Regina v Pell

[2004] NSWCCA 205

CITATION:	REGINA v. PELL [2004] NSWCCA 205
HEARING DATE(S):	08/04/2004
JUDGMENT DATE:	8 April 2004
JUDGMENT OF:	Beazley JA; Dowd J; Greg James J
DECISION:	1. Grant leave to appeal; 2. Appeal allowed; 3. Quash the sentences imposed by the trial judge; 4. Re-sentence the appellant as follows: in respect of count one impose a term of imprisonment of two years to commence on 9 May 2003 and end on 8 May 2005; 5. In respect of count three impose a term of imprisonment of two years three months commencing on 9 May 2003 and ending on 8 August 2005; 6. In respect of count two impose a term of imprisonment of three years commencing on 9 November 2003 and ending on 8 November 2006; 7. In respect of count two the court imposes a non-parole period of one year nine months commencing on 9 November 2003 and ending on 8 August 2005; 8. The court directs, in accordance with s.50(1) of the Crimes (Sentencing Procedure) Act (NSW) 1999 that the appellant be released to parole on that day; 9. The court declines to impose a non-parole period in respect of counts one and three because of the effect of the sentence imposed for count two
CATCHWORDS:	SENTENCING - Sentence excessive - Special circumstances - s.44 of Crimes (Sentencing Procedure) Act (NSW)1999 - Multiple offences - Individual sentences should appropriately reflect the criminality of each offence - Where an error in sentencing is identified the Court of Appeal must re-sentence - Re-sentencing will not necessarily involve a reduction in original sentence - Where an increase in original sentences is proposed, the appellant must be given time to decide whether to or not to proceed with his/her appeal.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act (NSW) 1999
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610
PARTIES :	REGINA v. PELL
FILE NUMBER(S):	CCA 6050/03
COUNSEL:	P. Boulton SC (Appellant) P. Ingram (Respondent)
SOLICITORS:	T. Heenan (Appellant) S. Kavanagh (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0109
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

CCA 6050/03

BEAZLEY JA
DOWD J
GREG JAMES J

8 April 2004

R v. PELL

Headnote

1 The appellant pleaded guilty to three counts of indecent assault on a female under the age of 16 years pursuant to s.76 of the Crimes Act (NSW) 1900. The maximum penalty under s.76 was 6 years. There were two victims of the assaults. When sentencing the appellant, the trial judge considered that the appropriate total sentence for the three offences was a term of imprisonment of three years and nine months which he imposed for the first count although it was not the most serious. He then imposed a term of imprisonment of twelve months for each remaining count, to be served concurrently, thereby reflecting the totality of the criminality of all three offences in the sentence imposed for count one.

2 The appellant appealed against sentence on the ground that it was excessive and that the trial judge had failed to give effect to his Honour’s finding that the appellant’s situation manifested special circumstances as he was required to pursuant to s.44 of the Crimes (Sentencing Procedure) Act (NSW) 1999.

HELD per curiam:

3 The total sentence imposed of three years nine months was excessive in the circumstances.

4 The trial judge erred in imposing a sentence in respect of one count which effectively imposed on it the total criminality involved in all three offences: Pearce v The Queen (1998) 194 CLR 610.

5 Where an error in sentencing is exposed, the Court is required to engage in a process of re-sentencing and make its own determination.

6 When the Court finds it necessary to embark upon a process of re-sentencing, that does not mean that the Court is required to impose a sentence less than that imposed by the trial judge.

1. Grant leave to appeal.

2. Appeal allowed

3. Quash the sentences imposed by the trial judge.

4. Re-sentence the appellant as follows: in respect of count one impose a term of imprisonment of two years to commence on 9 May 2003 and end on 8 May 2005.

5. In respect of count three impose a term of imprisonment of two years three months commencing on 9 May 2003 and ending on 8 August 2005.

6. In respect of count two impose a term of imprisonment of three years commencing on 9 November 2003 and ending on 8 November 2006.

7. In respect of count two the court imposes a non-parole period of one year nine months commencing on 9 November 2003 and ending on 8 August 2005.

8. The court directs, in accordance with s.50(1) of the Crimes (Sentencing Procedure) Act (NSW) 1999 that the appellant be released to parole on that day.

9. The court declines to impose a non-parole period in respect of counts one and three because of the effect of the sentence imposed for count two.

CCA 6050/03

BEAZLEY JA
DOWD J
GREG JAMES J

8 April 2004

R v. PELL

Judgment

7 THE COURT: In this matter the appellant was charged with three counts of indecent assault on a female under the age of sixteen years under s.76 of the Crimes Act 1900. Section 76 carried a maximum term of imprisonment of six years.

8 The appellant pleaded guilty to the charges and on 16 May 2003 was sentenced by Judge Hosking of the District Court. In respect of count one his Honour imposed a term of imprisonment of three years nine months to commence 9 May 2003, to expire on 8 February 2007. He imposed a non-parole period to expire on 8 May 2004. In respect of count two he imposed a fixed term of twelve months to commence on 9 May 2004, to expire on 8 May 2005. In respect of count three he imposed a fixed term of twelve months to commence on 9 February 2005 and to expire on 8 February 2006.

9 It is not necessary for the purposes of these reasons to recount the facts of each count save to say that counts one and two related to one child under the age of sixteen years, being a child who was aged about nine or ten years at the time and count three was an offence which related to a different child, also under the age of sixteen years and also aged about nine or ten at the time of the offence committed upon her.

10 The precise nature and circumstances of each offence is set out in his Honour’s remarks on sentence.

11 The Crown submitted to the court that the most serious of the offences was that charged in count two. Counsel for the appellant did not dispute that and we agree that that is an appropriate characterisation of the charge upon the facts revealed both in the remarks on sentence and in the other material which is part of the court file.

12 When imposing the sentences, Judge Hosking stated that, in his view, the appropriate total sentence for the three offences was a term of imprisonment of three years and nine months with an effective non-parole period of two years and nine months. Against that background his Honour then imposed the sentences to which we have referred. The result was that his Honour imposed a sentence in respect of count one which, in effect, imposed on it the totality of the criminality involved in all three offences.

13 In our opinion his Honour erred in that approach – see Pearce v. The Queen (1998) 194 CLR 610. The Crown frankly conceded this error in his Honour’s reasons and sentencing process.

14 Having determined that that error was made it is necessary for this court to embark upon a process of re-sentencing. That does not necessarily mean that this court is required to impose a sentence less than that imposed by the trial judge but the error having been exposed it at least requires the court to enter upon the process and make its own determination.

15 In his helpful submissions on the matter, counsel for the appellant submitted that, leaving aside the precise structure of the sentence, his Honour erred in imposing an effective head sentence of three years and nine months because, in imposing that sentence, he failed to take into account the following matters: the fact that the appellant would spend his sentence in protection for all of his time in custody; that he is already in his sixties; this is his first period in gaol; and there was a long delay in his being charged, the offences having been committed in 1977.

16 In the court’s opinion this submission is well based and we have reached the view that the total sentence imposed of three years nine months was excessive in the circumstances and we would impose an overall lesser sentence but we would do so on the count which we consider is the most serious charge, that is, count two.

17 There was another error of which the appellant made complaint in his grounds of appeal, namely, that his Honour having found special circumstances then failed to give proper effect to that finding, given that the ultimate result of the sentence that he imposed was to allow for a period of imprisonment in the order of seventy three percent of the head sentence only minimally less than seventy five percent referred to in s.44 of the Crimes (Sentencing Procedure) Act (NSW) 1999.

18 The remarks we have just made have to be taken broadly because his Honour structured the sentences in such a way that they do not precisely follow an appropriate sentencing structure.

19 The Crown did not seek to argue that his Honour erred in finding special circumstances. Clearly there were and we would, likewise, find special circumstances for the same reasons as those found by his Honour. The special circumstances are effectively the same matters to which we have already referred in indicating that the sentence should be reduced, namely, matters of protection, age and delay in bringing the proceedings.

20 The court has found it difficult to understand the structure of the sentence which was imposed by the trial judge and it is our opinion that in order to appropriately sentence the appellant on the charges of which he was convicted it will be necessary to increase some of the sentences which were imposed by the judge. In particular we consider that it is necessary to increase the sentences in respect of counts one and three so as to appropriately reflect the criminality involved.

21 By the same token the court considers it necessary to reduce the sentence imposed in respect of count one, since the sentence imposed by his Honour inappropriately reflected the degree of criminality in relation to that charge. That comment is further underscored by the fact that count one, in respect of which his Honour imposed the highest sentence, was not the most serious of the charges involved.

22 Prior to giving judgment, the court indicated to the Crown and to counsel that it had determined that it was appropriate to grant leave to appeal and to allow the appeal and that it was proposing to re-sentence but with the consequence to which we have just referred, namely, that there would be an increase in the sentence in relation to two counts.

23 The court allowed the appellant time to consider his position and in particular, to decide whether he wished to proceed with his appeal or withdraw his appeal, given the prospect there would be an increase in the sentence in respect of two charges.

24 Counsel for he appellant has indicated to the court that the appellant wishes to proceed with his appeal in all the circumstances. We should interpolate, when considering his position, the appellant was provided with a document setting out the proposed sentences which the court would intend to impose should the appeal proceed. Having been informed hat the appeal is to proceed and, for the reasons which we have given, the court now makes the following formal orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentences imposed by the trial judge.

4. Re-sentence the appellant as follows: in respect of count one impose a term of imprisonment of two years to commence on 9 May 2003 and end on 8 May 2005.

5. In respect of count three impose a term of imprisonment of two years three months commencing on 9 May 2003 and ending on 8 August 2005.

6. In respect of count two impose a term of imprisonment of three years commencing on 9 November 2003 and ending on 8 November 2006.

7. In respect of count two the court imposes a non-parole period of one year nine months commencing on 9 November 2003 and ending on 8 August 2005.

8. The court directs, in accordance with s.50(1) of the Crimes (Sentencing Procedure) Act (NSW) 1999 that the appellant be released to parole on that day.

9. The court declines to impose a non-parole period in respect of counts one and three because of the effect of the sentence imposed for count two.

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Last Modified: 06/28/2004