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Court of Criminal Appeal 7 March 2003

R v Jones [2003] NSWCCA 54 revised - 12

[2003] NSWCCA 54

Sexual offences
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Jones [2003] NSWCCA 54
Court: New South Wales Court of Criminal Appeal
Date: 7 March 2003
Judge(s): Santow JA; Simpson J; Smart AJ

Background

The respondent was sentenced in the District Court at Gosford on 23 September 2002 after being convicted of serious offences committed on 25 April 1999. The offences included detaining a 19-year-old woman for advantage, and two counts of sexual intercourse without consent in circumstances of aggravation: one involving a threat of actual bodily harm using a broken bottle, and one involving the actual infliction of bodily harm. Three further offences were taken into account on a Form 1, including two additional counts of aggravated sexual assault and one count of assault occasioning actual bodily harm involving a fracture of the victim's nose.

English DCJ imposed an aggregate effective sentence of 11 years imprisonment. The Crown, directed by the Director of Public Prosecutions, appealed on the ground that the sentence was manifestly inadequate and that the sentencing judge had failed to properly apply the totality principle established in Pearce v The Queen.

The respondent, represented by the Many Rivers Aboriginal Legal Service, argued that the sentence was severe, commensurate with the gravity of the offending, and not such as to warrant appellate interference, particularly given the double jeopardy principle that applies in Crown appeals against sentence.

  • Whether the aggregate sentence of 11 years was manifestly inadequate having regard to the objective seriousness of the offences
  • Whether the sentencing judge failed to properly address the objective gravity of the offences
  • Whether the sentencing judge failed to apply the Pearce principles of totality when determining whether sentences should be accumulated or concurrent
  • Whether adequate weight was given to the principles of deterrence and denunciation
  • What weight the principle of double jeopardy should receive in a Crown appeal against sentence

Decision

The Court of Criminal Appeal dismissed the Crown's appeal. The Court applied the established principle that a Crown appeal against sentence must account for the element of double jeopardy in favour of the offender. Following R v Moffitt (1990) 20 NSWLR 114, the Court confirmed that the discrepancy between the imposed sentence and a proper sentence must be appreciable, not marginal, before appellate intervention is warranted. The Court also applied the formulation from Regina v AEM Snr; KEM; MM [2002] NSWCCA 58, that in such appeals the appellate court must impose the least sentence that could properly have been imposed by the sentencing judge.

The Court found that the sentence imposed stood comparison with comparable cases of equivalent gravity. The respondent's subjective circumstances, including a distressing childhood involving domestic violence and homelessness, were relevant to the double jeopardy analysis and to the overall assessment of the sentence.

Smart AJ, in additional remarks, noted that even if error in applying the Pearce totality principle had been established, the fuller information before the Court of Criminal Appeal, including a detailed report from a psychologist regarding the respondent's background and prospects for rehabilitation, supported a conclusion that intervention was not warranted. The report identified real, if difficult, prospects for rehabilitation and recommended treatment programs, vocational training, and psychological support.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In Crown appeals against sentence, the double jeopardy principle requires that any discrepancy between the imposed sentence and a proper sentence be appreciable and plainly apparent, not merely marginal, before intervention is justified.
  • The Court of Criminal Appeal confirmed that where the double jeopardy principle applies, the appellate court must impose the least sentence that could properly have been imposed by the sentencing judge, following Regina v AEM Snr; KEM; MM [2002] NSWCCA 58.
  • No specific numerical discount is applied for double jeopardy; the extent of any allowance varies with the subjective circumstances of the individual respondent.
  • An aggregate effective sentence of 11 years for offences of abduction, two counts of aggravated sexual assault without consent, and associated Form 1 offences involving violence was held not to be manifestly inadequate on the facts of this case.
  • Subjective circumstances, including deprived background and realistic prospects of rehabilitation, are relevant not only to the original sentence but also to the appellate court's assessment of whether to intervene in a Crown appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases
- Regina v AEM Snr; KEM; MM [2002] NSWCCA 58
- R v Anderson [2002] NSWCCA 304
- R v Baird [2002] NSWCCA 460
- Bang (Seung) Ho (NSWCCA, 1 September 1992, unreported)
- R v Button & Griffen (2002) 54 NSWLR 455
- Dinsdale v The Queen (2000) 74 ALJR 1538
- R v Fong [2002] NSWCCA 320
- R v Kalache (2000) 111 ACrim R 152
- R v Kay [2002] NSWCCA 286
- Mill v The Queen (1988) 166 CLR 59
- R v Moffitt (1990) 20 NSWLR 114
- Pearce v The Queen (1994) 194 CLR 610
- R v Sing (2002) 54 NSWLR 31
- R v SMR [2002] NSWCCA 258
- R v To [2002] NSWCCA 252
- R v To [2002] NSWCCA 247