JA v R

1. [1]

   BASTEN AJA: On 28 March 2023 the applicant was convicted and sentenced in the District Court by Judge McGrath SC with respect to two offences. The first was maintaining an unlawful sexual relationship with his step-daughter while she was between the ages of 8 and 15 years, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). That offence carried a maximum penalty of life imprisonment. The second offence was a common assault which occurred on or about 17 March 2021, contrary to s 61 of the Crimes Act.

2. [2]

   The applicant was taken into custody on 26 March 2021, and the sentences were fixed to commence on that date. For the s 66EA(1) offence, the judge imposed a sentence of 14 years 6 months, with a non-parole period of 11 years. For the assault, he imposed a period of imprisonment of 3 months to run entirely concurrently with the sentence for the s 66EA(1) offence.

3. [3]

   The only issue raised on the appeal concerned the relationship between the non-parole period and the head sentence. Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), the balance of term of a sentence “must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more”. Because it is accepted that the head sentence should not be increased to provide for a longer period in the community on parole, the default relationship is conventionally expressed in terms of a reduction of the non-parole period where there is finding of special circumstances. That approach is adopted because the existence of special circumstances is intended to be a mitigating factor, not one warranting a longer sentence. Accordingly, the default position (in the absence of special circumstances) is reflected as a non-parole period which is 75% of the head sentence.

4. [4]

   It is common ground in the present case that the sentencing judge intended to reduce that ratio, but inadvertently increased it very slightly. Although the increase did not have a significant effect on the period of the applicant’s incarceration, subject to one procedural step, it is appropriate that the Court intervene.

5. [5]

   The procedural step concerns the lateness of the application for leave to appeal. The Court was informed that the delay was occasioned by the need to await the judgment of the High Court in Xerri v The King [1] delivered on 6 March 2024. The issue in that case was whether the replacement of the former s 66EA by the current provision, with effect from 1 December 2018, meant that offending which occurred prior to that date was still governed by the maximum penalty of 25 years imprisonment which applied to the preceding provision. If the appeal in Xerri had been successful, the applicant intended to rely upon the same point in his proposed grounds of appeal. However, the appeal in Xerri was dismissed.

6. [6]

   Although the more appropriate course for the applicant may have been to commence the proceeding, but delay the hearing, the respondent did not oppose the extension of time, which should be granted.

Judgment on sentence

1. [7]

   Having noted that a sentence of fulltime imprisonment was required, the sentencing judge continued: [2]

2. [8]

   Although the judge did not in terms make a finding of special circumstances, so much was implicit in the passage set out above and the respondent did not contend otherwise. Nor did the respondent contend that the finding was inappropriate, or that the matters taken into account were inappropriate. Nevertheless, there was in fact no adjustment downwards of the default ratio of the non-parole period to the head sentence; rather, the ratio was increased very slightly to 75.86%. That increase might be ignored, were it not evident that the judge intended some reduction.

Issues on appeal - relevant principles

1. [9]

   Accepting that there was an error, the question is how this Court should approach correction of the error. That turned upon whether this Court was required to exercise a discretionary power, or merely correct an arithmetical mistake. In the latter situation, had the judge stated that he intended to vary the default position by a specified period or percentage, but failed to make orders to that effect, it was not in dispute that the Court could give effect to the intended result as expressed by the sentencing judge. [3] However, in circumstances where the judge did not do that, this Court would be required to form its own view as to the appropriate reduction and would therefore be required to “exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit”. [4] In the present case the sentencing judge did not make clear the intended outcome in numerical terms.

2. [10]

   The principle stated in Kentwell reflects the obligation imposed on the Court by s 6(3) of the Criminal Appeal Act 1912 (NSW):

3. [11]

   In Lehn the error involved procedural unfairness, the sentencing judge having provided a discount of 20% for the utilitarian benefit of a guilty plea, in circumstances where a discount of 25% had been sought by the offender, and not opposed by the prosecutor. Bathurst CJ stated, in respect of s 6(3) of the Criminal Appeal Act:

4. [12]

   The Chief Justice identified a “further difficulty” in the following terms:

5. [13]

   It has been observed that the agreement of the parties cannot override the statutory obligation, once engaged. [5] In DB v R, Hamill J implied that the approach adopted in Sausa v R, [6] relying on the agreement of the parties, might be in tension with other authorities, but noted that in DB itself, “neither party suggested the Court would simply make an adjustment to the non-parole period in the event that it upheld the single ground of appeal”. [7]

6. [14]

   The focus in Kentwell, and in Lehn and subsequent cases, has been upon the nature of the error. Accepting that this Court is required to re-exercise the sentencing discretion, there will often remain a live question as to how it should undertake that task. One answer to that question is to compare the nature of the function of the sentencing court with that of this Court on an appeal.

7. [15]

   The sentencing hearing will be affected by many decisions made by the parties, including the plea. The sentencing judge will be required to identify the nature of the offending and, where the facts are not agreed, make findings of fact. The judge may do so having conducted a trial or heard witnesses on a sentencing hearing. However, the facts may be agreed, in which case the sentencing judge will generally be entitled to sentence on the basis of facts agreed by the parties. If the judge proposes to depart from a common position taken by the parties, it will be necessary, as the circumstances in Lehn exposed, to indicate that view and allow the adversely affected party an opportunity to make submissions as to why the judge should not adopt that course. [8]

8. [16]

   Further, there will be evaluative determinations to be made as, for example, the discount for a plea. On the other hand, there will be a discretionary judgment as to where, within an appropriate range, the sentence should be fixed. Even as part of a “plea bargain”, it is not up to the parties to agree that figure. [9]

9. [17]

   The exercise confronting an appeal court is different in some respects. For example, where the sentencing judge has had the benefit of hearing from a witness, or indeed the offender, the appeal court may be constrained from taking a different view of the evidence from that accepted by the sentencing judge. In DB v R, findings of the sentencing judge were expressly accepted: “I agree with the factual findings made by the sentencing judge including those as to the objective seriousness of the offences.” [10]

10. [18]

    Similarly, it is open to the parties to agree particular facts and it is usual for the parties to indicate which findings made by the sentencing judge are in dispute and which are not. This opportunity for agreement may extend to dispositive findings by a sentencing judge, including as to a discount for a plea and whether special circumstances exist. As with the exercise undertaken by the sentencing judge, this Court may decline to adopt a common approach presented by the parties, but if minded to take that course, it must identify that as a possibility and invite submissions. This approach is consistent with that recently adopted by Yehia J (Bell CJ and Hamill J agreeing) in Murray v R. [11]

11. [19]

    In the present case, the applicant did not contend that the sentence was manifestly excessive and, if minded to increase the sentence, it would have been necessary for this Court to make that clear before resentencing the applicant to a higher sentence. [12] There are, thus, both common elements and different considerations which may apply to this Court in exercising the sentencing discretion. Thus, it may be necessary to re-exercise the sentencing discretion independently of the sentencing judge’s views, but the nature of the exercise will depend upon the manner in which the appeal has been conducted by the parties. It is certainly not the case that the Court must exercise its powers of sentencing afresh in the sense that what occurred in the court below can be ignored. Indeed, if that were to be the case, it might well be necessary to remit the matter to the sentencing court for a further hearing. Significantly, the extent and nature of the resentencing exercise will vary from case to case.

Application of principles

1. [20]

   The Court should accept the applicant’s concession that there was no challenge to the head sentence, but merely to the non-parole period. The Court should also adopt the respondent’s acceptance that the sentencing judge intended some relatively slight variation to the default proportion by way of a downward adjustment. That was consistent with the approach taken by this Court in very similar circumstances in DB v R. [13] However, the approach adopted by the parties in this case differed from that in DB v R.

2. [21]

   There was a degree of ambivalence on the part of the respondent as to the extent of the resentencing exercise. In written submissions, the respondent contended that it was “necessary for this Court to exercise the sentencing discretion afresh”, but also noted that, while it “should consider the applicable sentencing principles”, that exercise must take account of “facts as agreed and determined, and any evaluative assessments made by the Court below (where no issue is joined, or any challenge has been rejected)”. [14] In the course of argument, counsel for the respondent accepted that at least a rounding down of two months would be “entirely fair” and, further, “no lesser head sentence is warranted” and “the non-parole period must itself reflect the criminality involved in the offending”. [15]

3. [22]

   Given the matters which were common ground, this Court can and should confine its consideration to the length of the non-parole period. It may be accepted that its discretion is at large in that respect, with two qualifications. The first is that, although it would involve a reduction of the non-parole period of only two months, the respondent accepted that the Court could, in any event, correct the evident error in imposing a non-parole period which exceeded 75% of the head sentence. The second qualification is that the Court may properly consider whether the sentencing judgment, or the proceedings on sentence, revealed the true intention of the sentencing judge. The reason for taking that approach is not that this Court would be bound to adopt a similar apportionment, but rather that, if satisfied as to the judge’s real intention, which it considered appropriate, it would avoid leaving the offender in a worse position than he would have been had there been no inadvertent mistake.

4. [23]

   A possible indication as to the judge’s intention might be inferred from an error that occurred in the course of delivering judgment. Thus, having convicted the applicant, the judge continued: [16]

5. [24]

   The error in the date indicated for the expiration of the sentence was identified by the prosecutor at the time judgment was delivered, and the judge agreed that the head sentence would expire on 25 September 2035, not 2036. The orders as entered reflected that correction. However, it is possible that when the judge calculated the expiry of the head sentence, he did so on the basis of a 15 year, 6 month period, of which 11 years would be 71%. [17] That proportion, translated to a head sentence of 14 years, 6 months, would give a non-parole of 10 years, 3.5 months. That would be a reduction of 4% (from 75% to 71%) on account of special circumstances, or 8.5 months.

6. [25]

   Whether that constitutes what the judge described as a “very minor adjustment” is unclear. That language should not be equated with trivial or insignificant, so as to negate the purpose of the finding of special circumstances. Further, the judge identified five factors as bases for a finding of special circumstances. Given that the length of the sentence provided a period of at least three years six months in the community (assuming the applicant were to be released at the end of the non-parole period) it is understandable that the judge did not consider that period needed to be increased in order to allow for rehabilitation in the community. So much should be accepted. However, the remaining considerations continued to have salience. It was the applicant’s first time in custody, he was 40 years of age when sentenced (38 at the time he entered custody), he suffered from PTSD (and the loss of sight in one eye as a result of an attack in 2017) and he had been in custody during the restrictive conditions imposed during the pandemic.

7. [26]

   In these circumstances, there should have been a reduction of the non-parole period by 8 months.

Orders

1. [27]

   The Court should make the following orders:

   1. (1)

      Extend the time for service of the notice of appeal up to and including 24 April 2024.

   2. (2)

      Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 28 March 2023.

   3. (3)

      Set aside the sentence and re-sentence the applicant to:

   4. (4)

      The applicant will be eligible for parole on and from 25 July 2031.

2. [28]

   N ADAMS J: I agree with the orders proposed by Basten AJA and generally with the reasons provided by his Honour. I wish, however, to make some further observations concerning the requirement to resentence the applicant (rather than correct the error) when error of the type complained of in this matter is established.

3. [29]

   Since the decision in Kentwell, [18] an intermediate appellate court is required to resentence a successful applicant afresh if error is established in the sentencing process. The relevant passage in Kentwell is [42] and is in these terms (footnotes omitted):

4. [30]

   Although the High Court went on to observe in Kentwell at [42] that not “all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion”, the only example of such an error provided by the High Court (at [42]) was as follows:

5. [31]

   Two questions were left unanswered by the High Court in Kentwell. The first of these was whether all errors, no matter how trivial, require an appellate court to resentence. That issue has been considered in a number of decisions of this Court since Kentwell and it has been held that there is no need to intervene and resentence an applicant unless the error has “the capacity to influence the sentence”. [19]

6. [32]

   The second unanswered question left open following Kentwell concerns what other type of errors fall within the category identified in [42] of the judgment (extracted at [3] above). In other words, what other types of errors can be corrected without the need to completely resentence an offender besides the example provided in [42]? This second question was addressed, to some extent, in Lehn v R. [20]

7. [33]

   In Lehn v R, a five-judge bench (Bathurst CJ, with whom Beazley P, R A Hulme, Schmidt and Wilson JJ agreed) held that even when the error is in respect of “a discrete part of the process”, it is still necessary for this Court to form its own view of the appropriate sentence if the error affects the exercise of the sentencing discretion: at [68] (emphasis added). Significantly, Bathurst CJ identified a further example of when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. That type of error was identified as an arithmetical error where the precise extent of the error can be properly determined: at [72].

8. [34]

   In Lehn v R, the identified error was a denial of procedural fairness. Both the Crown and the applicant had agreed that a discount of 25% for an early plea of guilty was appropriate. Despite this, and without indicating any contrary intention, the sentencing judge only applied a discount of 20%. It is of no small significance that one of the reasons that the court held that the applicant needed to be resentenced in Lehn v R was that the grant of the utilitarian discount of 25% for a plea entered at the earliest opportunity was not mandatory (at [62]). It seems likely that Lehn v R would be decided differently today. That is because since 30 April 2018, following the introduction of the Early Appropriate Guilty Plea (“EAGP”) scheme (Pt 3, Div 1A, ss 25A-25F of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“the Sentencing Act”)), a discount of 25% for an early plea is mandatory. [21]

9. [35]

   In Black v R, [22] the court upheld a ground of appeal that the sentencing judge erroneously categorised the applicant’s case as coming within s 25D(2)(b)(ii) of the Sentencing Act instead of s 25E(2). The court simply corrected the error. Simpson AJA (with whom Ierace and Dhanji JJ agreed) held at [53]:

10. [36]

    A similar approach was taken in Fuller v R, [23] Refaieh v R [24] and Ke v R. [25]

11. [37]

    If it is not necessary for this Court to exercise the sentencing discretion afresh where the established error is an arithmetical one which can be properly identified, then the question arises as to why that category cannot extend to errors which only pertain to the non-parole period and do not affect the exercise of the sentencing discretion overall. As occurred in this case, it is not uncommon for a sentencing judge in a busy court to make a finding of special circumstances for the purposes of s 44(2) (or s 44(2B)) of the Sentencing Act and, through arithmetic error or oversight, not give effect to that finding. For my part it is not clear that such an error always affects the exercise of the sentencing discretion overall especially where, as in this case, the offender is only being sentenced in relation to one offence.

12. [38]

    In Li v R (Cth), [26] the sentencing judge stated an intention to fix a non-parole period “roughly” or “approximate” to the proportion fixed for a co-offender (Wong). The sentence imposed did not reflect this stated intention. Had it done so the applicant would have been required to serve nine months less in custody. After referring to the passages in Kentwell and Lehn v R extracted above, the court (Hoeben CJ at CL, Hidden AJA and I) held that the error was arithmetical and thus there was no need to resentence the applicant. The error was corrected by reducing the non-parole period.

13. [39]

    Similarly, in Sausa v R, [27] both parties agreed that there had been error of the same type as in the present appeal. Both parties also agreed that this Court could correct the error by varying the ratio between the non-parole period and the head sentence. Although the extent of the proposed discount had not been expressed by the sentencing judge, the court (Wilson J, Cavanagh J and I) accepted the joint position of the parties that the resentencing could be confined to a reconsideration of the non-parole period.

14. [40]

    The Crown took a different approach in Christian v R. [28] In that appeal, the only ground of appeal was that a finding of “special circumstances” for the purposes of s 44(2B) of the Sentencing Act was not given effect in the sentence imposed. Although the parties agreed that the error was established, they did not agree about whether the sentencing discretion had to be re-exercised afresh. The applicant sought to limit the appeal to a reconsideration of the non-parole period, but the Crown objected to that course. Beech Jones CJ at CL (with whom R A Hulme and Dhanji JJ agreed) ultimately held that in the circumstances the sentencing discretion could not be limited to varying the ratio and had to be re-exercised afresh. Beech-Jones CJ at CL observed at [36]-[37]:

15. [41]

    Although R A Hulme and Dhanji JJ ultimately agreed with the approach proposed by Beech-Jones CJ at CL, their decisions appear to have turned on the opposition by the Crown to any alternate approach. R A Hulme J observed the following at [44]-[45]:

16. [42]

    R A Hulme J went on to state that his agreement with Beech-Jones CJ at CL was because he was bound by Lehn v R. His Honour then extracted paragraphs [126]-[127] from his concurring judgment in Lehn v R as follows:

17. [43]

    As in the present case, R A Hulme J noted in Christian v R that the applicant’s position was that the intervention of this Court could be confined to the reassessment of the non-parole period. His Honour went on to observe the following at [48]:

18. [44]

    In a similar vein, R A Hulme J went on to observe the following at [50]:

19. [45]

    Although Dhanji J did not express a concluded view, his Honour observed the following at [51]:

20. [46]

    Thus, two of the three judges in Christian v R raised some doubt as to whether the court is precluded from simply correcting error of the type in the present appeal if both parties are content with that approach. More recently, in DB v R [29] , a similar error arose, and the Crown took the position it did in Christian v R (rather than the position it took in Sausa v R). In the face of opposition by the Crown to the court simply correcting the discrete error, the court resentenced the applicant afresh.

21. [47]

    It is not apparent to me why the scope and nature of an appeal such as this is left to be dictated by the respondent rather than the applicant. An application for leave to appeal to this Court under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) is, like all appeals, confined by the scope of the grounds raised by the applicant. For my part, I see no reason why, when the identified error only concerns the non-parole period and the applicant confines the complaint to that discrete issue, this Court is required to ignore the applicant’s position and accede to a Crown request to resentence the applicant afresh. I agree with the observations of R A Hulme J in Christian v R in that regard.

22. [48]

    As can be seen, the question of whether it is appropriate, if the parties agree, to simply correct error of the type established in this appeal, does not appear to be settled. Despite this, it does seem to be settled that if the Crown does not agree with this course (and their approach has not been consistent) then this Court is required to resentence afresh. This is clearly an unsatisfactory result.

23. [49]

    Having expressed my misgivings about the Crown’s position that (contrary to the applicant’s position) this Court must resentence the applicant, it seems to me that there is no need to do so in the present matter as the nature of the arithmetic error is apparent.

24. [50]

    It was common ground that when the extent of the arithmetic error is apparent, then it can be corrected. That is consistent with the decision in Lehn v R and was the approach taken in Black v R, Fuller v R, Refaieh v R and Ke v R. As Basten AJA has explained at [19], the sentencing judge initially expressed the sentence to be one of imprisonment of 14 and a half years commencing on 26 March 2021 and expiring on 25 September 2036 with a non-parole period of 11 years. The DPP solicitor immediately drew to his Honour’s attention that 14 and a half years from 26 March 2021 was in fact 25 September 2035, not 2036. His Honour changed that end date but did not reconsider the ratio at that time. The ratio between the initial head sentence (to expire on 25 September 2036) and the non-parole period of 11 years is 71%. I am satisfied that this is the ratio his Honour commenced with prior to the adjustment which had the unintentional result of changing the ratio. Given that the extent of the arithmetic error is apparent, it is appropriate for this Court to intervene to correct that error.

25. [51]

    HUGGETT J: I agree with the reasons and orders proposed by Basten AJA. I also agree with the additional observations of N Adams J.