GP v R

[2017] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GP v Regina [2017] NSWCCA 200

Hearing dates:

16 August 2017

Date of orders:

23 August 2017

Decision date:

23 August 2017

Before:

Macfarlan JA at [1]
Button J at [2]
Hamill J at [3]

Decision:

1. Application for leave to appeal granted.

2. Appeal upheld.

3. Quash the aggregate sentence imposed by Judge Norton SC.

 4. In lieu thereof, the applicant is sentenced to an aggregate non-parole period of six years commencing 1 December 2018 and expiring on 30 November 2024. There will be a balance of term of four years commencing on 1 December 2024 and expiring 30 November 2028.

Catchwords:

CRIMINAL APPEAL – application for leave to appeal against sentence – serious child sexual assault offences – special circumstances – where sentence accumulated on pre-existent sentences – where result of accumulation was to reduce period during which offender eligible for parole – where resultant non-parole period 81% of total sentence – whether result of accumulation inadvertent – appeal allowed and offender re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Sentencing Act 1989 (NSW)

Cases Cited:

Kentwell v The Queen (2014) 252 CLR 601 at [42]; [2014] HCA 37
McKittrick v R [2014] NSWCCA 128
R v Bolamatu [2002] NSWCCA
R v Brindley (1993) 66 A Crim R 204
R v Close (1992) 31 NSWLR 743
R v GDR (1994) 35 NSWLR 376
R v Gill [2002] NSWCCA 93
R v Simpson (1992) 61 A Crim R 58
Stoeski v R [2014] NSWCCA 161
Tuivaga v R [2015] NSWCCA 145

Category:

Principal judgment

Parties:

GP (Applicant)
Regina (Respondent Crown)

Representation:

Counsel:
Mr T Quilter (Applicant)
Ms M England (Respondent Crown)

  Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent Crown)

File Number(s):

2012/291238

Publication restriction:

No publication of the name of the applicant or the victims.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 April 2016

Before:

Judge Norton SC

File Number(s):

2012/291238

Judgment

1. MACFARLAN JA: I agree with Hamill J.

2. BUTTON J: I agree with Hamill J.

3. HAMILL J: The applicant (whose name is subject to a non-publication order) seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Norton SC in the District Court sitting at Parramatta on 15 April 2016. He was sentenced in respect of three offences committed in 2004 and 2005 of which he was found guilty by a jury on 1 June 2015. There were two counts of committing an act of indecency on a child under the age of ten years and one count of sexual intercourse with a child less than ten years. [1]

   1. The maximum penalties for these offences are 7 and 25 years. There is a standard non-parole period of 15 years for the sexual intercourse offence.

4. Judge Norton sentenced the applicant to an aggregate sentence of 10 years with an aggregate non-parole period of 7½ years. Her Honour complied with the relevant statutory provisions by indicating the individual sentences for each count that would have been imposed had an aggregate sentence not been imposed. [2] No complaint is made about those indicative sentences or the total aggregate sentence of 10 years. Rather, the application is directed solely to the length of the non-parole period and the failure of the trial judge to find “special circumstances”.

   2. Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b).

5. The argument arises because the sentence was partially accumulated upon a pre-existing sentence imposed by Judge Payne on 26 February 2016. Judge Payne dealt with the applicant by imposing individual sentences in relation to five counts of child sex offending, which occurred between 1985 and 1994, in relation to which the applicant had been again convicted after trial by a jury. Judge Payne imposed individual sentences for each count, making them partially concurrent and partially cumulative. The total effect of the sentence imposed by Judge Payne was a total sentence of 8 years with a total non-parole period of 5 years. It will be seen that the structure of that sentence allowed for a balance of term of 3 years during which the applicant may have been eligible for parole. The non-parole period was 62.5% of the total sentence. Her Honour found special circumstances for a number of reasons, including the fact that the sentences were to be partially accumulated.

6. The result of the partial accumulation of the sentence imposed by Judge Norton is that the applicant is to serve a total combined sentence of 13 years and 6 months with a total combined non-parole period of 11 years. As a result of the partial accumulation, the period during which the applicant may be eligible for parole was reduced from 3 years to 2½ years. The total combined non-parole period is now about 81.5% of the total combined sentence.

7. The applicant relies on a single ground of appeal in the following terms:

“The learned sentencing judge overlooked the need to consider an appropriate non-parole period as a proportion of the total sentences.”

8. In essence, the applicant complains that her Honour ought to have found “special circumstances” pursuant to s 44 of the Crimes (Sentencing Procedure) Act in the fact of the accumulation and the impact that would have on the proportion between the total sentence and the total non-parole period as well as the length of the period during which the applicant would be eligible for parole (that is, the balance of term).

9. In the course of the hearing of the appeal, the issue for the Court was distilled into the question of whether the learned sentencing judge was conscious of, or adverted to, the proportion between the non-parole period and the total sentence or whether the impact of the accumulation in that regard was inadvertent.

10. The facts of the three offences with which Judge Norton was concerned were set out in her Honour’s judgment as follows:

“At all relevant times, the offender was married to MP. MP is the aunt of PL. PL is the victim's mother. MP's daughter EP is PL's cousin. EP has a son named KB. PL and CL used to visit MP at the house she shared with the offender when CL was growing up. EP and KB also lived in the house on and off. CL and KB used to play together; all the offences occurred at the offender and MP's house. The victim was aged 7 or 8 at the time of the offences.

COUNT 1: ACT OF INDECENCY TOWARDS A PERSON UNDER 10

The offender asked the victim to go somewhere and took her out to the back [of the house] behind a bush. He asked her if she wanted to see something and she said ‘yes’. He showed her his penis and asked if she wanted to put it in her mouth. She said ‘no’ and walked away. She told her mother that she wanted to leave as she did not feel well.

COUNT 2: SEXUAL INTERCOURSE WITH A CHILD UNDER 10

The offence occurred a couple of weeks after count 1. The victim was lying in the offender and MP's bed with KB watching cartoons as she was not feeling well. When KB left the room the offender pulled back the blankets, pulled down her pants and inserted his finger or fingers into her vagina. The victim described it as feeling gross and disgusting. This lasted for a couple of seconds. The offender stopped and pulled the cover back over the victim as soon as they heard KB returning. The victim pulled her pants back up under the covers.

COUNT 3. ACT OF INDECENCY TOWARDS PERSON UNDER 10

This offence happened when the victim was staying at the offender's and MP's house whilst her mother was in hospital having her younger sister PL. The victim was playing with KB in his room when the offender came in. He sat down on the bed and showed them a pornographic magazine. The victim said that he ‘started flicking through it and was telling us to look at all these pictures.’”

11. Judge Payne recounted the facts of the offences with which she was dealing in the following terms:

"Count 1: Sexual intercourse without consent with person under sixteen (18 January 1985 to 15 April 1987) (s 61D(1))

The victim was between the ages of five and seven years. The victim was living with her mother and the offender at her grandmother's home in Northcott Road. The offender had her stand up on the lounge and licked her vagina. She was not wearing any pants or underpants.

Count 2: Sexual intercourse with person under ten years (1 April 1986 to 15 April 1988) (s 66A)

The victim was between the ages of six and eight. The offence occurred in a house at 9 Shannon Street in Lalor Park, where the victim lived with her mother and the offender. The offender stood her on an L-shaped lounge facing him. He told her to look out the window. She was not wearing any pants. The offender licked her vagina while he masturbated. The offence came to an end when the victim's mother's friend, Sheryl Jones, knocked on the door.

Count 3: Aggravated (under sixteen and under authority) act of indecency (1 January 1990 to 9 July 1994) (s 61E(2A) / s 61O(1))

The victim was between the ages of ten and fourteen. The offence occurred in the family home shared by the offender, the victim's mother and the victim at 47 Patterson Road. The victim's mother was in the bath. The victim was sitting in the lounge room watching television with the offender. They were sitting on opposite lounges. The offender pulled his penis and testicles out over the top of his pants. The offender asked the victim to lick his testicles and she did. The offence came to an end when they heard the bath water emptying. By this point in time, the offender was regularly making the victim lick his testicles.

Count 4: Sexual intercourse with person between ten and sixteen (29 January 1991 to 9 July 1994) (s 66C(2))

The victim was between the ages of eleven and fourteen. The offence occurred at the Patterson Road house. The victim said that she had just started high school. She started high school on 29 January 1991.The Crown submits that the Court would accept beyond a reasonable doubt that she had only just started high school, which would mean that this offence occurred when she was close to the age of eleven.

I accept this submission.

The victim and the offender were alone in the house. The victim was in the lounge room when the offender called her into the bedroom he shared with the victim's mother. He had a pornographic video playing and asked the victim what she thought about it. The video was a man and a woman in a '69' position. The offender asked her if she would like to try that. The victim lay on the bed on her back. The offender climbed on top of her and licked her vagina. He asked her to lick his testicles, which she did.

Count 5: Sexual intercourse with person between ten and sixteen (29 January 1991 to 9 July 1994) (s 66C(2))

The victim was between the ages of eleven and fourteen. This offence also occurred in the Patterson Road home. The victim said that it occurred at around the same time as count 4. The Crown accordingly submits that the Court should find beyond a reasonable doubt that this offence occurred when the victim was close to the age of eleven.

I accept this submission.

This offence also occurred in the bedroom with pornography playing on the television in that room. The victim was lying with her head on the pillows. The offender asked her to take her clothes off, which she did. He took his clothes off too.

The offender rubbed his penis up and down on the victim's vagina. He then tried to insert his penis into her vagina but it hurt a lot and the victim told him to get off her.

The complainant, when count 1 was committed, was aged, as noted, between five years and seven years. This is the first offending the complainant can remember.

Count 2, the complainant, as noted, would have been aged between six and eight.

Count 3, the complainant, as noted, would have been aged between ten and fourteen.

In relation to counts 4 and 5, it was accepted by the parties the complainant would have been closer to eleven rather than fourteen (the age range being eleven to fourteen). As already noted, I am so satisfied of this beyond reasonable doubt.

The complainant was born on 9 July 1979. She would have turned eleven on 9 July 1990 and twelve on 9 July 1991.

Accordingly, the total period of the offending is from when the complainant was aged five years to age eleven to twelve years, a period of in the order of six or seven years.”

12. These facts constitute a very serious example of offences of their kind. Further, the applicant pleaded not guilty and remained remorseless in respect of both sets of offences. The offences occurred many years apart and the applicant had a criminal record including offences of rape for which he was convicted and sentenced to a lengthy period of imprisonment in the early 1980s.

13. In those circumstances, it is not surprising that the applicant did not attempt to argue that the sentences, either individually or in their totality, were excessive.

14. Section 44 of the Crimes (Sentencing Procedure) Act relevantly provides:

"44 Court to set non-parole period

(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

15. The requirement that the non-parole period be not less than 75% of the total sentence has been part of the law since the introduction of the Sentencing Act 1989. That “statutory ratio”, as it is often described, has been part of the sentencing law of New South Wales since 1989 although the legislation and terminology have changed from time to time. The provision, in its various forms, has provided fertile ground for appellate lawyers. [3] The non-parole period must not be less than 75% of the total unless there are special circumstances. There is no statutory requirement that a sentencing judge must give reasons for setting a non-parole period that is more than 75% of the total sentence. [4] However, it is generally accepted that the question of “special circumstances” should be considered (and referred to) “in every case” and that reasons may be required if the non-parole period exceeds 75% of the total sentence. [5]

    3. Hunt CJ at CL said in 1993 that “the most common submission made in sentencing appeals to this court related to [the predecessor to s 44]”: R v Brindley (1993) 66 A Crim R 204 at 207.

    4. R v GDR (1994) 35 NSWLR 376 at 379.

    5. See, for example, R v Brindley at 204 and R v GDR at 379.

16. It was held at an early stage that accumulation of sentences may amount to special circumstances. In R v Simpson (1992) 61 A Crim R 58 Hunt CJ at CL said at 60-61 that “where the minimum term is accumulated upon an existing minimum term, that fact may of itself constitute special circumstances justifying a departure from the one third rule”. His Honour went on to say at 61:

“I am satisfied that, by a logical extension of that principle, special circumstances may also exist in the appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and ineffective additional term – even if it is only to produce an effective additional term equal to, or roughly equivalent to, one third of the total minimum term which the prisoner is to serve.”

17. Similar statements have been made in a large number of other cases. [6]

    6. See, for example, R v Close (1992) 31 NSWLR 743 at 744-745 (Sheller JA), 748-749 (Hunt CJ at CL) and 753 (Sully J), R v Bolamatu [2002] NSWCCA and R v Gill [2002] NSWCCA 93.

18. In McKittrick v R [2014] NSWCCA 128, Simpson J (as her Honour then was) said:

“[36] This has come to be called the ‘statutory ratio’, which is not to be departed from unless special circumstances are found. The effect of s 44(2) is that a sentence in accordance with ‘the statutory ratio’ will be made up of a non-parole period that is 75 per cent of the head sentence. Where the court decides to impose a non-parole period in a lesser proportion, it is required to state its reasons for doing so.

[37] There is no equivalent requirement for reasons where the non-parole period exceeds 75 per cent of the head sentence. Nevertheless, it is usually considered appropriate that reasons be given for such a decision.”

19. Her Honour discussed the history of the provision and referred to the second reading speech introducing the 1989 legislation. Her Honour said at [42]:

“Nowhere in the speech was any explanation given for the selection of 75 per cent as the proportion of the overall sentence required to be served in custody (other than to meet an election promise). What is plain is that the intention was that the proportion should apply, in cases of multiple offending, to the overall sentence, that is, the total of the sentences imposed. The structure of individual sentences is, at most, a secondary consideration.”

20. Adamson J made the following observation at [154]:

“The statutory prohibition in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on structuring a sentence such that the ratio is smaller than the statutory ratio unless special circumstances are found requires reasons to be given for any such finding. There is no requirement for reasons to be given when the ratio between the non-parole period and the total term exceeds the statutory ratio. However where reasons are not given for the excess, there is at least an implication that the Sentencing Judge has not appreciated the mathematical effect of two sentences on the overall ratio. I am satisfied that this is what has occurred in the instant case.”

21. However, as was pointed out by Ms England in her helpful submissions on behalf of the respondent, there is no absolute rule that an accumulated non-parole period must comprise 75% of the total sentence. Nor is there any statutory requirement for reasons to be given when a non-parole period is greater than 75% of the total sentence. She pointed to cases in which the Court was able to infer that the sentencing judge had adverted to the impact of the accumulation: see, for example, Tuivaga v R [2015] NSWCCA 145 and Stoeski v R [2014] NSWCCA 161.

22. Ultimately, the parties agreed that the question is whether the record of proceedings leads to an inference that the matter was considered or adverted to or not. Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation. That was not done in this case. Both the transcript and the judgment on sentence are silent on the issue. There is a discussion of the principle of totality both in submissions and in the remarks on sentence. It is clear that her Honour appropriately and properly applied such principles in assessing the degree of accumulation in terms of the total effective sentence.

21. However, there is nothing to support the inference that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. In particular, her Honour made no remark concerning the fact that the proportion settled upon by Judge Payne (62.5%) would, as a result of the accumulation, become 81.5%. Equally, there is nothing in the arguments or in the remarks on sentence to suggest that her Honour considered the fact that the 3 year balance of term settled upon by Judge Payne would be reduced to 2 ½ years upon the accumulation of the sentence.

22. No submissions were made by either counsel to assist her Honour, or to remind her, of the many cases in which it has been held that the accumulation of sentences may amount to special circumstances. In fact, neither party referred to special circumstances until her Honour raised the matter herself at the conclusion of defence counsel’s brief submissions on sentence. Even then, no reference was made to the impact of the accumulation on the proportion between the head sentence and a non-parole period.

23. In spite of the earnest submissions of Ms England, I am satisfied that Judge Norton did not advert to this matter and that the deviation from the “statutory ratio” was an inadvertent outcome of the accumulation.

24. Accordingly, the applicant’s sole ground of appeal must be upheld.

25. Counsel for the applicant correctly submitted that if error was demonstrated, the Court must consider the sentencing discretion afresh. [7] I am satisfied that it is appropriate to impose an aggregate sentence in respect of the three offences. No submission was made that the Court should interfere with the total sentence of 10 years or that there was any error in the indicative sentences. Having considered the seriousness of the offending and the applicant’s criminal history, I am not satisfied that a different, less severe, total period of imprisonment is warranted. Nor am I satisfied that less severe indicative head sentences are warranted. Those indicative sentences were 18 months (count 1), 12 months (count 3) and 10 years (count 2). I would adopt those indicative head sentences for the purpose of imposing an aggregate sentence. The indicative non-parole period for count 2 will reflect the finding of special circumstances in relation to the aggregate sentence. Pursuant to s 54B(4) Crimes (Sentencing Procedure) Act, I indicate a non-parole period of six years for count 2.

    7. See Kentwell v The Queen (2014) 252 CLR 601 at [42]; [2014] HCA 37.

26. I am satisfied that the sentence should be partially accumulated on the sentence imposed by Judge Payne and that the commencement date settled upon by Judge Norton (1 December 2018) is the appropriate date. In re-sentencing the applicant, I am satisfied that there are special circumstances arising from the accumulation of the sentence on the sentence imposed by Judge Payne and other matters referred to by Judge Payne, such as the need for the applicant to have an extended period on parole to re-integrate into the community. The Court should intervene to resentence the applicant in respect of the non-parole period. My intention is to impose a total cumulative non-parole period (9½ years) which is around 70% of the total cumulative sentence (13½ years). The 70% proportion falls between the proportion provided for by Judge Payne (62.5%) and the statutory ratio (75%).

27. Accordingly, the orders that I favour are as follows:

1. The application for leave to appeal is granted.

2. The appeal is upheld.

3. Quash the aggregate sentence imposed by Judge Norton SC.

4. In lieu thereof, the applicant is sentenced to an aggregate non-parole period of six years commencing on 1 December 2018 and expiring on 30 November 2024. There will be a balance of term of four years commencing on 1 December 2024 and expiring 30 November 2028.

**********

Endnotes

Amendments

24 August 2017 - Typographical error

24 August 2017 - Typographical error

08 September 2017 - Amended so that indicative non-parole period reflects finding of special circumstances in respect of aggregate sentence.

Decision last updated: 08 September 2017