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113
Court of Criminal Appeal 12 April 2002

Regina v MJR [2002] NSWCCA 129 revised - 18

[2002] NSWCCA 129

Also reported as (2002) 54 NSWLR 368 (2002) 130 A Crim R 481
Sexual offences

Citation: Regina v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judges: Spigelman CJ, Mason P, Grove J, Sully J, Newman AJ

Background

The applicant pleaded guilty in the Local Court to six charges of serious sexual misconduct against his two daughters, committed during the 1980s. Five charges involved the elder daughter and one involved the younger daughter. He was committed to the District Court for sentencing, where he also asked the court to take into account a further ten offences listed on a Form 1, bringing the total matters for sentencing to sixteen.

The offences included eleven acts of sexual intercourse (digital penetration) and five acts of indecent assault (indecent fondling). Judge Backhouse of the District Court sentenced the applicant and, in doing so, applied what she considered to be the sentencing practice prevailing at the time the offences were committed in the 1980s, rather than contemporary sentencing levels.

The applicant sought leave to appeal against the sentences imposed. Because the approach of applying historical sentencing patterns had produced a conflict in prior decisions of the Court of Criminal Appeal, the appeal was heard by a bench of five judges.

  • Whether a sentencing court should apply sentencing practices that prevailed at the time the offences were committed, rather than practices current at the time of conviction and sentence.
  • Whether the decision in R v PLV (2001) 51 NSWLR 736, in which Spigelman CJ had rejected the historical sentencing pattern approach, was correctly decided.
  • Whether, in the circumstances of this case, the sentences imposed were excessive and warranted interference on appeal.

Decision

The historical sentencing pattern principle. The Court, sitting as a bench of five, confirmed that a sentencing judge should have regard to the range of sentences that would have been imposed at the time of the commission of the offences. This principle had been established in R v Shore (1993) 66 A Crim R 37, and applied in R v Watson and R v Moon, though it had not been drawn to the attention of Spigelman CJ when he expressed a contrary view in PLV. The Chief Justice, acknowledging this prior line of authority, accepted that his earlier opinion in PLV was incorrect.

Practical difficulties acknowledged. The Court was careful to note that applying this principle is inherently difficult. A sentencing court needs clear evidence of what sentencing patterns actually looked like at the relevant time, and the absence of such material will limit the usefulness of the exercise. In this case, there was no evidence of a demonstrably more lenient sentencing pattern in the 1980s, which constrained the application of the principle.

The appeal outcome. Leave to appeal was granted and the appeal was allowed, but only in respect of two of the six charges (Charges 4 and 6). The Court re-sentenced the applicant on those charges. The remaining sentences were confirmed. Even in re-sentencing, the Court emphasised the serious objective criminality across all sixteen matters and the persistent nature of the offending over approximately seven years.

Orders Made

  • Leave granted to appeal against sentence.
  • Appeal against sentence allowed, but only in respect of the sentences passed on Charges 4 and 6.
  • Those two sentences were quashed and the applicant was re-sentenced:
  • On Charge 4 (taking into account Form 1 offences): imprisonment for 6 years and 6 months, commencing 13 November 2000, with a non-parole period of 5 years expiring 12 November 2005.
  • On Charge 6: fixed term of imprisonment for 5 years, commencing 13 November 2000, to be served concurrently with the other sentences.
  • Sentences on Charges 1, 2, 3 and 5 confirmed.
  • Overall effective sentence reduced from 9 years to 6 years and 6 months, with non-parole period reduced from 6 years to 5 years.

Key Takeaways

  • The NSW Court of Criminal Appeal, by a bench of five, confirmed the principle established in R v Shore: where offences were committed many years before sentencing, the sentencing court should have regard to the sentencing range that would have applied at the time of the offences.
  • Spigelman CJ expressly departed from his earlier contrary view in R v PLV, acknowledging the existence of prior authority he had not been shown in that case.
  • Applying the historical sentencing pattern principle requires evidence of what those patterns actually were; without such evidence, the principle cannot do meaningful work in reducing a sentence.
  • Where no evidence of a more lenient historical sentencing range is placed before the court, a sentencing judge is not obliged to speculate about or reconstruct past practices.
  • Grove J and Mason P both indicated that, absent the weight of prior authority, they would have been inclined to agree with the view Spigelman CJ had originally expressed in PLV, underscoring that this remains a principle accepted by the Court on the basis of precedent rather than intuitive appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)
- Criminal Legislation (Amendment) Act 1982 (NSW)
- Commonwealth Crimes Act 1914
- Sentencing Act 1991 (Vic)
- Acts Interpretation Act 1954 (Qld)
- Interpretation Act 1967 (ACT)

Cases
- R v PLV (2001) 51 NSWLR 736
- R v Shore (1993) 66 A Crim R 37
- R v Watson [1999] NSWCCA 227
- R v Moon (2000) 117 A Crim R 497
- Radenkovic v The Queen (1991) 170 CLR 623
- Siganto v The Queen (1998) 194 CLR 656
- The Queen v L (1992) 174 CLR 379
- Mill v The Queen (1988) 166 CLR 59
- Wong v The Queen [2001] HCA 64
- R v Todd [1982] 2 NSWLR 517
- R v T (1990) 47 A Crim R 29