WC v The Queen

[2008] NSWCCA 75

New South Wales
Court of Criminal Appeal

CITATION:	WC v R [2008] NSWCCA 75
HEARING DATE(S):	01/04/2008
JUDGMENT DATE:	1 April 2008
JUDGMENT OF:	McClellan CJ at CL at 14; James J at 13; Hoeben J at 1
EX TEMPORE JUDGMENT DATE:	1 April 2008
DECISION:	Leave to appeal granted. Sentences passed by his Honour Judge Taylor on 3 November 2006 quashed - applicant re-sentenced.
CATCHWORDS:	Sentence appeal - successful appeal in other sentence proceedings - need to adjust commencement date for sentences in this matter having regard to successful appeal in the other sentence proceedings.
CATEGORY:	Principal judgment
PARTIES:	WC - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 5289/2006
COUNSEL:	Ms April Francis - Applicant Mr P Ingram - Respondent Crown
SOLICITORS:	William O'Brien Solicitors - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/31/0255
LOWER COURT JUDICIAL OFFICER:	Taylor DCJ
LOWER COURT DATE OF DECISION:	31/10/2006

5289/2006

McCLELLAN CJ at CL
JAMES J
HOEBEN J

Tuesday, 1 April 2008

WC v REGINA

Judgment

1 HOEBEN J:

Offences and sentence
On 14 September 2006 the applicant pleaded guilty before Judge Taylor in relation to seven counts on indictment of sexual assault upon a child.

Count 1 was in terms that between 19 October 1985 and 31 December 1985 the applicant indecently assaulted C, who was then aged 8 years.

Count 2 to Count 6 inclusive were in terms that between 1 January 1986 and 18 October 1986 the applicant indecently assaulted C, who was aged 8 years.

Count 7 was in terms that between 19 October 1986 and 25 December 1986 the applicant indecently assaulted C who was aged 9 years.

2 Each count involved an offence contrary to s 61E of the Crimes Act 1900 (NSW) for which a maximum penalty of imprisonment for 6 years was prescribed.

3 On 3 November 2006 his Honour sentenced the applicant (the Newcastle sentences) in relation to those counts as follows:

(i) On each of count 1 and count 2: A fixed term of imprisonment for 9 months to commence on 2 June 2013 and expire on 1 March 2014.

(ii) On each of count 3 and 4: A fixed term of imprisonment of 9 months to commence on 2 July 2013 and expire on 1 April 2014.

(iii) On each of count 5 and count 7: A fixed term of 9 months to commence on 2 August 2013 and expire on 1 May 2014.

(iv) On count 6: Imprisonment with a non-parole period of 9 months to commence on 2 September 2013 and expire on 1 June 2014 with a balance of term of 18 months to commence on 2 June 2014 and expire on 1 December 2015.

4 The total effect of those sentences was a non-parole period of one year commencing 2 June 2013 and expiring 1 June 2014 with a balance of term of 1 year and 6 months to expire on 1 November 2015.

Factual background and nature of appeal

5 The commencement dates of these sentences were selected to provide for partial accumulation between those sentences and sentences imposed on 2 August 2006 by Judge Garling at Port Macquarie in relation to seven other counts of child sexual assault. Judge Garling had imposed the sentences at Port Macquarie before Judge Taylor passed the sentences, the subject of the present appeal. The effect of the sentences imposed by Judge Garling was that the earliest date upon which the applicant would have become eligible for release to parole was 1 June 2013.

6 When imposing the Newcastle sentences, Judge Taylor adverted to the structure and duration of the Port Macquarie sentences. In conformity with the principle of totality that concerned the combined effect of both groups of sentences Judge Taylor indicated that there would be some partial accumulation of the Newcastle sentences upon the Port Macquarie sentences. It was for this reason that the first of the Newcastle sentences was ordered to commence on 1 June 2013.

7 Subsequent to the imposition of the Newcastle sentences, the Port Macquarie sentences were the subject of a successful appeal to this Court. The Court of Criminal Appeal upheld the appeal in part and quashed the sentences on counts 5, 6 and 7. The applicant was re-sentenced as follows:

On count 5 – imprisonment with a non-parole period of 12 months commencing 2 December 2009 and expiring 1 December 2010 with a balance of term of 12 months expiring 1 December 2011.

On count 6 – imprisonment with a non-parole period of 6 months commencing 2 December 2010 and expiring 1 June 2011 with a balance of term of 3 years and 6 months expiring 1 December 2014.

On count 7 – imprisonment with a non-parole period of 18 months commencing 2 December 2009 and expiring 1 June 2011 with a balance of term of 18 months expiring 1 December 2012.

8 As a result of the re-sentencing by the Court of Criminal Appeal, the aggregate non-parole period for the Port Macquarie sentences expired on 1 June 2011, not 1 June 2013. It would seem that the Court of Criminal Appeal was not informed of the Newcastle sentences when the hearing of the application for leave to appeal in relation to the Port Macquarie sentences was heard by it.

9 The present appeal relates to the Newcastle sentences. The applicant does not in the present application for leave to appeal seek any reduction of the individual or aggregate terms of the Newcastle sentences, but rather seeks a uniform adjustment of the commencement dates of those sentences to provide that the Newcastle sentences commence at the expiration of the aggregate non-parole period of the Port Macquarie sentences as imposed by the Court of Criminal Appeal.

Conclusion

10 The Crown does not dispute that there should be an adjustment as submitted on behalf of the applicant. I can see no reason why such an adjustment should not be made. Had the fact of the Newcastle sentences been brought to the attention of the Court of Criminal Appeal when it was dealing with the Port Macquarie sentences, the adjustment could have been made on that occasion.

11 The orders which I propose are as follows:

(1) Leave to appeal be granted.

(2) That the sentences passed by Judge Taylor on 3 November 2006 be quashed and that the applicant be sentenced as follows:

(i) On each of count 1 and count 2: Imprisonment for a fixed term of 9 months to commence on 2 June 2011 and expire on 1 March 2012.

(ii) On each of count 3 and 4: Imprisonment for a fixed term of 9 months to commence on 2 July 2011 and expire on 1 April 2012.

(iii) On each of count 5 and count 7: Imprisonment for a fixed term of 9 months to commence on 2 August 2011 and expire on 1 May 2012.

(iv) On count 6: Imprisonment with a non-parole period of 9 months to commence on 2 September 2011 and expire on 1 June 2012 with a balance of term of 18 months to expire on 1 December 2013.

12 McCLELLAN CJ at CL: I agree.

13 JAMES J: I also agree.

14 McCLELLAN CJ at CL: Accordingly, the orders of the court are as proposed by Hoeben J.

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