Chia v The King

[2023] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chia v R [2023] NSWCCA 63

Hearing dates:

15 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Before:

Leeming JA at [1]
Wilson J at [2]
Dhanji J at [3]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is allowed.

(3)   The sentence imposed on the applicant in the District Court on 8 August 2022 is quashed.

(4) In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix:

(a) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 6 years and 6 months commencing on 7 March 2019 and expiring on 6 September 2025;

(b)   a non-parole period of 4 years and 3 months commencing on 7 March 2019 and expiring on 6 June 2023; and

(c)   a balance of term of 2 years and 3 months commencing on 7 June 2023 and due to expire on 6 September 2025.

Catchwords:

CRIME – Appeals – Appeal against sentence – fraud offences – guilty plea entered for fraud offences – sexual assault offences – convictions with respect to sexual offences were appealed – convictions quashed and retrial ordered – applicant tried on fresh indictment containing sexual assault offences only – the ceiling principle – fundamental principle not drawn to sentencing judge’s attention – aggregate sentence to be imposed – leave to appeal granted – appeal allowed – resentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 61I, 192E(1)(a), 192E(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2A) 53A

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Evidence Act 1995 (NSW), s 191

Cases Cited:

Armstrong v R [2015] NSWCCA 273

Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186

Doudar v R [2021] NSWCCA 37

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255

Scott v R [2020] NSWCCA 81

SF v R [2022] NSWCCA 216

Towney v R [2022] NSWCCA 289

Valentine v R [2020] NSWCCA 116

Category:

Principal judgment

Parties:

Jeffrey Keong Chia (Applicant)
Regina (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
M M Swift (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/369241

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

8 August 2022

Before:

Wilson SC DCJ

File Number(s):

2017/369241

JUDGMENT

1. LEEMING JA: I agree with Dhanji J.

2. WILSON J: I agree with Dhanji J.

3. DHANJI J: The applicant, Mr Jeffrey Keong Chia, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Wilson SC DCJ in the District Court at Sydney on 8 August 2022.

4. The applicant pleaded guilty in the Local Court on 14 June 2018 to four counts of dishonestly obtain property by deception contrary to s 192E of the Crimes Act 1900 (NSW) (maximum penalty of 10 years imprisonment).

5. The applicant pleaded not guilty in the Local Court to two further offences of sexual intercourse without consent contrary to section 61I of the Crimes Act (maximum penalty 14 years imprisonment). Following a retrial, which is discussed in more detail below, the applicant was found guilty of the sexual offences by a jury in the District Court at Sydney on 28 June 2022.

6. Wilson DCJ sentenced the applicant to an aggregate term of 7 years imprisonment commencing on 1 January 2019 and expiring on 31 December 2025 with a non-parole period of 4 years and 6 months expiring on 30 June 2023.

7. The applicant seeks leave to appeal on the following ground:

“The sentencing judge erred in failing to take into account the aggregate sentence and aggregate non-parole period imposed upon the applicant by King SC DCJ on 2019 and failed to apply the ceiling principle applicable to the sentencing exercise.”

Brief overview of the procedural history

8. The applicant was originally arraigned in the District Court on an indictment containing six counts, four counts of dishonestly obtain property by deception (the fraud offences), and two counts of sexual intercourse without consent (the sexual assault offences). He had, in fact, pleaded guilty to the fraud offences in the Local Court, however, as a result of the fact those fraud offences were intrinsically connected with the sexual assault offences, they were placed on the indictment and the matter proceeded to trial before King SC DCJ. The jury found the applicant guilty of all six offences (presumably, in relation to the fraud charges, on the basis of his plea). An aggregate sentence with respect to all offences imposed.

9. The applicant appealed against his convictions with respect to the sexual assault offences. This Court quashed the convictions for the sexual assault offences, quashed the aggregate sentence and remitted the sexual assault charges to the District Court for re-trial.

10. As a result of the quashing, by this Court, of the convictions for the sexual assault offences but not the fraud offences, the applicant was tried on a fresh indictment containing only the sexual assault offences. On the applicant being found guilty of the sexual assault offences, it became necessary for Wilson DCJ to resentence the applicant for all six offences.

11. It is convenient to adopt a course taken by the sentencing judge and refer to the offences by their number on the indictment originally before King DCJ. The offences, as set out in that indictment were as follows:

Count 1: Dishonestly obtain property by deception contrary to s 192E(1)(a) of the Crimes Act;

Count 2: Dishonestly obtain property by deception contrary to s 192E(1)(b) of the Crimes Act;

Count 3: Dishonestly obtain property by deception contrary to s 192E(1)(b) of the Crimes Act;

Count 4: Sexual intercourse without consent contrary to s 61I of the Crimes Act;

Count 5: Sexual intercourse without consent contrary to s 61I of the Crimes Act; and

Count 6: Dishonestly obtain property by deception contrary to s 192E(1)(a) of the Crimes Act.

12. As noted above, the applicant was sentenced by Wilson DCJ to an aggregate term of 7 years imprisonment commencing on 1 January 2019 and expiring on 31 December 2025 with a non-parole period of 4 years and 6 months expiring on 30 June 2023. The indicative sentences were as follows:

Count 1:    12 months;

Count 2:    3 months;

Count 3:    4 months;

Count 4:    4 years with a non-parole period of 2 years and 7 months;

Count 5:    6 years with a non-parole period of 3 years and 10 months; and

Count 6:    9 months.

Facts of the offences

13. I set out the facts below, with a relatively brief summary of the fraud offences, but utilising the Crown’s facts on sentence accepted by Wilson DCJ in relation to the sexual assault offences.

14. On 1 August 2017 the 21-year-old complainant sat down inside St Mary’s Cathedral. The applicant, then aged 56, and with a long history of fraud offences but no history of any other offending, sat behind her and struck up a conversation. In a manner consistent with past frauds, he told her various lies about having lost his personal belongings including identification. He said that due to memory problems he was unable to get in touch with his secretary in Melbourne and required $4000 to pay a lawyer to recover his identification documents. He also said he needed somewhere to stay. The applicant accompanied the complainant to an ATM, and after requesting that she increase her withdrawal limit, the complainant withdrew $2000 and gave it to him (count 1). A short time later, at the applicant’s request, the complainant booked a hotel room in Potts Point. The applicant and complainant then walked to the hotel where the complainant checked into the hotel and paid, according to the figure in the indictment, $194.25 for the room (count 2). The complainant checked in believing the applicant did not have any identification. At some point prior to arriving at the hotel, the complainant gave the applicant about $500, being all the cash she had with her (count 3). The applicant convinced the complainant to come with him to have a look at the room. The applicant then made a significant departure from his usual criminal behaviour. It is convenient at this point to reproduce the facts as stated by Wilson DCJ:

“[The applicant] asked her to sit down, and she sat on the corner of the bed. The [applicant] gave the complainant a bottle of water to drink from the fridge in the room.

The complainant drank the water and continued to talk just normally with the [applicant]. He then, held her body up and threw her onto the bed. She was scared, the [applicant] told the complainant to stay calm and not to worry because he was not going to do anything. The complainant grabbed a pillow and held onto it because she was very scared. He took off her jacket and put it aside. She held onto the pillow very tightly. He took the pillow away from her. She grabbed the pillow again, and this happened a few times. The [applicant] kept telling the complainant to relax and he was not going to do anything. And the [applicant] kept trying to get close to the complainant and said, “I want to stay close to you.” She kept trying to get away, but he held her very tightly. They were lying face to face and the [applicant] was hugging the victim tightly.

The complainant kept her hands in front of her chest because she did not want the [applicant] to touch her. He said, “Don’t be scared, you need to stay still. Don’t move, you need to trust me.” She said, “Don’t be close to me.” He kept saying, “We met at church, not in a club. I’m not dangerous, we are like family.” The [applicant] then sat on top of the complainant and tried to kiss her on the left collar bone. She said, “You shouldn’t do this. You shouldn’t treat me like this.” She tried to push him, so he did not kiss her, but the [applicant] kissed her left collar bone.

He kept saying, “We met in a church, not in a club. I’m not dangerous.” The [applicant] asked the complainant to help him, and he put his hand underneath the complainant’s skirt and inserted his finger into her vagina. He kept kissing her near her collar bone, she said, “Don’t.” She felt very scared but could not get away because the [applicant]’s whole body was on top of her. The complainant held the buttons on her skirt to prevent the [applicant] from taking it off. He took off the complainant’s underwear. The [applicant] unbuttoned the skirt and took it off. [count 4]

She tried to move away but, ultimately, she was still underneath his hip. The [applicant] then put his penis into the complainant’s vagina and pressed his body against the victim. The complainant could not move her hands. The [applicant] used his mouth to suck the victim’s nipple and he kept on sucking her nipple. The [applicant]’s lower body was moving in a way that it was shaking the victim. The [applicant] stopped by himself and said, “Your lower parts are very tight, that made me come very fast.” The [applicant] walked into the bathroom. [count 5]

15. The complainant then used the bathroom and washed her genital area in the shower, described as “washing and washing and washing” because she felt very dirty. The complainant left to return to her aunt’s house where she was staying. The applicant walked her to the train station, despite her protestations. He asked her to transfer more money to an account linked to a card which the complainant had given the applicant together with the password. The next day, 2 August 2017, the applicant withdrew $1500 from that account (count 6).

16. The applicant telephoned the complainant that day and told her he wanted to return some of the money, and they arranged to meet. Rather than returning money, the applicant asked for more money and when the complainant said she did not have any, he asked her to borrow money from friends and relatives. She refused to do so.

17. The next day, the complainant made a complaint to a friend, and on 8 August 2017 she, together with that friend, reported the offences to the police.

18. The applicant was arrested on 5 December 2017. In the course of an electronic recorded interview, he made admissions to the fraud offences. He also admitted to engaging in sexual intercourse with the complainant but claimed it was consensual.

Proceedings on sentence

19. The proceedings on sentence were conducted on 13 October 2021. The Crown bundle contained the indictment for the trial before Wilson DCJ and the indictment for the trial before King DCJ; proposed facts on sentence and agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW); the applicant’s criminal record in New South Wales, Queensland, Victoria and Western Australia; the applicant’s custodial history; a victim impact statement; a Police Facts Sheet in relation to a previous offence of dishonestly obtain financial advantage by deception in August 2017; and a Court Attendance Notice and Police Facts Sheet for a prior offence of obtain money by deception in 2015. Tendered on behalf of the applicant was a report of Ms Anita Duffy, psychologist, dated 22 July 2018 and a handwritten letter of the applicant dated 29 July 2022. The applicant and the Crown also provided written submissions to the Court.

20. The report of Ms Duffy set out the applicant’s personal background. Ms Duffy reported that the applicant was born in Singapore and came to Australia in 1986. Ms Duffy noted that the applicant experienced a strict and sometimes cruel childhood. Ms Duffy reported that the applicant attended school in Singapore, before attending technical college and completing a course in hospitality/management. The applicant then joined the army before moving to Australia to set up the Australian office of a business. Ms Duffy reported that the applicant had been married and had a child but was divorced in 1990 and from that time had little contact with his daughter.

21. Ms Duffy reported that the applicant developed a gambling habit relatively late in his life, following the breakdown of his marriage. She stated that the applicant had, as a result of heavy parental gambling, been exposed to behaviour which caused gambling to become normalised. Ms Duffy found that the applicant satisfied the diagnostic criteria of a Gambling Disorder as outlined in the DSM-05. The applicant accrued significant debts as a result of his gambling. Ms Duffy noted that at the time of the offending, the applicant owed “thousands of dollars to money lenders, had lost his photo ID, and was homeless after his release custody.”

22. Ms Duffy reported that the applicant continued to deny the sexual assault offending and found the applicant to “fall into the average range” in an assessment of sexual recidivism.

23. Ms Duffy noted that since being in custody, the applicant had worked as a reception sweeper. She also reported that one of the applicant’s prison officers had commented to her about the applicant’s “unusually high work ethic and exemplary performance.”

24. In his letter to the Court, the applicant stated that “from the first day speaking to the police, [he has] admitted to the fraud charges.” He also stated that he wanted to convey to the complainant his “apology for [his] bad and selfish behaviour”. The applicant also set out his difficult conditions in custody as a result of the COVID-19 pandemic.

Remarks on sentence

25. In relation to the objective seriousness of the fraud matters, the sentencing judge noted that the relevant factors included that the offending occurred over a period of days, that the applicant had access to the complainant’s bank account and personal information, that the amount taken was about $4,000, and that there was some degree of sophistication given the applicant had developed a story which he used to target young female complainants. The sentencing judge found that count 1 fell at “the mid-range”, count 2 at “the low range as the sum involved was $194.25”, count 3 “below the mid-range”, and count 6 “at about the mid-range”. His Honour ultimately found that the fraud offences fell “at or about the mid-range moderated only by the relatively small quantum of sums involved”.

26. In relation to the objective seriousness of the sexual assault offences, his Honour noted that the relevant factors included that the offending involved both penile and digital penetration, that the applicant knew the complainant was not consenting to both sexual acts, that there was a degree of force used, that there was forced removal of the complainant’s clothing, and that the intercourse was not for a long time. The sentencing judge also considered that the applicant did not wear a condom, and that the complainant would have been terrified during the offending. His Honour further noted that the applicant ejaculated on the complainant’s lower stomach area and found that this act involved a certain degree of degradation. Ultimately, his Honour found the objective seriousness of the sexual assault offences “to fall just below the mid-range.”

27. In relation to the applicant’s subjective case, the sentencing judge noted the applicant’s “extensive history of dishonest offences”. A more detailed discussion of the applicant’s criminal history appears below.

28. The sentencing judge noted the applicant’s history of gambling, his background of normalised gambling behaviour, and the onset of his gambling disorder. The sentencing judge found that the applicant’s gambling was, at least, a reason for the offending. His Honour found that the applicant’s disadvantaged background of normalised gambling slightly reduced his moral culpability. His Honour also considered the applicant’s good behaviour in custody and accepted that being in custody during the COVID-19 pandemic had caused the applicant distress.

29. The sentencing judge found that the applicant’s offending was aggravated due to the fact that the applicant was on conditional liberty at the time of the offending. His Honour found the offending was mitigated because the injury of emotional harm was not more than one might expect in the circumstances and the offending was not part of any organised criminal activity.

30. His Honour found that, in respect of the sexual assault offences, the applicant was unlikely to reoffend. His Honour also found that the applicant had demonstrated remorse in respect of the dishonesty offences.

31. The sentencing judge made a finding of special circumstances based on “a prospect of rehabilitation in relation to the fraud offences”, the more onerous conditions of custody at that time as a result of COVID-19, and at least an arguable risk of institutionalisation.

32. His Honour found that, as the majority of the sentence related to the sexual assault offences, which were separate and distinct from the applicant’s prior dishonesty offending, there should only be some slight backdating of the sentence. A more detailed discussion of this aspect of the sentence appears below.

33. The sentencing judge applied a discount of 25% for the fraud offences, for the utilitarian value of the applicant’s pleas. The sentencing judge then imposed the sentence as set out above.

The ground of appeal

34. As noted above, the sole ground of appeal is that the sentencing judge erred in failing to take into account the aggregate sentence and aggregate non-parole period imposed upon the applicant after the first trial. The respondent conceded that it would be open to this Court to find that Wilson DCJ erred in failing to take into account the sentence imposed by King DCJ, in accordance with what is sometimes called “the ceiling principle”. This is the principal, stated in general terms, that where an offender is being sentenced after a re-trial, ordered as a result of a successful appeal against conviction, the sentence to be imposed should ordinarily be no longer than that imposed following the first trial. Put another way, an offender should generally be no worse off as a result of successfully pursuing an appeal.

34. The first observation that should be made is that neither party, the applicant, nor the Crown, drew this relatively fundamental principle of sentencing to the attention of the sentencing judge. Both counsel had a responsibility to assist the Court and, regrettably, failed to do so. Had his Honour been made aware of the principle, there is no doubt he would have applied it. Had that occurred, not only with this appeal have been avoided, but more fundamentally, the applicant would have been sentenced in accordance with proper principle.

35. As a result of the failure to bring the principle to the attention of the sentencing judge, the applicant was sentenced to the aggregate sentence referred to above, that is, 7 years and 6 months with a non-parole period of 4 years and 6 months, to date from 1 January 2019. As a result of that sentence, the applicant’s parole eligibility date is 30 June 2023, with the total sentence due to expire on 31 December 2025.

36. By contrast, the sentence imposed by King DCJ was an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 5 months, to commence on 7 March 2019. The applicant’s parole eligibility date pursuant to this sentence was 6 August 2023. The total sentence was to expire on 6 September 2025.

37. The term of the sentence imposed by Wilson DCJ is six months longer than that imposed by King DCJ. The non-parole period is one month longer. However, as a result of the earlier commencement date set by Wilson DCJ, the head sentence imposed expires just short of four months later than that imposed by King DCJ. The parole eligibility date resulting from Wilson DCJ’s sentence is just over one month earlier than that resulting from King DCJ’s sentence.

38. The different commencement dates are the result of different views taken as to the degree of concurrence to be allowed with respect to an earlier offence the applicant had been sentenced for in the Local Court on 20 September 2017. That sentence was with respect to five counts of dishonestly obtaining a financial advantage by deception. The applicant in that matter was sentenced to imprisonment for 2 years and 6 months with a non-parole period of 19 months commencing on 7 August 2017. He became eligible for parole with respect to that sentence on 6 March 2019. The total sentence expired on 6 February 2020. It is noted that these fraud offences were committed between 6 July 2017 and 7 August 2017, when he was arrested with respect them. It is further noted that while the offences the subject of this appeal were committed on 1 and 2 August 2017, the applicant was not arrested with respect to the current matters until 5 December 2017. Thus, the applicant was not on bail with respect to these previous charges at the time he committed the present offences.

39. The ceiling principle was the subject of consideration in Armstrong v R [2015] NSWCCA 273. Bathurst CJ (with the agreement of Price J, and Beech-Jones J, as the Chief Judge then was), said (at [41]-[46]):

“41   What has been described as the ‘ceiling’ principle in cases of conviction following a retrial, consequent upon a successful appeal, is well established. It was stated by Street CJ in R v Gilmore (1979) 1 A Crim R 416 (Gilmore) in the following terms (at 419-420):

“It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will, of course, necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account. For example, an escape from custody pending the new trial or the committing of other offences whilst on bail, resulting in either case in the imposition of a sentence prior to the new trial itself, would have a direct significance upon the non-parole period to be specified if the new trial results in a conviction. But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.

…

The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.”

42   Subsequently, in R v Bedford (1985) 5 NSWLR 711 (Bedford), Street CJ seemed to modify the principle to some extent. His Honour described it as a prima facie approach and, if a judge considers that a longer sentence is appropriate, he or she is obliged to give effect to his or her views. It was emphasised, however, that if this course was to be adopted, the judge should give a specific indication of the reasons as to why it was considered appropriate: Bedford at 714.

43   The principle was considered by the High Court in R H McL v The Queen [2000] HCA 46; 203 CLR 452 (McL). Gleeson CJ, Gaudron and Callinan JJ made the following remarks concerning the principle:

“[23] The process of discretionary reasoning appearing in the above passage involved no error of principle. In the course of argument in this Court, references were made, not by counsel, but by members of the Court, to the decision in R v Gilmore in which Street CJ referred to a consideration which a judge, re-sentencing after a second trial an offender who had earlier appealed successfully against the conviction at a first trial, ought to take into account. In brief, in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction.” [internal citations omitted]

McHugh, Gummow and Hayne JJ described the application of the principle as follows:

“[72] If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.”

45   In Tarrant v R [2007] NSWCCA 124; 171 A Crim R 425 (Tarrant), after reviewing the authorities, the Court stated (at [30]) that there was force in the proposition that Street CJ in Bedford watered down his statement of principle in Gilmore. The Court observed, however, that the observations of the High Court in McL appeared to have “restored Gilmore to prominence as an expression of the rationale of this approach to sentencing”: Tarrant at [30]. The Court emphasised that a “judge at a second trial need not perpetuate a sentence which is manifestly inadequate” or may “pass a heavier sentence if he or she makes [different] findings of fact … from those made by the judge at the first trial”: Tarrant at [31].

46   The application of the principle is relatively straightforward when the second sentence is for the same offence as that for which the offender was originally sentenced. When that is not the case, it is more complex…”

41. Beech-Jones J, in his concurring remarks (at [66]), noted that, in accordance with what had been said by the Chief Justice, the “proper application [of the ceiling principle] requires a consideration of not just the overall length of a sentence but all the components of the sentence including its commencement date relative to other sentences”, noting that the purpose of comparing the various components was to “avoid a person effectively being punished for mounting a successful appeal”.

42. On the present appeal, the applicant made the additional submission that the real effect of the sentence imposed by Wilson DCJ should be considered having regard to the impact of the COVID-19 pandemic on the onerousness of the applicant’s imprisonment. It is well known that it has been necessary for prison authorities to take steps to control the spread of the COVID-19 virus within the prison population. This, together with related staff shortages, has resulted in significantly more onerous conditions of custody within prisons: see for example Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [48]; Valentine v R [2020] NSWCCA 116; Scott v R [2020] NSWCCA 81; Doudar v R [2021] NSWCCA 37; SF v R [2022] NSWCCA 216. Before Wilson DCJ the applicant tendered a letter written by him setting out the impact of the restrictions on him. He described frequent lock-ins, on occasion for two or three days at a time. He described enduring up to 175 days of lock-ins while at the Bathurst Correctional Centre, where he had been housed for the majority of his time in custody, in addition to 14 days in the quarantine wing at the Metropolitan Remand and Reception Centre at Silverwater (MRRC), and further lock-ins when transferred to the MRRC for the purposes of attending Court.

43. Whether an applicant’s conditions in custody are a factor which could result in them being considered “worse off” after resentencing, and thus a basis on which to invoke the ceiling principle, does not need to be decided. It might be doubted. If a first trial is not affected by error, the sentence imposed will stand. This will be so, even if events not anticipated by the sentencing judge, such as the pandemic, result in the sentence being more harsh than expected. If, on the other hand, the first trial was affected by error but after a successful appeal, the same sentence was imposed on the offender, it is difficult to see that the offender would be “worse off” than he would have been had he not run the appeal. Of course, in this situation it would be, as it was in the present case, necessary for the sentencing judge at the second sentencing to take into account evidence by then available as to the offender’s custodial conditions.

44. The above question does not need to be decided given the respondent’s acceptance that the present case is in the “relatively straightforward” category referred to by Bathurst CJ in Armstrong v R at [46]. There is no issue that the sentencing judge did not take the ceiling principle into account, and thereby erred. It is therefore necessary to resentence the applicant.

Resentence

45. Error having been established, it is necessary that this Court re-exercise the sentencing discretion in order to determine whether “some other sentence, whether more or less severe is warranted in law and should have been passed”: s 6(3) Criminal Appeal Act: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. This is not a case amenable to a discrete adjustment as a result of a confined error: see Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255; Towney v R [2022] NSWCCA 289. Given the potential impact of the ceiling principle on the length of the total sentence, the non-parole period, and the commencement date, a simple mechanical adjustment is not possible.

46. The fraud offences involved the cynical manipulation of a young, and apparently naïve complainant. Having convinced the complainant to obtain accommodation for him, the applicant then, in a departure from his usual form of offending, moved from cynical to heartless by proceeding to sexually assault her. The sexual assault offences were clearly, by their nature, serious. The victim impact statement, written five years after the event, spoke of the ongoing trauma suffered by the complainant. Her distress is evident in her words. The course of her life changed, including being unable to continue with her studies, a loss of confidence, embarrassment to herself and her family, hating herself, and contemplating suicide. While psychiatric assistance had been recommended to her by a friend, she stated she feels too scared to engage in this course.

47. Wilson DCJ found the harm occasioned was not beyond that which would ordinarily be expected of such (serious) offending. This should not in any way be understood as diminishing the serious impact of the offences on the complainant. His Honour found the two sexual assault offences to “to fall just below the mid-range” of objective gravity. The Crown on this appeal challenged this assessment of objective gravity for the purposes of resentencing. Having regard to the manipulation of the complainant to lure her to the room, which involved at least a degree of premeditation, the complainant’s age and apparent naivety, and the manner in which the offences were committed, I would find them to be in the mid-range, with count 5 being more serious than count 4.

48. With respect to the fraud matters, the amounts of money involved, while no doubt significant to the complainant, were not, in the scheme of things large. As was noted by King DCJ, these charges would ordinarily have been expected to be dealt with in the Local Court. It appears that the only reason they were dealt with in the District Court was their connection with the sexual assault offences. On this appeal, the Crown submitted that this Court would find the fraud offences to be in the lower range of objective seriousness. I agree, although would note that counts 1 and 6, involving $2,000 and $1,500 respectively, are more serious than counts 2 and 3.

49. The applicant’s subjective case before the sentencing judge has been discussed above. The most striking feature is his terrible record for fraud. In 1994, in Western Australia, he was found guilty of fraud, but no conviction was recorded. In 1996, in Victoria, he received a sentence of 6 months for fraud. In 2001, he received a sentence of 3 years in Queensland (with recommendation for supervised release after 1 year). In 2002, he received a suspended sentence for an offence of fraud. In 2004, he received a sentence of 2 years with a non-parole period of 1 year for three counts of fraud. In 2006, having spent only 8 months out of prison, he received a further sentence of 2 years, this time with a non-parole period of 18 months for an offence of fraud. There was then something of a break in his offending, until 2012 when he received a sentence of 2 years in Victoria. In 2015, having returned to New South Wales, he committed a further three offences of fraud. He received a sentence of 2 years and 6 months with a non-parole period of 19 months, commencing on 9 November 2015. He was released on parole in relation to that sentence on 8 June 2017. He then committed a number of offences, including those the subject of this appeal, and the five fraud offences resulting in a further sentence of 2 years and 6 months with a non-parole period of 19 months, discussed above commencing on 7 August 2017. The fact that the present offences were committed whilst on parole (with respect to the 2015 offences) is a serious aggravating factor.

50. The Police Facts Sheets tendered with respect to earlier offending show that the applicant had tended to employ a very similar strategy in order to obtain money from young and naïve victims.

51. Evidence was tendered on resentence. That evidence established that, while in custody, the applicant has been working and has received positive reports in relation to this. He has not incurred any internal infringements and has progressed to a C2 classification.

52. There can be no doubt that there is no alternative to a full-time sentence of imprisonment with respect to the sexual assault offences. In relation to the fraud offences, having regard to the applicant’s record, I have reached the same view.

53. Given the applicant’s history, like the sentencing judge, I would accept that he is unlikely to reoffend with respect to the sexual assault offences. The same finding cannot be made with respect to fraud offences, however, he has the benefit of a finding that there is, at least, the prospect of rehabilitation.

54. I have regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant must be adequately punished in relation to the offences. With respect to the sexual assault offences, general deterrence, the need to make the applicant accountable, denunciation, and the recognition of harm done to the complainant are significant factors. Specific deterrence, given the finding that the applicant is unlikely to reoffend in this manner, is not as significant a factor in the sentencing exercise. With respect to the fraud offences, general and specific deterrence are important considerations, as is the need to make the applicant accountable for his actions. Denunciation and the recognition of harm, while important, are of less significance.

55. A discount of 25% will be applied with respect to the fraud offences having regard to the applicant’s plea in the Local Court with respect to these matters.

56. The exercise of passing sentence is affected by the two sentences that have already been passed for the same offences. I propose an aggregate sentence. Had individual sentences been imposed they would have been as follows:

Count 1:    9 months (reflecting a starting point of 12 months);

Count 2:    3 months (reflecting in a starting point of 4 months);

Count 3:    4 months (reflecting a starting point of 6 months and rounding down);

Count 4:    4 years and 6 months with a non-parole period of 3 years;

Count 5:    5 years with a non-parole period of 3 years and 6 months; and

Count 6:    9 months (reflecting a starting point of 12 months).

57. On re-sentence, this Court is constrained in the penalty that may be imposed for these serious offences by the application of the ceiling principle and the constraints on increasing a sentence on an offender’s appeal. With respect to the aggregate sentence, I would not impose a head sentence to result in a release date any earlier than that imposed by King DCJ. As a result, the most convenient course is to impose a sentence of 6 years and 6 months commencing on 6 March 2019. Having regard to the applicant’s conditions in custody, and to a lesser extent the need for rehabilitation, I would find special circumstances. More particularly, the applicant should not be worse off as to his parole eligibility date as a result of this appeal. To achieve this, I propose to impose a non-parole period of 4 years and 3 months. This non-parole period would expire on 6 June 2023.

58. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed on the applicant in the District Court on 8 August 2022 is quashed.

4. In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix:

1. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 6 years and 6 months commencing on 7 March 2019 and expiring on 6 September 2025;

2. a non-parole period of 4 years and 3 months commencing on 7 March 2019 and expiring on 6 June 2023; and

3. a balance of term of 2 years and 3 months commencing on 7 June 2023 and due to expire on 6 September 2025.

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Decision last updated: 22 March 2023