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Court of Criminal Appeal 23 April 2025

Portnoy v R

[2025] NSWCCA 60

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE AGGREGATE NON PAROLE PERIODS AN AGGREGATE NON

Citation: Portnoy v R [2025] NSWCCA 60
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2025
Judges: Davies J, Sweeney J (primary reasons), Huggett J

Background

The applicant was sentenced in the District Court on 17 May 2024 for two offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years. A further offence of sexual touching without consent was taken into account on a Form 1 in relation to the first charge.

The sentencing judge imposed an aggregate sentence and provided indicative sentences for each individual offence, both discounted by 25% for pleas of guilty entered in the Local Court. The indicated sentences were: one year and seven months with an 11-month non-parole period for the first offence (including the Form 1 matter), and three years with a one-year-and-nine-month non-parole period for the second offence. The aggregate sentence was set at four years imprisonment with an aggregate non-parole period of two years and nine months.

The applicant appealed on the sole ground that the aggregate non-parole period exceeded the total of the two indicated non-parole periods by one month. The Crown contended that no error had been demonstrated.

  • Whether the totality principle applies when a sentencing court fixes an aggregate non-parole period under an aggregate sentence.
  • Whether an aggregate non-parole period that exceeds the sum of the individually indicated non-parole periods constitutes a sentencing error.
  • If error was established, what the correct sentence should be upon resentencing.

Decision

The Court of Criminal Appeal upheld the appeal, finding that the aggregate non-parole period did constitute an error. Sweeney J, with Davies and Huggett JJ agreeing, affirmed that the totality principle applies to aggregate sentences. Where a sentencing judge indicates non-parole periods for individual offences and then constructs an aggregate non-parole period, that aggregate figure cannot exceed the sum of the indicated non-parole periods.

The sentencing judge had expressly stated that the close temporal and factual connection between the offences supported significant notional concurrency of the indicated sentences. That stated intention was not reflected in the aggregate non-parole period as imposed, which came in one month above the arithmetic sum of the two indicated non-parole periods. The Court found this inconsistency constituted error.

On resentencing, the Court adopted the indicative sentences as set by the sentencing judge (those figures were not challenged) and restructured the aggregate to be consistent with the expressed intention of significant notional concurrency. The resulting aggregate sentence was three years and six months imprisonment, with an aggregate non-parole period of two years, backdated to commence on 17 January 2024.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Noman SC DCJ in the District Court on 17 May 2024 quashed.
  • In lieu thereof, the applicant sentenced to an aggregate term of three years and six months imprisonment with a non-parole period of two years, commencing 17 January 2024.
  • Sentence to expire 16 July 2027; non-parole period to expire 16 January 2026.

Key Takeaways

  • The totality principle applies to aggregate sentences, including when a court sets an aggregate non-parole period across multiple offences: this was confirmed by reference to a consistent line of authority including JM v R, Aryal v R, Kliendienst v R, Noonan v R, and Bojlevski v R.
  • An aggregate non-parole period that exceeds the arithmetic sum of the indicated non-parole periods for the constituent offences constitutes a sentencing error, regardless of the margin involved.
  • Where a sentencing judge expressly states an intention to apply significant notional concurrency, the resulting aggregate non-parole period must be consistent with that stated intention.
  • In resentencing, the Court of Criminal Appeal applied the unchallenged indicative sentences from below and restructured only the aggregate figures to correct the identified error.
  • The decision reinforces the internal coherence required between a sentencing judge's stated reasoning and the arithmetic structure of an aggregate sentence, particularly in relation to non-parole periods.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2C), 53A, 54B

Cases
- Aryal v R [2021] NSWCCA 2
- Bojlevski v R [2024] NSWCCA 208
- Dimian v R [2016] NSWCCA 223
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 60; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- Noonan v R [2021] NSWCCA 35