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Court of Criminal Appeal
New South Wales
Case Title: VAN DER BAAN v R Medium Neutral Citation: [2012] NSWCCA 5 Hearing Date(s): 8 July 2011 Decision Date: 01 August 2012 Jurisdiction: Criminal Before: BEAZLEY JA at [1];
HALL J at [2];
HARRISON J at [124]Decision: (i) Leave to appeal against the sentences imposed by the District Court on 5 February 2010 be granted.
(ii) The appeal upheld in part.
(iii) In respect of Count 5 - the offence of aggravated sexual assault pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
(iv) In respect of Count 6 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
(v) In respect of Count 7 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - six counts of various forms of sexual assault and one count of armed robbery - where Applicant had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time - whether sentencing judge erred in finding that offences against one victim aggravated by earlier offending - no error by sentencing judge because prior convictions were only taken into account once objective gravity of offences determined - whether overall sentence manifestly excessive in circumstances of case - whether error in approach to concurrence of sentences - individual sentences not manifestly excessive but increased amount of concurrence of sentences warranted. Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clinch v The Queen (1994) 72 A Crim R 301
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
House v R [1936] HCA 40; (1936) 55 CLR 499
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1997] HCA 26, (1997) 189 CLR 295; (1997) 94 A Crim R 397
R v AEM & ORS [2002] NSWCCA…
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- AGLC
- Van der Baan v R [2012] NSWCCA 5
- Case
- [2012] NSWCCA 5
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CaseChat Overview and Summary
The case of Van der Baan v R concerns an application for leave to appeal against sentence, involving six counts of various forms of sexual assault and one count of armed robbery. The applicant had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time. The court was required to decide whether the sentencing judge erred in finding that the offences against one victim were aggravated by the earlier offending, and whether the overall sentence was manifestly excessive in the circumstances of the case.
The court held that there was no error by the sentencing judge in taking into account the prior convictions only after determining the objective gravity of the offences. The court found that the individual sentences were not manifestly excessive, but the increased amount of concurrence of sentences warranted consideration. The court accepted the Crown's comprehensive analysis of like offences in the 1990s, which demonstrated that sentences involving minimal terms between 6.5 years to 9 years were within range for offences of this conduct. The sentences imposed by His Honour Judge King were consistent with the sentencing pattern for the period 1996 and were not manifestly excessive.
The applicant was required to establish that the sentences imposed by the sentencing judge were "unreasonable or plainly unjust". The court considered the total effective sentence imposed upon the applicant in relation to the total offending against all four victims, involving a total effective non-parole period of 24 years and 9 months with a balance of term of 3 years. The court found that the escalating level of sexual violence displayed in the four offences established the applicant as a very dangerous offender, and considerable weight had to be given in sentencing to both retribution and the protection of society.
The court dismissed the application for leave to appeal against sentence, finding that the sentences imposed by the sentencing judge were not manifestly excessive.
The court held that there was no error by the sentencing judge in taking into account the prior convictions only after determining the objective gravity of the offences. The court found that the individual sentences were not manifestly excessive, but the increased amount of concurrence of sentences warranted consideration. The court accepted the Crown's comprehensive analysis of like offences in the 1990s, which demonstrated that sentences involving minimal terms between 6.5 years to 9 years were within range for offences of this conduct. The sentences imposed by His Honour Judge King were consistent with the sentencing pattern for the period 1996 and were not manifestly excessive.
The applicant was required to establish that the sentences imposed by the sentencing judge were "unreasonable or plainly unjust". The court considered the total effective sentence imposed upon the applicant in relation to the total offending against all four victims, involving a total effective non-parole period of 24 years and 9 months with a balance of term of 3 years. The court found that the escalating level of sexual violence displayed in the four offences established the applicant as a very dangerous offender, and considerable weight had to be given in sentencing to both retribution and the protection of society.
The court dismissed the application for leave to appeal against sentence, finding that the sentences imposed by the sentencing judge were not manifestly excessive.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the Additional Crown Submissions on Sentence Appeal, the Crown provided a very comprehensive analysis of like offences in the 1990s. The Crown's analysis and conclusions should in my opinion be accepted as providing valuable material for which the ground s of 'manifest excess' should be determined. In that regard the Crown Submissions include the following: "Conclusion in relation to cases from the 1990s"What the cases above demonstrate, consistent with what this Court said in Russell, is that sentences involving minimal terms (or non parole periods) between 6.5 years to 9 years, are within range for offences of this conduct - which is not to say that sentences could not be more or less. The sentence for the offences of BH was well within the many cases outlined above despite the criminality being greater, and the overall seriousness of the offence being greater. In relation to SP the sentence imposed in Burns was identical to that in SP - and this Court did not hold that sentence to be manifestly excessive. The criminality of the offence in SP was greater than Burns, as was the applicant's prior history. Although Burns involved a breach of a bond, that could not balance out the other factors. The analysis of the cases, can not demonstrate that the sentences imposed by His Honour Judge King were manifestly excessive. Indeed as was shown in AEM - even the examination of the statistics at [110] show that Judge King's sentences were not manifestly excessive." In general terms it may be stated that the sentencing pattern be derived from the relevant sentencing decisions, in my opinion, confirms that the sentence imposed on the offender in respect of the offences against BH were entirely consistent with the sentencing pattern for the period 1996 and accordingly were not manifestly excessive. The Crown's summary of cases, in my opinion, establishes that in relation to the more substantial sentences imposed in respect of the Applicant's offences against SP, those offences were more serious than the offences considered in the cases of MacKenzie, Pratt, Russell, Logue and Baker. Additionally, in relation to the Applicant's offences against SP, the sentencing in R v Burns (CCA, unreported 21 September 1994) represents a useful comparator. I have concluded that the analysis of sentencing patterns does not demonstrate that the sentences imposed in this case in respect of SP were manifestly excessive. The Applicant is required to establish that the sentences imposed by the sentencing judge were "unreasonable or plainly unjust". Dinsdale v R (supra) at 325. See also Vuni v R (supra) per Hoeben J. That is a matter to be considered in the context of the total effective sentence imposed upon the Applicant in relation to the total offending against all four victims involving, as it does, a total effective non-parole period of 24 years and 9 months with a balance of term of 3 years. In considering the issue I have taken into account the following matters:(1)Each of the sexual offences committed by the Applicant against each of the four victims involved objective seriousness of a high order.(2)The Applicant's offending can be seen as escalating over the four separate attacks.(3)In particular, each offence involved a substantial level of pre-meditation.(4)Each of the offences involved a marked level of callousness towards and degradation of the four victims.(5)The offences against BH and SP involved the use of a knife accompanied by threats of violence.(6)The four offences manifested a complete disregard for the law and for the personal welfare of the victims.(7)The Applicant's offending occasioned very considerable physical and psychological injury to each of the four victims.(8)The escalating level of sexual violence displayed in the four offences established the Applicant as a very dangerous offender. Considerable weight had to be given in sentencing to both retribution and the protection of society.
Ratio Decidendi
Legal Principle Established
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