R v JMP - [2003] NSWCCA 369

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v JMP [2003] NSWCCA 369

FILE NUMBER(S):
60315/03

HEARING DATE(S): 11 November 2003

JUDGMENT DATE: 18/12/2003

PARTIES:
Crown - Respondent
JMP - Applicant

JUDGMENT OF: Barr J Miles AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0929

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
M Grogan - Crown
A Haesler - Applicant

SOLICITORS:
CK Smith - Crown
S O'Connor - Applicant

CATCHWORDS:
application for leave to appeal against severity of sentences
sexual assault on own children
form 1 offences
history of offences
assistance to authorities
parity of sentences of co-offender
concurrency of sentences
totality principle

LEGISLATION CITED:
Crimes Act 1900, s 61E, s 66C(1)
Crimes (Sentencing Procedure) Act 1999, s 33

DECISION:
(a) grant leave to appeal
(b) allow the appeal
(c) quash the sentence on count 8 and set aside the non-parole period on count 8 and in lieu thereof, substitute (i) a period of imprisonment of eight years to commence on 3 October 2001 and expire on 2 October 2009 and (ii) a non-parole period to commence on 3 October 2001 and expire on 2 April 2007, and
(d) set aside the non-parole period on counts 6 and 7 and, in lieu thereof, substitute, on each count, a non-parole period to commence on 3 October 2001 and expire on 2 April 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60315/03
BARR J
MILES AJ
Thursday 18 December 2003

REGINA v JMP

Judgment

BARR J: I agree with Miles AJ.
MILES AJ: This is an application for leave to appeal against the severity of sentences imposed on the applicant by His Honour Judge Gibson QC on 31 January 2003 after she continued her pleas of guilty in the Sydney District Court to eight counts involving sexual assault on her own children.
The eight counts, omitting the naming of the children, were:
Count 1: Between 1 January 1986 and 31 December 1986 in the State of New South Wales she did have sexual intercourse with R, a person then under the age of sixteen years, namely ten or eleven years, without her consent and knowing she was not consenting;
Count 2: Between 22 June 1988 and 27 June 1990 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten or eleven years and under her authority;
Count 3: Between 27 June 1988 and 27 June 1990 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten or eleven years and under her authority;
Count 4: Between 27 June 1989 and 27 June 1992 at Sydney in the State of New South Wales, she did have sexual intercourse with J, a person under the age of sixteen years, namely ten, eleven or twelve, and under her authority;
Count 5: Between 27 June 1989 and 27 June…

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 R v JMP

Details

AGLC: R v JMP [2003] NSWCCA 369
Case: [2003] NSWCCA 369
Decision Date: 18 December 2003

CaseChat Overview and Summary

The applicant, JMP, sought leave to appeal against the severity of her sentences imposed by His Honour Judge Graham, in relation to multiple counts of sexual assault against her children. The applicant's appeal hinged on the perceived excessiveness of the sentences, particularly focusing on the principle of totality and the parity of sentences with her co-offender, KS.

The primary legal issues involved whether the trial judge erred in his application of the totality principle, as articulated in Pearce v The Queen, and whether the sentences were disproportionately severe in comparison to those imposed on KS. The applicant argued that the judge misapplied the totality principle by adjusting the sentence for one offence to reflect the overall criminality, rather than allowing the overall criminality to influence the accumulation of sentences.

In addressing these issues, the court examined the reasoning of the trial judge and noted that while the principle from Pearce v The Queen requires individual sentences to be fixed for each offence before considering cumulation, the Australian jurisprudence allows for some flexibility, particularly when considering offences admitted in writing. The court held that while the principle in Pearce is authoritative, it does not preclude a sentencing court from taking into account the overall criminality of an offender's conduct, provided the approach does not contravene the imperatives set out in the High Court's decision.

The court concluded that the sentences were not manifestly excessive, taking into account the heinous nature of the offences and the need for deterrence and retribution. The disparity with the sentences of KS was also considered, but it was found that the sentences reflected the gravity of the applicant's crimes and the need to protect the community.

The application for leave to appeal against the severity of the sentences was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The following sentences were imposed:Count 1: Terms of imprisonment of four years commencing on 3 October 2001 and expiring on 2 October 2005 with a non-parole period of three years commencing on 3 October 2001 and expiring on 2 October 2004;Counts 2, 4, 5: Terms of imprisonment of five years and seven months commencing on 3 October 2001 and expiring on 2 May 2007 with a non-parole period of four years and two months commencing on 3 October 2001 and expiring on 2 December 2005;Count 3: Term of imprisonment of six years and five months commencing on 3 October 2001 and expiring on 2 March 2008 with a non-parole period of four years and ten months commencing on 3 October 2001 and expiring on 2 August 2006.Counts 6 and 7: Term of imprisonment of eight years commencing on 3 October 2001 and expiring on 2 October 2009 with a non-parole period of six years commencing on 3 October 2001 and expiring on 2 October 2007;Count 8: Terms of imprisonment of nine years and seven months commencing on 3 October 2001 and expiring on 2 May 2011 with a non-parole period of seven years and two months commencing on 3 October 2001 and expiring on 2 December 2008.Facts The facts of the offences were presented to His Honour in a statement prepared by the Office of the Director of Public Prosecutions. His Honour stated that he had read the statement but did not recite the facts. They may be summarised as follows. The applicant was born on 11 April 1948. She is now 55 years old. She is the mother of five children. Three of them, R, the elder daughter born 15 April 1975, J, a son born 27 June 1979, and F, the younger daughter born 4 October 1980, were victims of the offences for which she was sentenced. There are two older sons with whom the present proceedings were not concerned. The applicant separated from her husband, the father of the children, in about 1980 and went to live with her brother in suburban Sydney. There she met a neighbour, KS, with whom she formed a relationship. They maintained separate households. From time to time KS would stay at the house of the applicant and from time to time the children would sleep over at the house of KS. The offences occurred over a period of some three years and six months. The children were subjected to sexual abuse in episodes in which both the applicant and KS participated. The offence on count 1 was committed at the applicant’s home some time in 1986 when the elder daughter was 10 or 11 years old. The applicant woke the child and took her into the bedroom where she was placed on the bed. KS penetrated the child with his penis and performed other acts of sexual assault on the child while the applicant lay naked on the bed. The offences on counts 2 to 4 were committed between mid 1988 and mid 1990 when the boy was under the age of 16. The applicant took him from the bed in the house belonging to KS and into the main bedroom where she removed his clothes. KS and the applicant were also naked. KS performed fellatio on the boy (count 2). The applicant kissed the boy in the mouth with her tongue (item 2 on form 1) and with her encouragement, the boy performed fellatio on KS (count 3). On another occasion when the boy was 11 or 12, there was a similar incident where KS performed fellatio on the boy (count 4). The boy was required to reciprocate (count 5) with the applicant kissing the boy in the mouth with her tongue (item 3 on form 1).

Evidence

Evidence Before The Court

It will be necessary to go to the considered reasons of Judge Graham in the sentencing of KS, since disparity with that sentence is proposed as a ground of the appeal by the present applicant.Further evidence before the Court An affidavit sworn by the solicitor for the applicant on 3 November 2000 was admitted into evidence for the purposes of the application. The basis of its admission was limited. In so far as it was relevant to the ground of disparity with the subsequent sentences imposed on KS, it did not constitute new evidence and was admitted without the need to satisfy the usual tests in that regard. Otherwise its relevance is limited to the matters this Court should take into account in the event of re-sentencing the applicant, should that become necessary.Excessive sentence on count 8 The first and fifth proposed grounds of appeal may be dealt with together, as they raise the same or similar issues. In sentencing for the offence in count 8 (cunnilingus on the younger daughter), His Honour said:“Count 8 is the count which I take into consideration, the matters in the schedule, and to which I allot the total criminality in the overall consideration of these matters. ” It was submitted on behalf of the applicant that this remark indicated that His Honour was in breach of the principle enunciated in Pearce v The Queen [1998] 194 CLR 610 where McHugh, Hayne and Callinan JJ said at [45]:“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.” That statement has been accepted and acted upon by this Court, not as advice only, but as “imperative and authoritative direction from the High Court to sentencing judges”: R v Musso [2002] NSWCCA 487 at [31]. As counsel for the applicant submitted, and counsel for the respondent seemed to agree, it follows from the principle in Pearce, that it is an error of law for a sentencing judge, having notionally fixed individual sentences for each of the offences charged in the indictment, to then increase the sentence on any one or more of the offences in order to reflect the overall criminality of the offender’s conduct. The proper course is to allow the overall criminality to be reflected in accumulation of one or more sentences on another. It may be noted that elsewhere in Australia, Pearce has not been interpreted as laying down so strict a principle as appears from the words quoted: see for instance R v Nagy [2002] QCA 175; R v Henderson [1999] 1 VR 30, R v El-Kotob [2002] VSCA 109. Further, the High Court judgments say nothing about how a sentencing court is to take into account further offences, not charged on the indictment, which have been admitted by the offender in written form and which the court may take account under statutory provisions such as those in s33 of the Crimes (Sentencing Procedure) Act. These provisions were the subject of a guideline judgment of the Court, post Pearce, in Attorney-General’s Application No. 1 [2002] 56 NSWLR 146 where Spigelman CJ said at para 42:“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.”

Decision

Reasons for decision

BARR J

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Ratio Decidendi

Legal Principle Established

Established by: BARR J

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