmetic effect: where the stated intention was to reduce the default non-parole period ratio but the orders inadvertently increased it, that constitutes a material error warranting appellate intervention.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default non-parole period is 75% of the head sentence; a special circumstances finding is a mitigating factor that should reduce this ratio, not increase it.
- Where a sentencing judge expresses an intention to adjust the ratio but does not specify the numerical outcome, the Court of Criminal Appeal cannot treat the error as a simple arithmetic correction. It must re-exercise the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW).
- Agreement between the parties about how an error should be corrected does not relieve the appellate court of its statutory obligation to form its own view of the appropriate sentence once a material error is identified.
- Following Kentwell, not every sentencing error automatically requires full resentencing: the Court of Criminal Appeal confirmed that intervention is required only where the error has the capacity to influence the sentence, and that re-exercising the discretion does not necessarily mean disregarding all findings made by the sentencing judge that are not challenged on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A-25F, 43, 44
- Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases:
- Xerri v The King [2024] HCA 5
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- DB v R [2024] NSWCCA 18
- Sausa v R [2023] NSWCCA 95
- Christian v R [2021] NSWCCA 300
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Murray v R [2024] NSWCCA 107
- Fairbairn v Regina [2006] NSWCCA 337
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282