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Court of Criminal Appeal 16 June 2004

R v CJP [2004] NSWCCA 188 revised - 25

[2004] NSWCCA 188

Sexual offences
CRIMINAL LAW AND PROCEDURE CROWN APPEAL AGAINST SENTENCE CHILD SEXUAL ASSAULT OFFENCES FAILURE TO CUMULATE SOME SENTENCES EXCEPTIONALLY SERIOUS OFFENCES

Citation: R v CJP [2004] NSWCCA 188 revised 25/06/2004
Court: NSW Court of Criminal Appeal
Date: 16 June 2004 (revised 25 June 2004)
Judges: Hulme J, Simpson J, Howie J

Background

The respondent pleaded guilty in the Local Court to multiple child sexual assault offences committed in October and November 2000 against two child complainants, both aged 13, and was committed to the District Court for sentence. The offences included sexual intercourse with a child under 16 (carrying a maximum of 8 years) and aggravated sexual assault without consent against a child under 16 (carrying a maximum of 20 years). A further five similar offences were placed before the sentencing judge on a Form 1 to be taken into account.

The proceedings had an unsatisfactory history. Acting Judge Moore initially sentenced the respondent in December 2002 to an overall term of 9 years with a 6-year non-parole period. The Court of Criminal Appeal subsequently quashed those sentences due to technical errors, including a failure to give reasons at the time of sentencing. The matter was then reheard by Judge Sides DCJ, who imposed a heavier overall sentence of 11 years with a non-parole period of 7 years.

Both the respondent and the Crown were dissatisfied with Judge Sides' sentence. The respondent sought leave to appeal, arguing insufficient regard had been given to the earlier Moore sentences. The Crown appealed, contending the sentence remained manifestly inadequate and that the sentencing discretion had miscarried through, among other things, inappropriate double counting of delay and "triple jeopardy" considerations.

  • Whether Judge Sides erred by failing to give adequate weight to the sentences previously intended by Acting Judge Moore when resentencing the respondent
  • Whether the sentences imposed by Judge Sides were manifestly inadequate, particularly given the failure to cumulate sentences for the most serious offences
  • Whether the procedural history of the matter, including delay and what was described as "triple jeopardy", justified the Court declining to intervene on the Crown's appeal
  • What the appropriate overall effective sentence should be, having regard to the 25 per cent guilty plea discount

Decision

The Court rejected the respondent's application for leave to appeal. The argument that Judge Sides was bound to have closer regard to the earlier Moore sentences was not accepted. The fact that an earlier sentencing had been quashed for technical error did not constrain the resentencing judge to replicate those figures.

The Court accepted the Crown's position that the sentences imposed by Judge Sides were manifestly inadequate. The principal error identified was a failure to appropriately cumulate the sentences for counts 3, 4, and 5, being the most serious charges. The offences were described as exceptionally serious, involving non-consensual sexual intercourse against child victims aged 13.

The Court acknowledged that the history of the proceedings, including delay and the respondent's repeated exposure to sentencing, were matters of real concern. However, Howie J (with whom Hulme J and Simpson J agreed) concluded that those circumstances were insufficient to justify declining to intervene on a Crown appeal in the face of sentences that were manifestly inadequate for offending of this gravity.

The Court determined that the appropriate overall sentence, after a 25 per cent discount for the guilty plea, was 14 years imprisonment with a non-parole period of 10 years and 6 months, dating from 28 November 2000. This was achieved by quashing and increasing the sentences on counts 3, 4, and 5 while leaving the sentences on counts 1 and 2 undisturbed.

Orders Made

  • The respondent's application for leave to appeal against severity was refused
  • The Crown appeal was allowed
  • The sentences on counts 3, 4, and 5 were quashed and replaced as follows:
  • Count 5: 5 years 6 months imprisonment, non-parole period 4 years, commencing 28 November 2002 (non-parole period expiring 27 November 2006)
  • Count 4: 6 years imprisonment, non-parole period 4 years 6 months, commencing 28 November 2003 (non-parole period expiring 27 May 2008)
  • Count 3: 9 years imprisonment, non-parole period 5 years 6 months, commencing 28 November 2005 (non-parole period expiring 27 May 2011)

Note: The order on count 3 was corrected on 25 June 2004 to resolve an inconsistency between paragraphs 80 and 82 of the original judgment. The corrected non-parole period for count 3 is 5 years 6 months, not 6 years 6 months as initially stated in the orders.

Key Takeaways

  • The Court of Criminal Appeal confirmed that quashing a sentence for technical error does not limit a resentencing judge to reimposing the same penalty; the resentencing is conducted afresh on its merits.
  • A failure to adequately cumulate sentences for multiple serious offences can render an overall sentence manifestly inadequate, even where individual head sentences are not themselves criticised.
  • Procedural complications, delay, and repeated exposure to sentencing proceedings are relevant considerations, but the Court held they do not, of themselves, justify declining to correct a manifestly inadequate sentence on a Crown appeal in cases of exceptional seriousness.
  • A 25 per cent discount for an early guilty plea was applied in calculating the appropriate aggregate sentence across the offences.
  • Where an inconsistency arises between the reasoning in a judgment and the orders formally made, the Court of Criminal Appeal may issue a correction to bring the orders into conformity with its stated intention.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902, s 51A (now repealed)
- Crimes Act 1900, ss 61J, 61N(1), 66C(1), 78L

Cases:
- R v CJP [2003] NSWCCA 187
- R v Wong and Leung [2002] NSWCCA 169
- R v Henry (1999) 46 NSWLR 436
- R v SY [2003] NSWCCA 291
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Gilmore (1979) 1 A Crim R 416
- R v MM (2002) 135 A Crim R 431
- R v Wall [2002] NSWCCA 42
- Johnson v The Queen (2004) 205 ALR 346
- R v Hayes [2004] NSWCCA 156
- R v Blanco (1999) 106 A Crim R 303
- R v Way [2004] NSWCCA 131
- R v Fidow [2004] NSWCCA 172
- Dinsdale v The Queen (2000) 202 CLR 32