Sentence Inquiry Allowed Due to Potential Sentencing Errors

The application by the claimant for an inquiry into sentence was granted due to potential error in the original sentencing process, specifically regarding the standard non-parole period and its impact on the sentence.

Supreme Court New South Wales

Medium Neutral Citation: Application by [NAME] pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1705 Hearing dates: On the papers Decision date: 19 November 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Application granted. The applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. Catchwords: APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - offence of four counts of aggravated sexual intercourse without consent involving person under age of 16 years - centrality of standard non-parole period to sentencing exercise - [NAME] error - application granted Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: [NAME] v The Queen [2008] NSWCCA 244 [NAME] v The Queen (2011) 244 CLR 120 [NAME] v Attorney General of NSW [2013] NSWCA 383 Category: Principal judgment Parties: [NAME] - (Applicant) [NAME] - (Respondent) Representation: [NAME] - (Applicant) [NAME] - (Respondent) File Number(s): 2013/215634

DECISION 1The applicant, [NAME], seeks an inquiry into his sentence under s 78(1) of the Crimes (Appeal and Review) Act 2001 (the Act). The applicant submits that the sentence ought be referred to the Court of Criminal Appeal as an appeal under the Criminal Appeal Act 1912. 2The applicant contends that there is a doubt or question as to a mitigating circumstance in his case, namely that the applicant's sentence was infected by error in that undue weight was accorded to the standard non-parole period contrary to the decision of the High Court in [NAME] v The Queen (2011) 244 CLR 120. 3It is not necessary for the purposes of this application to canvass the nature of the proceedings under s 78 of the Act. It is sufficient to observe that they are administrative in nature and that they need not consider whether there is any merit in the grounds of the application that might warrant interference in the sentence. Provided a doubt or question arises, it is appropriate that the application be granted. 4The applicant was convicted after trial in 2006 of four counts of aggravated sexual intercourse without consent involving a person under the age of 16 years, contrary to section 61J of the Crimes Act 1900. That offence carries a maximum penalty of 20 years' imprisonment and carries a standard non-parole period of 10 years. On 23 February 2007, [NAME] sentenced the applicant to four concurrent sentences comprising a non-parole period of eight years and six months on each count, to date from 21 August 2005, with an additional period of four years and 10 months. The full term of imprisonment was one of 13 years and 4 months. The applicant is eligible for release to parole on 20 February 2014. 5The applicant was 34 years of age at the time of the offences. He had a long history of drug abuse and was diagnosed with schizophrenia in 2002. On 20 August 2005, the applicant took the complainant, a girl slightly above 10 years of age, to his home where he injected himself with speed and watched a pornographic DVD. The offences consisted of penetration of the complainant's anus with one of his fingers, his penis and a dildo, followed by penetration of the genitalia with his penis after which he ejaculated onto a pillow. 6The sentencing judge made the following comments :- The offences fall within the middle of the range of objective seriousness and therefore the standard non-parole period is the starting point for the determination of an appropriate sentence. I have determined that, balancing everything that I have said about the offences and the offender, that the standard non-parole period of 10 years is the appropriate starting point for the sentence, so that the appropriate sentence for each offence is imprisonment for 13 years and four months. 7The applicant sought leave to appeal against his conviction and sentences. These appeals were dismissed : [NAME] v The Queen [2008] NSWCCA 244. 8The sole ground of appeal in relation to the applicant's sentence was whether the trial judge failed to give proper weight to the applicant's mental illness. The court (Basten JA, Hislop and Price JJ) determined that the judge had failed to take account of the combined effect of the applicant's mental illness and his segregation within the [NAME] when imposing sentence. However, Price and Hislop JJ declined to interfere with the sentence imposed on the basis that the total concurrency of the sentences failed to reflect the totality of the applicant's criminality and therefore no lesser sentence was warranted in law. Basten JA was of the view that a longer than usual parole period was justified by the requirements for treatment of the applicant's mental illness. 9More particularly, Basten JA referred to the judge's "mechanistic approach" to sentence. His Honour was of the view that the subjective features of the applicant were capable of affecting the term of his non-parole period, such that fixing the sentence by reference to the standard non-parole period was potentially erroneous. 10In the light of the comments made by Basten JA and the centrality of the standard non-parole period to the sentencing exercise, in particular the reference to the standard non-parole period as a "starting point", the Attorney General acknowledges that there is sufficient material to raise a doubt or question as to a mitigating circumstance in the applicant's case, namely that there is [NAME] error which may warrant interference in the sentences imposed: [NAME] v Attorney General of NSW [2013] NSWCA 383. 11Accordingly, the application is granted. The applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2013