R v LWP - [2003] NSWCCA 215

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v LWP [2003] NSWCCA 215

FILE NUMBER(S):
60102/03

HEARING DATE(S): 9 July 2003

JUDGMENT DATE: 09/07/2003

PARTIES:
Regina (Applicant)
LWP (Respondent)

JUDGMENT OF: Spigelman CJ Bell J Miles AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3043

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P Givorshner (Applicant)
D M L Woodburne (Respondent)

SOLICITORS:
D J Humphreys (Applicant)
S E O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW - SENTENCE - sexual assault - appeal against accumulation in sentence structure - whether trial judge took into account circumstances of custody in finding of special circumstances - whether sentences considered as a whole reflect trial judge's intended result as to variation of statutory non-parole period ratio.

LEGISLATION CITED:
Crimes Act 1900 ss 61D, 61J, 61M
Criminal Appeal Act 1912 s 6
Criminal Procedure Act 1986 s 292

DECISION:
Leave to appeal against sentence granted; sentences imposed on Counts 1 and 2 affirmed; sentence imposed on Count 3 quashed and a sentence of nine years commencing 15 December 2003 with a non-parole period of five years substituted.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60102/03
SPIGELMAN CJ
BELL J
MILES AJ
Wednesday 9 July 2003

REGINA v LWP

Judgment

SPIGELMAN CJ: The Applicant pleaded guilty to three sexual assault charges and was sentenced by Judge Goldring in the District Court.
His Honour made a finding of special circumstances which was reflected in each individual sentence by the imposition of a non-parole period of 66.66 per cent of the head sentence in lieu of the statutory ratio of 75 per cent. However, the effective sentences actually imposed by reason of their accumulation was such that, overall, there was no variation of the statutory ratio when the sentences were considered as a whole. The Applicant appeals from the sentence structure so imposed, as distinct from each individual sentence.
The first count was a charge of sexual intercourse with the Applicant’s niece, then aged nine years, during 1985-1986. This constituted an offence under s61D(1) of the Crimes Act 1900 with a then maximum sentence of ten years.
The second count was an act of indecent assault on the Applicant’s daughter, then aged either nine or ten years. This was an offence under s61M(2) of the Crimes Act with a maximum sentence of ten years.
The third count was an act of sexual intercourse with the Applicant’s other daughter, then aged between twelve and fourteen years. This was an offence under s61J(2) of the Crimes Act with a maximum sentence of twenty years.
It was the third count which was – and was regarded and treated by his Honour as – the most serious.
The sentencing judge took into account the full range of relevant considerations, including, as mitigating circumstances, the age of the Applicant, which was sixty-two years at the time of sentencing, his health, his plea of guilty at the earliest opportunity, and his good character. These were matters permissible to take into account, but obviously did not detract from the objective seriousness of the offences to which the Appellant pleaded guilty.
His Honour imposed the following sentences:
As to Count 1, a head sentence of three years, commencing on 15 June 2001 and expiring on 14 June 2004, with a non-parole period of two years, expiring on 14 June 2003.
As to Count 2, a head sentence of two years and three months, commencing on 15 June 2003 and expiring on 14 September 2005, with a non-parole period of eighteen months, commencing on 15 June 2003 and expiring on 14 December 2004.
As to Count 3, a head sentence of nine years commencing on 15 December 2003 and expiring on 14 December 2012, with a non-parole period of six years, commencing on 15 December 2003 and expiring on 14 December 2009.
His Honour said when sentencing with respect to Count 1, after identifying the head sentence as three years:
“There will be a non-parole period because of the special circumstances of two years and that will expire on 14 June 2003.”
As can be seen the relationship of 66.66 per cent of the non-parole period to the head sentence was less than the statutory ratio of 75 per cent, reflecting his Honour’s finding of special circumstances. Each of the other sentences had a similar ratio between the non-parole period and the head sentence.
However, the effect of the partial accumulation was such that the time actually to be served by the Applicant will be about 75 per cent of the period of the combined head sentences. The Applicant received an effective sentence of eleven years six months, with an effective non-parole period of eight years and six months.
By reason of the nature of the offences, being sexual assault offences against girls, the Applicant will suffer particular hardship in prison because he will be kept in stricter than normal confinement. His Honour makes no reference to this fact in his remarks on sentence. Counsel for the Applicant submitted that his Honour failed to take this consideration into account. It is unlikely that his Honour overlooked this factor. The fact that it is not mentioned in the remarks on sentence does not require any such conclusion.
His Honour does not identify in his remarks on sentence what were the matters which he took into account as constituting special circumstances. However, during the course of the sentence hearing his Honour indicated clearly that he had formed the view that there was special circumstances and did so immediately after counsel for the Applicant had said:
“… that given his age and his medical condition and the circumstances of his confinement …”
It appears that that these were the factors which his Honour took into account, and they included the circumstances of confinement.
The Applicant submitted to the Court that his Honour plainly intended to give effect to his finding of special circumstances but failed to do so. It was submitted that the effective non-parole period should have been seven years and six months, that being 66 per cent of the effective head sentence.
The Crown submitted that, notwithstanding the apparent error made by the sentencing judge, no lesser non-parole period should have been imposed than eight years and six months. It also submitted that the increase in the parole period from three to four years would serve no utility. It was submitted, accordingly, that a lesser sentence was not warranted and should not have been passed, referring to s6(3) of the Criminal Appeal Act 1912, that this Court must be satisfied that there should be such a lesser sentence prior to granting an appeal against severity of sentence.
There are cases in which this Court has intervened to carry out the intention of a sentencing judge to make an allowance for special circumstances where, as a result of a mathematical error in computation, the intention of the sentencing judge has not been carried into effect. (See eg R v Sharrock [1999] NSWCCA 289; R v (Fuller) Thornberry [2000] NSWCCA 526.)
There is no challenge to the appropriateness of his Honour’s sentences for each individual offence. Nor is there a challenge to his Honour’s decision to partially accumulate the offences. The effective non-parole period and effective head sentence are well within the permissible range for the exercise of judicial sentencing discretion. It cannot be said that either is at the very bottom of the range, bearing in mind the maximum sentence for the first count was substantially lower than the maximum sentence under the current legislative regime.
In my opinion it cannot be said that the effective non-parole period of eight years and six months was at the bottom of the relevant range reflecting the course of criminality revealed in the three offences. His Honour carefully balanced the relevant considerations. He did not understate the gravity of the conduct revealed by all three offences.
His finding of the existence of special circumstances was warranted by the combined effect of the age of the Applicant, who will be seventy at the time he is released, his state of ill health, and also the circumstances as to the nature of his custody.
I am satisfied, in accordance with s6(3), that, in the light of his Honour’s findings of special circumstances, a lesser effective sentence is warranted within the meaning of s6(3), if that test applies to the effective sentence of three separate offences partially accumulated as occurred in this case and not merely to each individual sentence.
I am satisfied, bearing in mind that the sentence for one of the offences is of considerable length, that a lesser sentence is warranted with respect to that offence, and that a lesser non-parole period is warranted with respect to that offence, in the light of the finding of special circumstances. The issue that arises is the determination of the effective sentence looking at the sentence for this particular offence in the context of the sentences for the other two offences.
The exercise by his Honour of the sentencing discretion did not miscarry, save in carrying his intended result into effect. The difficulty arose by reason of the sentencing structure and the partial accumulation of the three different sentences. The non-parole period for Count 2 commenced at the expiration of the two year non-parole period for Count 1. The non-parole period for Count 3 commenced after the expiration of six months of the eighteen months non-parole for Count 2.
There are a number of ways in which his Honour could take into account his intended result. One would have been to overlap the non-parole period for Count 1 with the sentence for Count 2. Another is to reduce the non-parole period for Count 3. In my opinion, the sentencing judge’s intention is best carried into effect by quashing the sentence of Count 3 only and imposing a lower non-parole period, but not altering the head sentence.
The orders I propose are:
1           Leave to appeal against sentence granted.
2           Sentences imposed on Counts 1 and 2 affirmed.
3           Sentence imposed on Count 3 quashed.
4The sentence for Count 3 is a head sentence of nine years commencing on 15 December 2003 and expiring on 14 December 2012, with a non-parole period of five years, commencing on 15 December 2003 and expiring on 14 December 2008.
5Order under s292 of the Criminal Procedure Act 1986 preventing publication of anything that can identify the victims of these offences.
BELL J: I agree with the orders proposed by the Chief Justice for the reasons that his Honour gives.
MILES AJ: I agree also.
SPIGELMAN CJ: The orders are as I have indicated.
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LAST UPDATED: 04/08/2003