R v MM (No 3)

[2018] NSWDC 529

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v MM (No 3) [2018] NSWDC 529
Decision date:	28 August 2018
Jurisdiction:	Criminal
Before:	Sutherland DCJ SC
Decision:	Application to amend sentence of 27 August 2018 refused.
Catchwords:	Application to amend sentence — Incorrect specification of standard non-parole period — Application of s 43 Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes Legislation Amendment (Child Sex Offences) Act 2015 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2007
Cases Cited:	BR v R [2015] NSWCCA 255 GSH v R [2009] NSWCCA 214 McGrath v R [2010] NSWCCA 48 Nguyen v Regina [2017] NSWCCA 39
Texts Cited:	Sentencing Bench Book
Category:	Sentence
Parties:	Regina (Crown) MM (Offender)
Representation:	Counsel: L McSpedden (Offender) M Fox (Crown)   Solicitors: Douglas & Ford Criminal Law
File Number(s):	2015/00181812; 2015/00220576; 2015/00220588; 2015/00220612; 2015/00220622; 2015/00223091
Publication restriction:	Non-publication order re offender’s name, the identity of each of the victims or any matter which is likely to lead to the identification of such victims, and the identity of various family members and relatives of the victims. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials.

Judgment

Application pursuant to s 43 Crimes (Sentencing Procedure) Act for amendment to sentence passed on 27 August.

1. HIS HONOUR: On 27 August 2018 at Penrith I passed an aggregate sentence with respect to 73 offences of which the offender had been found guilty following a judge alone trial which had proceeded in January and February of this year in Wollongong.

2. I indicated on that occasion that my remarks on sentence should be read in conjunction with my judgment on verdict: R v MM [2018] NSWDC 181. In the course of my remarks on sentence I had cause on a number of specific occasions to make some level of what can properly be described as complaint about the inability of the Court to rely upon the designation of some of the sections which had been pleaded; the maximum penalty which had been indicated; and the specification of the standard non-parole periods in the Crown’s sentence summary.

3. It is clear that some of the errors I pointed out were correctly identified as errors. However, with respect to a number of other identified mistakes, I was the one in error for the reasons which I shall now briefly indicate.

4. Standard non-parole periods had originally been introduced in relation to offences occurring after 2003. From time to time subsequent legislative amendments were introduced which imposed standard non-parole periods in respect of additional offences that originally did not carry them and on other occasions increased the specified standard non-parole period from that which had originally been nominated.

5. Legislative amendments in 2007 were said to apply, in terms, “to the determination of a sentence for an offence whenever committed”, unless the court had already convicted the person being sentenced or had accepted a plea of guilty which had not been withdrawn prior to the commencement of the amendments.

6. Further legislative amendments in 2008 introduced mandatory requirements for the supervision of sex offenders and a number of other alterations. Offences pursuant to s 61M(2), which had originally been designated to carry a maximum penalty of ten years and a standard non-parole period of five years, were the subject of an amendment in the relevant Table pursuant to s 54D of the Crimes (Sentencing Procedure) Act. An increased standard non-parole period of eight years was introduced by clause 10 of the Crimes (Sentencing Procedure) Amendment Act 2007 No 50. That increase had application to offences whenever committed subject to the qualifications about when pleas were entered.

7. Accordingly, by way of example, Count 1 in the Crown tender bundle on sentence incorrectly specifies a standard non-parole period of five years for such an offence. It should have been eight years because of the retrospective application of such an increase which was made clear in the amending Act.

8. The provisions which applied the increase to a standard non-parole period applying retrospectively were the subject of comment by the Court of Criminal Appeal in GSH v R[2009] NSWCCA 214. In that particular matter the sentencing judge had taken into account the standard non-parole period of five years and not the increased level of eight years.

9. Latham J with whom Giles JA and Howie J agreed at said [46],

“In the opening paragraph of the judge’s remarks on sentence on 19 September 2008, the Judge notes the maximum penalty in respect of each offence and goes on to nominate the standard non-parole period as 5 years. This was unfortunate, in that the Judge was relying upon information provided by the Crown’s representative. The standard non parole period for each of the relevant offences increased from 5 to 8 years as and from 1 January 2008, pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Amendment Act 2007.”

10. The failure to take into account a legislative increase in a standard non-parole period is also specifically referred to in the Sentencing Bench Book at [7-895]. The fact that increases to standard non-parole periods for offences that were already in the Table committed after that date applied retrospectively is specifically noted by reference to the 2007 amendments. The Bench Book does not point out that the 2015 2015 increases only apply prospectively.

11. I had, in the course of preparing my Remarks on Sentence, realised the error in the Crown sentence summary with respect to Count 1, and had recourse to GSHand also to the observations in the Bench Book.

12. I was also influenced by a consideration of the decision of the Court of Criminal Appeal in BR v R [2015] NSWCCA 255.

13. That was a decision of the Court of Criminal Appeal delivered by Simpson J, Bathurst CJ and RA Hulme J agreeing, which dismissed an appeal from a decision at first instance of English DCJ. The challenge which was brought was to severity and English DCJ had imposed a sentence of 23 years with a non-parole period of 17 years as an aggregate sentence.

14. In considering the determination of that appeal, I note that the offences had mainly occurred in 2012 and that sentence had been passed in the District Court in March of 2014.

15. Obviously, any increase in standard non-parole periods introduced by the 2015 amendments were not in place at the time that Judge English gave her indicative sentences and passed the aggregate sentence which was imposed. However, in the course of dealing with that appeal, Simpson J set out in dot point form at [9] and then included a Table at the end of her judgment in which the standard non-parole periods for s 91G(1)(a) and s 66EB(3) were set out respectively as six years and five years. In relation to s 66C(2), aggravated sexual intercourse, the standard non-parole period of nine years was noted.

16. On 27 August, when the Crown indicated the possibility that I was in error in relation to the application of the 2015 amendments I referred, in response to the Crown, to the references in the Bench Book and to Tables set out in the Court of Criminal Appeal. The specific example I give of BR v R is what I was referring to.

17. It, in no way, means that the error that I fell into was not an error. I simply seek to indicate that the error into which I fell, namely, that previous amendments to standard non-parole periods did apply retrospectively but the 2015 amendments only applied prospectively.

18. With the greatest of respect to her Honour, I suspect that Simpson J fell into the same error in setting out the standard non-parole periods in determining the appeal in BR v R.

19. All of that leads to this proposition, that there is no doubt, having gone specifically to the amending provisions, that the increases which are set out in the Crimes Legislation Amendment (Child Sex Offences) Act 2015 No 13 includes amendments which “do not apply to offences committed before the commencement of the amendments.”

20. The effect of that conclusion is that I was in error in delineating standard non-parole periods which either did not exist or which existed at a lower level at the time of the commission of the offences in the present matter. Accordingly, whilst some increased penalties did apply, others did not and certainly those from the 2015 amendments did not.

21. The Crown had indicated by means of an email that was forwarded to my Associate that it was intended today to bring an application pursuant to s 43 of the Crimes (Sentencing Procedure) Act for me to amend the remarks on sentence. My preliminary view, after reading the relevant authorities touching on the application of section 43, was that the error that I made was not subject to correction pursuant to s 43.

22. I indicated on the last occasion, when it was first raised, that I had no intention of going back and revisiting “numbers” and that although the indicative sentences that I am required to specify had been included in a Table and were, of course, entered into JusticeLink, I indicated that the Table would be annexed to a published copy of the judgment, I did not read those aloud.

23. They stand and they have already been recorded. I did however indicate, both with respect to both offences carrying a standard non-parole periods and also offences which did not carry a standard non-parole period, my determination as to where I believed the matters fell in an assessment of the objective level of seriousness for each categorisation or group of offences.

24. In those circumstances, there is nothing more for me to do today other than to note that there are a number of decisions in the Court of Criminal Appeal where the Court inferred that the incorrect reference to a standard non-parole period was to be taken in the context of those particular cases (See GSH). One of those was a challenge to the inadequacy of sentence where the increased standard non-parole period had not been taken into account and on another occasion it was perceived that a sentence may have been increased by consideration of an increased standard non-parole period which should not have been taken into account.

25. The Crown, this morning, has provided the Court with a copy of Nguyen v Regina [2017] NSWCCA 39 which, in terms, makes reference to Macfarlan JA’s decision in McGrath v R [2010] NSWCCA 48 where the existence of a standard non-parole period, which was only effective from a time after the commission of the requisite offences, had erroneously been taken into account. The sentencing judge having referred to the amendments, had noted that the concept had “no direct bearing” on the sentencing of the offender.

26. In the present matter, it suffices for me to state, given that the matter has come back before me in the fashion that it has, that my indication that I did not intend to revisit any of the numbers in respect of the indicative sentences in particular, stands and it will be a matter for the Court of Criminal Appeal to reach such conclusions as it sees fit in that regard.

27. In my view, whilst taking into account the standard non-parole period in the fashion required as a guidepost, it had no direct bearing on the indicative sentences that I reached. Certainly, in relation to the aggregate sentence, the ultimate influence of the standard non-parole periods for the individual offences, in my view played no determination in regard to the ultimate resolution of the aggregate sentence which I did pass, which was of 32 years with a non-parole period of 24 years.

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Amendments

17 July 2023 - Catchwords added and formatting changes

Decision last updated: 17 July 2023