[This headnote is not to be read as part of the judgment]
In July 2013 the appellant was charged with five counts of indecent assault on a child. All of the offences were historic, having been committed between 1972 and 1981 and were contrary to s 81 of the Crimes Act 1900, which applied at the time the offences occurred. The appellant pleaded guilty to three counts and on 26 August 2015 stood trial for the other two counts.
At trial the Crown case was that the appellant, who at the material times was a Catholic Priest, performed fellatio on the victim (count 1) and inserted an object into the anus of the same victim (count 2). The offences occurred on the same evening at approximately the same time.
On 7 September 2015, the appellant was convicted of both offences. On 25 February 2016, the appellant was sentenced for all five offences. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentencing judge imposed an aggregate sentence of imprisonment for 2 years and 3 weeks, with a non-parole period of 6 months.
The appellant appealed against his conviction on the ground that the primary judge erred in directing the jury as to the correct approach when dealing with multiple counts. The appellant argued that by directing the jury that their verdicts must be "logically consistent", the primary judge invited the jury to render a verdict not based on the evidence which related to each count but on their decision in relation to a previous count. The appellant argued that this reversed the onus of proof and that as a consequence of this error, the trial miscarried.
Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the appellant sought leave to appeal against the severity of the sentence. The appellant argued that the sentencing judge failed to apply the sentencing standards of the time the offences were committed. He also argued that the sentencing judge did not have adequate regard to his age, ill health and the delay in bringing the proceedings.
Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Crown appealed against the sentence on the following grounds:
His Honour's sentencing discretion miscarried by reason of him engaging in sequential reasoning, rather than him sentencing by instinctive synthesis.
His Honour erred by making a finding of special circumstances based on matters that had already been taken into account.
His Honour erred by determining that the two offences against DA would be served concurrently because they occurred on the same occasion and against the same victim.
His Honour erred in failing to have any regard to general deterrence.
The aggregate sentence passed by his Honour was manifestly inadequate.
Held
In the conviction appeal
Hoeben CJ at CL (Simpson JA and Price J agreeing) dismissing the conviction appeal:
No objection to the direction was taken at trial. This enlivens rule 4 of the Criminal Appeal Rules. The fact that no objection was made at the time also indicates that when the direction was made counsel saw no injustice or error: at [15]-[16].
R v Tripodina [1998] 35 A Crim R 183 considered.
The direction given by the sentencing judge was in accordance with R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. Such a direction was appropriate because this was a "word against word" case where the offences occurred at almost the same time: at [19]-[20]
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 applied.
Leave pursuant to rule 4 of the Criminal Appeal Rules was refused because the appellant failed to demonstrate that the ground was arguable or that a miscarriage of justice occurred: at [28]-[29].
In the Crown sentence appeal
Simpson JA (Hoeben CJ at CL agreeing at [30]), dismissing the Crown appeal:
Three of the five grounds of appeal pleaded by the Crown disclose error in sentencing. The sentencing judge erroneously engaged in a two-stage approach and the appellant was correct to concede this error: at [75]-[77]
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 applied.
The sentencing judge erred by taking into account the appellant's age and ill health with respect to both the selection of the sentence and the question of special circumstances. The appellant was correct to concede this error: at [78]
The sentencing judge erred by failing to have regard to general deterrence: at [83]-[84]
Notwithstanding the errors identified by the Crown, the residual discretion of the Court should be exercised to dismiss the Crown's sentence appeal. The sentence imposed by the sentencing judge was within the range of sentences that could justly be imposed for the offences in the circumstances of the case: at [85]-[86].
Bugmy v The Queen [2013] HCA 37; 249 CLR 571 applied.
Price J dismissing the Crown appeal:
Three of the five grounds of appeal pleaded by the Crown disclose error: at [122].
The Crown has demonstrated that the sentence imposed was manifestly inadequate. However, the residual discretion of the Court should be exercised to dismiss the Crown appeal on compassionate grounds: at [123].
In the appellant's application for leave to appeal
Simpson JA (Hoeben CJ at CJ agreeing at [30]) granting leave to appeal and allowing the appeal:
None of the appellant's grounds of appeal discloses error. The appellant was sentenced in accordance with sentencing standards as at the dates of the offences. The sentencing judge gave full weight to the appellant's personal circumstances: at [72]-[74].
R v MJR [2002] NSWCCA 129; 54 NSWLR 368 applied;
Magnuson v R [2013] NSWCCA 50 considered.
The error of principle identified by the Crown (which was conceded by the appellant) means that the appellant has not been sentenced according to law. It would be a distortion of justice for the Court to find that there has been an error in sentencing but to not intervene because the error has been exposed by the Crown rather than the appellant: at [91]-[92]
In criminal matters the Crown has a duty of fairness and a duty of candour to the Court. Accordingly, the Crown has an obligation to draw an error to the attention of the Court or to the offender even if that opens the potential for a reduction in sentence. The integrity of the criminal justice system is sustained by the Crown accepting this obligation to correct error: at [96]
The statements in Kentwell apply to sentencing affected by error of principle, by whomever the error is exposed; once error is established it is not the role of the appellate Court to assess the effect of the error on the outcome: at [93], [97].
Kentwell v The Queen [2014] HCA 37; 252 CLR 601 applied.
Notwithstanding that the appellant's grounds of appeal do not disclose error, the appellant should be granted leave to appeal and the appeal should be allowed: at [98].
The appellant should be re-sentenced to an aggregate term of imprisonment for 2 years, with a non-parole period of 3 months: [117].
Price J granting leave to appeal and dismissing the appellant's appeal:
None of the appellant's grounds of appeal have been made out: at [122].
While the Crown occupies a special position in criminal matters and is obliged to correct error, the errors identified by the Crown which indicate the inadequacy of the sentence cannot be used to reduce the sentence. There is no distortion of justice where the errors identified by the Crown indicate that, absent those errors, a longer sentence may have been imposed by the sentencing judge: at [125].
There is nothing in Bugmy which suggests that after the Crown identifies a specific error but the Crown appeal is dismissed, the Court is obliged to re-sentence an appellant. The statements in Kentwell should not be construed so as to require this Court to re-sentence an appellant where any specific error in sentencing is identified even though that error benefited the appellant: at [126]-[127].