Portnoy v The King - [2025] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Portnoy v R [2025] NSWCCA 60
Hearing dates: 26 March 2025
Date of orders: 23 April 2025
Decision date: 23 April 2025
Before: Davies J at [1]
Sweeney J at [2]
Huggett J at [43]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Noman SC DCJ in the District Court on 17 May 2024.
(4) In lieu thereof, sentence the applicant to an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years to date from 17 January 2024. The sentence will expire on 16 July 2027. The non-parole period will expire on 16 January 2026.

Catchwords:
CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Crimes (Sentencing Procedure Act) 1999 (NSW), ss 44(2C), 53A, s 54B

Cases Cited:
Aryal v R [2021] NSWCCA 2
Bojlevski v R [2024] NSWCCA 208
Dimian v R [2016] NSWCCA 223
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
Noonan v R [2021] NSWCCA 35

Category: Principal judgment
Parties: Alexander Portnoy (Applicant)
Crown (Respondent)
Representation:
Counsel:
K Averre (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/87434
Publication restriction: Statutory non-publication order re complainant’s
identity
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 May 2024

Before:

Noman SC DCJ

File Number(s):

2023/87434

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced in the District Court for two offences of sexual intercourse without consent, each of which had standard non-parole periods prescribed. The judge sentenced him by way of an aggregate sentence. The sentencing judge indicated sentences and non-parole periods for each offence. Her Honour stated that the close temporal and factual circumstances of the offences supported significant notional concurrency of the indicated sentences in the aggregate sentence.

The aggregate non-parole period exceeded the total of the two indicated non-parole periods by one month. The applicant submitted that that was an error.

The Court (Sweeney J, Davies and Huggett JJ agreeing) upheld the appeal and resentenced the applicant:

Affirming that the principle of totality applies to aggregate sentences: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; Aryal v R [2021] NSWCCA 2; Kliendienst v R [2020] NSWCCA 98; Noonan v R [2021] NSWCCA 35; Bojlevski v R [2024] NSWCCA 208

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Portnoy v The King

Details

AGLC: Portnoy v The King [2025] NSWCCA 60
Case: [2025] NSWCCA 60
Decision Date: 23 April 2025

CaseChat Overview and Summary

In Portnoy v The King, the respondent appealed against his sentence, which was imposed following a conviction for two offences of sexual intercourse without consent. The court of appeal was required to determine whether the aggregate non-parole period for the two offences, which was greater than the sum of the indicated non-parole periods, was lawful under the totality principle. The appeal centred on the application of the totality principle in sentencing and whether the aggregate non-parole period imposed constituted an error of law. The court of appeal held that the aggregate non-parole period, which exceeded the sum of the indicated non-parole periods, constituted an error of law. The court further held that the totality principle applies to aggregate sentences, and thus, the aggregate non-parole period imposed was unlawful. The respondent was resentenced by the court of appeal. The court ordered that the respondent be resentenced for the two offences, with the aggregate non-parole period not exceeding the sum of the indicated non-parole periods.

Orders