ZZ v R

Case [2013] NSWCCA 83

Court of Criminal Appeal

New South Wales
Case Title: ZZ v R
Medium Neutral Citation: [2013] NSWCCA 83
Hearing Date(s): 1 August 2012
Decision Date: 19 April 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Button J at [150]
Decision:

1. Leave to appeal granted.

2. Appeal allowed in part.

3. Confirm sentence passed on 17 June 2011 for the offence of obtaining a valuable thing by deception (taking into account the Form 1 offences referrable to this count).

4. Sentences for the offences under s.61I and s.61J Crimes Act 1900 quashed.

5. In their place:

(a) for Count 1, the offence of sexual intercourse without consent contrary to s.61I Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of three years, four months and two weeks commencing on 13 August 2011 and expiring on 26 December 2014, with a balance of term of one year, one month and two weeks commencing on 27 December 2014 and expiring on 9 February 2016,

(b) for Count 2, the offence of aggravated sexual assault contrary to s.61J Crimes Act 1900 (taking into account the s.61J offence on the Form 1), the Applicant is sentenced to imprisonment comprising a non-parole period of four years and eight months commencing on 13 August 2012 and expiring on 12 April 2017, with a balance of term of two years and four months commencing on 13 April 2017 and expiring on 12 August 2019.

6. The earliest date upon which the Applicant will be eligible for release on parole is 12 April 2017.

7. In accordance with s.25C(1) Crimes (High Risk Offenders) Act 2006, the Applicant is advised of the existence of that Act, and its application to the sexual assault offences for which he has been sentenced.
Catchwords: CRIMINAL LAW - sentence - pleas of guilty - sexual intercourse without consent - aggravated sexual intercourse without consent - intoxicated offender - offences committed against then partner following consensual sexual activity - significant injuries to victim - standard non-parole period offences - whether error in approach after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - error demonstrated - whether lesser sentences appropriate under s.6(3) Criminal Appeal Act 1912 - substantial custodial sentences appropriate - significant domestic violence offences - relevance of self-induced intoxication - claim that offences out of character - discount for assistance to authorities - penalties imposed not to be unreasonably disproportionate to nature and circumstances of offences - lesser sentences warranted under s.6(3) - Applicant resentenced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes (High Risk Offenders) Act 2006
Cases Cited: Morrison v R [2009] NSWCCA 211; 197 A Crim R 103
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Coleman (1990) 47 A Crim R 306
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Butler v R [2012] NSWCCA 23
Bourke v R [2010] NSWCCA 22

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ZZ v R [2013] NSWCCA 83
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[2013] NSWCCA 83
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CaseChat Overview and Summary

In the matter of ZZ v R, the appellant, ZZ, appealed against the sentence imposed by the lower court, arguing that the sentencing judge had made an error in the approach to sentencing. The case involved significant injuries to the victim and the appellant's intoxication at the time of the offence. The appellant had pleaded guilty to charges of sexual intercourse without consent and aggravated sexual intercourse without consent against his then partner. The lower court had sentenced the appellant to significant custodial terms, which he now sought to challenge on appeal.

The central legal issues before the court were whether the sentencing judge had erred in applying the standard non-parole period and whether the penalties imposed were disproportionately severe. The court examined whether the sentencing judge had followed the correct legal principles set out by the High Court in Muldrock v The Queen, particularly regarding the impermissible two-stage sentencing approach. The appellant argued that the self-induced intoxication should be considered in determining the appropriate sentence and that the offences were out of character. The Crown opposed any reduction in the sentence, arguing that the penalties were appropriate given the nature of the offences.

The court found that the sentencing judge had indeed erred by applying the standard non-parole period incorrectly, leading to an inappropriate calculation of the custodial terms. The error was significant enough to warrant a resentencing. The court held that, despite the severity of the offences, the penalties imposed were excessively disproportionate. Considering the appellant's guilty plea and assistance to authorities, the court determined that lesser sentences were warranted under section 6(3) of the Criminal Appeal Act 1912. The appellant was therefore resentenced to a term that reflected the errors identified by the court.

The court's final order was that the original sentences be set aside and the appellant be resentenced, taking into account the appropriate legal principles and the mitigating factors presented. The new sentences were to reflect a fair and proportionate response to the nature and circumstances of the offences, while also considering the appellant's cooperation and remorse.

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

HOEBEN CJ
In this way, the Crown submitted that no lesser aggregate sentence was warranted at law.Decision It is necessary to fairly read the remarks on sentence to determine whether an error has been made and, if so, to determine the extent and consequences of the error. In many circumstances, it might be considered that the second reference by the sentencing Judge (at ROS13) was a slip, with his Honour's true finding being that made earlier in the remarks. However, the non-parole period for Count 1, after a 50% combined discount for the Applicant's plea of guilty and assistance, was a period of four years and six months. The standard non-parole period for this offence was seven years. An undiscounted non-parole period would have been in the order of nine years. In these circumstances, it is appropriate to conclude that his Honour sentenced the Applicant on Count 1 upon the basis of the second (and incorrect) assessment, and not the first assessment identified earlier in the remarks. The first ground of appeal is made good. It will be necessary to return to this topic later in this judgment, and to consider the Crown submission concerning accumulation, in the course of determining what course this Court should take, for the purposes of s.6(3) Criminal Appeal Act 1912. It is appropriate to consider submissions made with respect to the second ground of appeal. This process will also assist a decision whether this Court should intervene under s.6(3) Criminal Appeal Act 1912, in light of the error established in the first ground of appeal. Mr Odgers SC submitted that the sentencing Judge had fallen into error in taking into account the standard non-parole period with respect to Counts 1 and 2. He submitted that the sentencing Judge's approach infringed the principles laid down by the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Mention has been made earlier of the sentencing Judge's finding concerning Counts 1 and 2 (at [53] above). The part of the remarks on sentence challenged, in the second ground of appeal, is as follows (ROS13):"The standard non parole period is not a maximum. It is not applicable automatically because of the offender's plea of guilty (Way's case). Given the assessment I have made of the criminality of the offender's action being at the top of the mid range, the sentences after trial would have been greater than the standard. The sentences then are as follows." His Honour then proceeded to pass sentences identified earlier in this judgment. In support of the second ground of appeal, Mr Odgers SC submitted that the sentencing Judge's approach involved error for two reasons. Firstly, he submitted that it involved impermissible two-stage sentencing, where the sentencing Judge considered the application of the standard non-parole period by reference to the objective seriousness of the subject offence, and then added an increment to the standard non-parole period (in this case, before discount, an extra two years in the case of Count 1).

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

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