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Court of Criminal Appeal 22 February 2024

DB v R

[2024] NSWCCA 18

Sexual offences
CRIMINAL LAW SENTENC E APPEAL CONTACT SEXUAL OFFENCES THE NON APPROACH TO RE SENTENCING

Citation: DB v R [2024] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 22 February 2024
Judge(s): Davies J, Hamill J, Huggett J

Background

The applicant had been sentenced in the District Court by Judge McGrath SC on multiple contact and non-contact sexual offences. The sentencing judge imposed an aggregate sentence of 19 years' imprisonment. The resulting non-parole period, however, was set at 14 years and 6 months, which represented more than 75% of the head sentence rather than less than it.

The 75% ratio is the statutory standard under the Crimes (Sentencing Procedure) Act 1999 (NSW). A judge who finds "special circumstances" may reduce the non-parole period below that standard ratio. The sentencing judge had remarked that he was making "only the very slightest of adjustments" in that regard, suggesting an intention to set the non-parole period slightly below 75% of the head sentence. In practice, the non-parole period ended up slightly above it.

The applicant sought leave to appeal, arguing that the sentencing judge had found special circumstances but failed to give effect to that finding when setting the non-parole period.

  • Whether the sentencing judge made a finding of special circumstances, notwithstanding the absence of an express statement to that effect
  • Whether the resulting non-parole period, which exceeded 75% of the head sentence, was an error
  • Whether the Court of Criminal Appeal was required to conduct a full resentencing exercise (as required by the High Court in Kentwell v The Queen), or whether it could simply correct the discrete error by adjusting the non-parole period alone

Decision

The Court accepted that the sentencing judge had intended to find special circumstances and to reduce the non-parole period slightly below the standard 75% ratio. The judge's comment about making "only the very slightest of adjustments" could only, in context, mean a slight downward adjustment. The Court also noted that one of the indicative sentences carried a non-parole period of approximately 66% of the indicative head sentence, further supporting that conclusion. The resulting non-parole period of more than 75% was therefore an error.

The more complex question concerned how to correct it. Under the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601, an intermediate appellate court that finds legal error in a sentence must re-exercise the sentencing discretion afresh, not simply patch the original sentence. Earlier cases had recognised a possible exception where an error is purely arithmetical or affects only a discrete and self-contained component of the sentence. The tension in the authorities on this point was acknowledged by all three judges.

The Court engaged at length with Lehn v R (2016) 93 NSWLR 205 and Christian v R [2021] NSWCCA 300, both of which addressed the same tension. Those decisions had confirmed that, at least where the precise non-parole period intended by the sentencing judge cannot be identified with certainty, a full Kentwell resentencing is ordinarily required. The Court noted this remains a contested area, with several judges having expressed reservations about whether Kentwell was truly intended to apply to every minor or discrete error.

Despite both parties accepting in this case that a full resentencing was required, the Court ultimately resentenced the applicant only in respect of the non-parole period. The head sentence of 19 years was preserved, and the non-parole period was reduced from 14 years and 6 months to 14 years and 3 months, reflecting the "very slight" downward adjustment the sentencing judge had indicated. The Court also made a consequential order under s 59 of the Crimes (Sentencing Procedure) Act 1999 to adjust the commencement date of a separate, unrelated sentence imposed by a different judge, so as to preserve the 14-month period of concurrency that had previously been ordered.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Original sentence quashed and replaced with an aggregate sentence of 19 years' imprisonment commencing 31 March 2021 and expiring 30 March 2040, with a non-parole period of 14 years and 3 months expiring 30 June 2035
  • Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the commencement date of the applicant's separate aggregate fixed term of 20 months (imposed by Walmsley SC ADCJ) varied to 30 April 2034, with a consequential expiry date of 29 December 2035

Key Takeaways

  • Where a sentencing judge states an intention to make a "very slight" adjustment to the statutory non-parole period ratio but the resultant sentence does not reflect that intention, an error in the sentencing process is established, even without an express finding of special circumstances on the face of the judgment.
  • The authorities remain unsettled on when, if ever, an appellate court may correct a discrete sentencing error (such as a miscalculated non-parole period) without conducting a full Kentwell resentencing. The Court of Criminal Appeal acknowledged ongoing tension in this area, with multiple judges having expressed reservations about Kentwell's scope, though none has departed from it.
  • In Lehn and Christian, the Court had concluded that a full resentencing is required where the precise non-parole period intended by the sentencing judge cannot be ascertained. This decision is consistent with that line of authority.
  • Agreement by the parties that only the non-parole period needs adjustment does not necessarily permit the Court to confine its task in that way, as the Court's obligation under s 6(3) of the Criminal Appeal Act 1912 applies regardless of the parties' positions.
  • Under s 59(1) of the Crimes (Sentencing Procedure) Act 1999, a court that quashes or varies a sentence may also vary the commencement date of any other sentence imposed on that person, including sentences imposed by a different court, to preserve existing concurrency arrangements.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 44, 59
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Christian v R [2021] NSWCCA 300
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Sausa v R [2023] NSWCCA 95
- Tenenboim v R [2024] NSWCCA 1
- Maglovski v R [2014] NSWCCA 238
- McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155
- Davis v R [2015] NSWCCA 90
- Turnbull v R [2019] NSWCCA 97
- O'Connell v R [2016] NSWCCA 43
- CM v R [2013] NSWCCA 341
- Maglis v The Queen [2010] NSWCCA 247
- R v Bolamatu [2002] NSWCCA 454
- Sharrock [1999] NSWCCA 289