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Court of Criminal Appeal 19 June 2002

REGINA v. ELLMORE [2002] NSWCCA 242 revised - 15

[2002] NSWCCA 242

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PAEDOPHILE OFFENCES AGAINST YOUNG GIRLS OFFENCES COMMITTED WHILE ON PAROLE

Citation: REGINA v. ELLMORE [2002] NSWCCA 242 revised - 15/10/2002
Court: NSW Court of Criminal Appeal
Date: 19 June 2002
Judges: Greg James J; Smart AJ

Background

The applicant, a 64-year-old former Anglican rector, was sentenced in the District Court after pleading guilty to multiple sexual offences against young girls spanning several decades. The offences included acts of indecency committed in approximately 1981, an assault and act of indecency in September 1984, and two counts of aggravated indecent assault committed in 2001. The 2001 offences occurred while the applicant was on parole for earlier sexual offences.

The applicant had been in custody from 24 April 2001, but the sentencing judge dated the commencement of all sentences from 18 January 2002, the date of sentencing. This meant the applicant received no credit for the period he had already spent in custody.

The applicant sought leave to appeal, contending that the sentencing judge erred in the commencement dates, in failing to give adequate weight to the guilty pleas, and in failing to reflect special circumstances sufficiently in the non-parole period.

  • Whether the sentences on each count should have commenced from the date the applicant entered custody (24 April 2001) rather than the date of sentencing
  • Whether the sentences on counts four and five (the 2001 aggravated indecent assault offences) were manifestly excessive, given the guilty pleas and the maximum penalty of 10 years
  • Whether the finding of special circumstances was properly reflected in the non-parole period, given that the effective total non-parole period differed only marginally from the statutory proportion

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. On the question of commencement dates, the court accepted that the sentences on counts one to three and the s.51A committal sentence should each be varied to commence on 24 April 2001, the date the applicant entered custody, rather than 18 January 2002.

On the question of the sentences for counts four and five, the court found the head sentences of eight years were excessive. Applying the principles concerning guilty plea discounts, including the proportions discussed in Thomson and Houlton, the court considered the gap between the eight-year sentence and the ten-year maximum was insufficient to reflect the utilitarian value of the guilty pleas and other mitigating factors. The court substituted sentences of seven years on each of those counts.

On special circumstances, the court found the sentencing judge had identified special circumstances but had not translated them into a meaningful reduction in the non-parole period. In effective terms, the non-parole period remained close to the statutory proportion. The court held that a non-parole period of approximately two-thirds of the head sentence was appropriate, and imposed a non-parole period of three years and eight months on counts four and five.

Orders Made

  • Leave to appeal against sentences granted
  • Appeals against the fixed-period sentences of 15 months on counts one, two, and three dismissed, but commencement date varied to 24 April 2001, expiring 23 July 2002
  • Appeal against the three-year fixed-period sentence on the s.51A committal offence dismissed, but commencement date varied to 24 April 2001, expiring 23 April 2004
  • Appeals against sentences on counts four and five allowed; those sentences quashed and replaced with imprisonment of seven years on each count, commencing 24 April 2004
  • Non-parole period of three years and eight months imposed on counts four and five, commencing 24 April 2004 and expiring 23 December 2007, on which date the applicant becomes eligible for release on parole

Key Takeaways

  • Where an offender has been held in custody prior to sentencing, sentences should ordinarily commence from the date custody began, not the date of the sentencing hearing; failure to do so will constitute a correctable error on appeal.
  • A guilty plea discount must be meaningfully reflected in the gap between the sentence imposed and the available maximum; a sentence close to the maximum, without adequate differentiation, may be found excessive.
  • Where a sentencing court finds special circumstances justifying a departure from the standard non-parole proportion, that finding must produce a materially different non-parole period; a nominal departure that leaves the effective proportion close to the statutory default will not be sufficient.
  • The Court of Criminal Appeal confirmed that a non-parole period of approximately two-thirds of the head sentence can be appropriate where genuine special circumstances are established.
  • Offending committed while on parole is a significant aggravating feature, but it does not displace the obligation to properly account for other sentencing considerations including pre-sentence custody and guilty plea discounts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51A (via Justices Act 1902), 61E(1), 61M(2), 76A
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Ryan (2001) 75 ALJR 815
- McHugh (1985) 1 NSWLR 588
- English [2000] NSWCCA 245
- Thomson and Houlton (2000) 49 NSWLR 383