GP v Regina

MACFARLAN JA: I agree with Hamill J.

BUTTON J: I agree with Hamill J.

HAMILL J: The applicant (whose name is subject to a non-publication order) seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Norton SC in the District Court sitting at Parramatta on 15 April 2016. He was sentenced in respect of three offences committed in 2004 and 2005 of which he was found guilty by a jury on 1 June 2015. There were two counts of committing an act of indecency on a child under the age of ten years and one count of sexual intercourse with a child less than ten years. [1]

Judge Norton sentenced the applicant to an aggregate sentence of 10 years with an aggregate non-parole period of 7½ years. Her Honour complied with the relevant statutory provisions by indicating the individual sentences for each count that would have been imposed had an aggregate sentence not been imposed. [2] No complaint is made about those indicative sentences or the total aggregate sentence of 10 years. Rather, the application is directed solely to the length of the non-parole period and the failure of the trial judge to find “special circumstances”.

The argument arises because the sentence was partially accumulated upon a pre-existing sentence imposed by Judge Payne on 26 February 2016. Judge Payne dealt with the applicant by imposing individual sentences in relation to five counts of child sex offending, which occurred between 1985 and 1994, in relation to which the applicant had been again convicted after trial by a jury. Judge Payne imposed individual sentences for each count, making them partially concurrent and partially cumulative. The total effect of the sentence imposed by Judge Payne was a total sentence of 8 years with a total non-parole period of 5 years. It will be seen that the structure of that sentence allowed for a balance of term of 3 years during which the applicant may have been eligible for parole. The non-parole period was 62.5% of the total sentence. Her Honour found special circumstances for a number of reasons, including the fact that the sentences were to be partially accumulated.

The result of the partial accumulation of the sentence imposed by Judge Norton is that the applicant is to serve a total combined sentence of 13 years and 6 months with a total combined non-parole period of 11 years. As a result of the partial accumulation, the period during which the applicant may be eligible for parole was reduced from 3 years to 2½ years. The total combined non-parole period is now about 81.5% of the total combined sentence.

The applicant relies on a single ground of appeal in the following terms:

In essence, the applicant complains that her Honour ought to have found “special circumstances” pursuant to s 44 of the Crimes (Sentencing Procedure) Act in the fact of the accumulation and the impact that would have on the proportion between the total sentence and the total non-parole period as well as the length of the period during which the applicant would be eligible for parole (that is, the balance of term).

In the course of the hearing of the appeal, the issue for the Court was distilled into the question of whether the learned sentencing judge was conscious of, or adverted to, the proportion between the non-parole period and the total sentence or whether the impact of the accumulation in that regard was inadvertent.

The facts of the three offences with which Judge Norton was concerned were set out in her Honour’s judgment as follows:

Judge Payne recounted the facts of the offences with which she was dealing in the following terms:

These facts constitute a very serious example of offences of their kind. Further, the applicant pleaded not guilty and remained remorseless in respect of both sets of offences. The offences occurred many years apart and the applicant had a criminal record including offences of rape for which he was convicted and sentenced to a lengthy period of imprisonment in the early 1980s.

In those circumstances, it is not surprising that the applicant did not attempt to argue that the sentences, either individually or in their totality, were excessive.

Section 44 of the Crimes (Sentencing Procedure) Act relevantly provides:

The requirement that the non-parole period be not less than 75% of the total sentence has been part of the law since the introduction of the Sentencing Act 1989. That “statutory ratio”, as it is often described, has been part of the sentencing law of New South Wales since 1989 although the legislation and terminology have changed from time to time. The provision, in its various forms, has provided fertile ground for appellate lawyers. [3] The non-parole period must not be less than 75% of the total unless there are special circumstances. There is no statutory requirement that a sentencing judge must give reasons for setting a non-parole period that is more than 75% of the total sentence. [4] However, it is generally accepted that the question of “special circumstances” should be considered (and referred to) “in every case” and that reasons may be required if the non-parole period exceeds 75% of the total sentence. [5]

It was held at an early stage that accumulation of sentences may amount to special circumstances. In R v Simpson (1992) 61 A Crim R 58 Hunt CJ at CL said at 60-61 that “where the minimum term is accumulated upon an existing minimum term, that fact may of itself constitute special circumstances justifying a departure from the one third rule”. His Honour went on to say at 61:

Similar statements have been made in a large number of other cases. [6]

In McKittrick v R [2014] NSWCCA 128, Simpson J (as her Honour then was) said:

Her Honour discussed the history of the provision and referred to the second reading speech introducing the 1989 legislation. Her Honour said at [42]:

Adamson J made the following observation at [154]:

However, as was pointed out by Ms England in her helpful submissions on behalf of the respondent, there is no absolute rule that an accumulated non-parole period must comprise 75% of the total sentence. Nor is there any statutory requirement for reasons to be given when a non-parole period is greater than 75% of the total sentence. She pointed to cases in which the Court was able to infer that the sentencing judge had adverted to the impact of the accumulation: see, for example, Tuivaga v R [2015] NSWCCA 145 and Stoeski v R [2014] NSWCCA 161.

Ultimately, the parties agreed that the question is whether the record of proceedings leads to an inference that the matter was considered or adverted to or not. Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation. That was not done in this case. Both the transcript and the judgment on sentence are silent on the issue. There is a discussion of the principle of totality both in submissions and in the remarks on sentence. It is clear that her Honour appropriately and properly applied such principles in assessing the degree of accumulation in terms of the total effective sentence.

However, there is nothing to support the inference that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. In particular, her Honour made no remark concerning the fact that the proportion settled upon by Judge Payne (62.5%) would, as a result of the accumulation, become 81.5%. Equally, there is nothing in the arguments or in the remarks on sentence to suggest that her Honour considered the fact that the 3 year balance of term settled upon by Judge Payne would be reduced to 2 ½ years upon the accumulation of the sentence.

No submissions were made by either counsel to assist her Honour, or to remind her, of the many cases in which it has been held that the accumulation of sentences may amount to special circumstances. In fact, neither party referred to special circumstances until her Honour raised the matter herself at the conclusion of defence counsel’s brief submissions on sentence. Even then, no reference was made to the impact of the accumulation on the proportion between the head sentence and a non-parole period.

In spite of the earnest submissions of Ms England, I am satisfied that Judge Norton did not advert to this matter and that the deviation from the “statutory ratio” was an inadvertent outcome of the accumulation.

Accordingly, the applicant’s sole ground of appeal must be upheld.

Counsel for the applicant correctly submitted that if error was demonstrated, the Court must consider the sentencing discretion afresh. [7] I am satisfied that it is appropriate to impose an aggregate sentence in respect of the three offences. No submission was made that the Court should interfere with the total sentence of 10 years or that there was any error in the indicative sentences. Having considered the seriousness of the offending and the applicant’s criminal history, I am not satisfied that a different, less severe, total period of imprisonment is warranted. Nor am I satisfied that less severe indicative head sentences are warranted. Those indicative sentences were 18 months (count 1), 12 months (count 3) and 10 years (count 2). I would adopt those indicative head sentences for the purpose of imposing an aggregate sentence. The indicative non-parole period for count 2 will reflect the finding of special circumstances in relation to the aggregate sentence. Pursuant to s 54B(4) Crimes (Sentencing Procedure) Act, I indicate a non-parole period of six years for count 2.

I am satisfied that the sentence should be partially accumulated on the sentence imposed by Judge Payne and that the commencement date settled upon by Judge Norton (1 December 2018) is the appropriate date. In re-sentencing the applicant, I am satisfied that there are special circumstances arising from the accumulation of the sentence on the sentence imposed by Judge Payne and other matters referred to by Judge Payne, such as the need for the applicant to have an extended period on parole to re-integrate into the community. The Court should intervene to resentence the applicant in respect of the non-parole period. My intention is to impose a total cumulative non-parole period (9½ years) which is around 70% of the total cumulative sentence (13½ years). The 70% proportion falls between the proportion provided for by Judge Payne (62.5%) and the statutory ratio (75%).

Accordingly, the orders that I favour are as follows: