DS v R

Judgment 1THE COURT: On 17 September 2009, the appellant was found guilty by a jury of two offences contrary to the Crimes Act 1900, s 61M(2): counts 1 and 3; one offence contrary to s 61O(2): count 2; and an offence contrary to s 66EA(1): count 5. Relevantly for present purposes, the appellant was sentenced to imprisonment on count 3 to a term of 8 years commencing on 20 May 2010 and to expire on 19 May 2018, consisting of a non-parole period of 6 years commencing on 20 May 2010 and to expire on 19 May 2016 and a balance of term of 2 years commencing on 20 May 2016 and to expire on 19 May 2018. 2The total aggregate term to which the appellant had been sentenced was 13 years which commenced on 20 May 2009 and was to expire on 19 May 2022, consisting of an aggregate non-parole period of 9 years 9 months which commenced on 20 May 2009 and which was to expire on 19 February 2019 and an aggregate balance of term of 3 years and 3 months commencing on 20 February 2019 to expire on 19 May 2022. 3An appeal against conviction was dismissed by this Court on 26 July 2012. However, leave to appeal against sentence was granted and the appeal was allowed in respect of the sentences imposed for counts 3 and 5: DS v Regina [2012] NSWCCA 159. 4On 6 August 2012, the Crown applied, by letter, for the reopening of the appeal against sentence on the basis that the Crown had made an erroneous concession on the appeal that the standard non-parole period applicable to count 3 was 5 years, when in fact, the applicable standard non-parole period was 8 years. 5Count 3 carried a maximum penalty of 10 years imprisonment. The Court re-sentenced the appellant on count 3 to a non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014. The appellant has now served the non-parole period to which he was sentenced by this Court. 6The appellant nonetheless remains in custody, as the non-parole period imposed in respect of count 5, which was ordered to commence on 20 May 2012, does not expire until 19 February 2019. The appellant is also subject to an order for the balance of term in respect of count 5 of 3 years and 3 months, which will expire on 19 May 2022. 7On the appeal, the specific error alleged in respect of the trial judge's sentencing on count 3 was that her Honour had wrongly stated the non-parole period in respect of this offence. The appellant had submitted that the error was such as to require the Court to re-sentence him. As we have noted, the Crown, on the appeal, conceded this error. The concession, however, was wrongly made. 8The Crown has now submitted to the Court that the error should be corrected so that there is not a wrong sentence on the record. It seeks that the Court should now proceed to sentence the appellant in accordance with law. The Crown recognised that a possible consequence of its application was that a longer sentence would be imposed in respect of count 3 than imposed by the Court on 26 July 2013. 9The Crown does not contend that the sentence ought to be as severe as that imposed by the trial judge. Presumably, this submission was based on this Court's view, at [137] of our original decision, that the sentencing judge had "too prescriptively tied the non-parole period to the standard non-parole period" contrary to the principle in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 10The Crown's application was made pursuant to the Criminal Appeal Rules, r 50C and alternatively, the Crimes (Sentencing Procedure) Act 1999, s 43. 11Rule 50C provides: "50C Power to set aside or vary order (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order." (emphasis added) 12The Court's orders made on 26 July 2012 were entered on 31 July 2012. The Crown's letter of 6 August 2012 was made within 14 days of entry of the orders. The Criminal Appeal Rules, r 2 provides: "(1) The forms set out in the Schedule to these Rules, with such alterations as circumstances require, shall be used in all cases where such forms are applicable; but any variance therefrom not being in matter of substance, shall not affect the validity of the proceedings." 13Given that the form in which an application is made is not a matter of substance, the letter of 6 August 2012 should be accepted as constituting an application to the Court so as to engage the Court's jurisdiction pursuant to r 50C: see R v Green and Quinn [2011] NSWCCA 71 at [30]. We would comment, however, that the Crown should nonetheless, when seeking to engage the Court's authority to increase a sentence already passed, articulate the relief sought in an application duly filed in the Registry rather than merely writing to the Registrar. 14As the Court considers that r 50C applies, it is not necessary to consider whether the application may also be brought under the Crimes (Sentencing Procedure) Act, s 43. 15The appellant appeared on the hearing of the application. He accepts that his contention on the appeal, and the Crown concession, that the trial judge had applied the wrong standard non-parole period, was wrong. Although he originally contended that the letter from the DPP was insufficient to give the Court jurisdiction under r 50C, he abandoned that position during the course of oral argument. 16The appellant accepts that the record should be amended so as to properly reflect the law, but submitted that the Court should not now interfere with the sentence it imposed on 26 July 2012, particularly as the non-parole period had expired. 17The Crown's concession on the appeal that the standard non-parole period was 5 years, resulted from a failure to appreciate that from 1 January 2008, the increase to the standard non-parole period applied to all offences under s 61M(2) unless the offender had already been sentenced or a plea of guilty had been accepted. 18The correct statutory position is as follows (what appears below has been extracted from the Crown's submissions and has been reviewed and considered to be correct). 19The Crimes (Sentencing Procedure) Act 1999 commenced on 30 April 2000. The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 commenced on and from 1 February 2003. 20It is relevant to note that the period pleaded in count 3 was in respect of the period 1 February 2003 and 14 September 2003. 21By s 3 and Sch 1[4] of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, the Crimes (Sentencing Procedure) Act 1999 was amended by the insertion of Pt 4, Div 1A which, inter alia, provided a Table that included (at Item 9B) a standard non-parole period of 5 years for offences contrary to s 61M(2) of the Crimes Act 1900. 22By s 3, Sch 3.2[9] of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 the Crimes (Sentencing Procedure) Act 1999 was also amended by the insertion of Sch 2, Pt 7, cl 45, which provided, relevantly, that Pt 4, Div 1A (the standard non-parole provisions) does not apply to offences committed before the commencement of the amendments provided. The effect of this provision, therefore, is that the standard non-parole period provisions do not apply to offences committed before 1 February 2003. 23The Crimes (Sentencing Procedure) Amendment Act 2007 commenced on and from 1 January 2008. 24By s 3 and Sch 1[10] of the Crimes (Sentencing Procedure) Amendment Act 2007, Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 was amended by omitting "5 years" from Item 9B of the Table and inserting "8 years", viz, increasing the standard non-parole period from 5 years to 8 years for offences contrary to s 61M(2) of the Crimes Act 1900. 25By s 3, Sch 1[16] of the Crimes (Sentencing Procedure) Amendment Act 2007, the Crimes (Sentencing Procedure) Act 1999 was also amended by the insertion of Sch 2, Pt 17, cl 57 which provided that the amendments made by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to all such offences whenever committed unless before the commencement of that Act the sentencing court had convicted the offender or accepted from the offender a plea of guilty that had not subsequently been withdrawn. 26The appellant had not, relevantly, been convicted in the period between 1 February 2003 and 1 January 2008. Thus, the standard non-parole period for count 3 was 8 years. 27In sentencing the appellant, the trial judge considered the appellant's offending in respect of count 3 to be below the mid-range of objective seriousness. On the appeal, there was no challenge by the Crown to that assessment. The Court, at [142], whilst noting that a determination in those terms is not required by the Act: see Muldrock, considered that her Honour's finding correctly reflected the objective seriousness of the offence. There were no relevant mitigating factors. 28The Crown submitted that, in now re-sentencing the appellant, the Court would not be influenced by the expiry of the non-parole period as the appellant remains in custody in respect of count 5. Rather, the Court should now impose an appropriate sentence in accordance with law. 29The circumstances of count 3 are recounted at [11] of the Court's principal judgment. In re-sentencing the appellant, the Court, at [142], took into account that count 3 "exhibited a heightened and more serious degree of sexual conduct on and towards the complainant" than was constituted in the offending conduct in grounds 1 and 2. The Court also commented, at [143]: "Although this sentence is considerably lower than that imposed by the trial judge, the Court considers it properly reflects the appellant's criminality on this occasion ..." 30The question which now arises is whether the Court should impose some different sentence having regard to a standard non-parole period of 8 years and applying the principles stated in Muldrock. In Muldrock, the Court stated, at [27]: "Section 54B(2) and s 54B(3) [of the Crimes (Sentencing Procedure) Act 1999] oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 31This Court's sentencing remarks referred to at [29] above were made and the sentence was imposed, in the context of the principles in Muldrock, but having regard to a standard non-parole period of 5 years. Having regard to the principles in Muldrock, which include reference to the standard non-parole period, in this case of 8 years, as one of two legislative guideposts, the other being the maximum penalty of 10 years, the Court has concluded that a different sentence is warranted from that imposed by way of re-sentence on 26 July 2012. 32Accordingly, we make the following orders:

1. Vacate the sentence imposed on the appellant by this Court on 26 July 2012 in respect of count 3;
2. Re-sentence the appellant in respect of count 3 to a non-parole period of 4 years and 6 months to commence on 20 May 2010 and to expire on 19 November 2014 and an additional term of 1 year 6 months commencing on 20 November 2014 and to expire on 19 May 2016.

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