Rosenstrauss v R

D L Carroll - Applicant F A Veltro - Respondent Solicitors:

Legal Aid NSW- Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent File Number(s): CCA 2010/95566 Decision under appeal Jurisdiction: 9101 Citation: R v Rosenstrauss [2011] NSWDC 46 Date of Decision: 2011-02-18 00:00:00 Before: Berman DCJ File Number(s): DC 2010/95566

Judgment 1BASTEN JA : The issue raised by this application for leave to appeal falls within a small compass. 2On 18 February 2011 the applicant was sentenced by Berman DCJ in the District Court for three sexual assaults upon a young girl, committed some 30 years earlier. The precise dates of the offences were not clearly established by the evidence because the complainant was 10 years or younger at the time of the first offence. However, the end of the period of offending appears to have been May 1981, when the complainant was 11 years of age. 3The complainant did not go to the police until 2009. The charges on the indictment, however, alleged offences against the law as it stood up to May 1981, under s 76 of the Crimes Act 1900 (NSW), since repealed. Each charge was of assault involving an act of indecency upon a person under 16 years of age. The maximum penalty for the offence at that time was six years imprisonment. 4It will be necessary to address the specific sentences in due course. Relevantly in respect of the appeal, the effect of the sentencing was to impose an overall period of three years imprisonment, with a non-parole period of two years. Those periods were to date from 18 February 2011, being the date of sentencing. 5The ground of the proposed appeal is that although the sentencing judge sought to apply sentencing practices as they operated at the time of the offences, the non-parole period failed in that respect as at that time a relevant non-parole period would have been between one-third and one-half of the overall sentence period. 6The correct approach, in terms of principle, was established by this Court in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. The Court adopted the principle identified by Mason CJ and McHugh J in Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632: "In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood." 7Section 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act ") limits the effect of any increase in penalty to offences committed after its commencement. Consistently with that approach, the Court in MJR held that it should take into account sentencing practice as it was at the date of commission of the offence, when sentencing law and practice has changed adversely to an offender: at [27] and [31]. 8In AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32, Howie J (Adams and Price JJ agreeing) addressed a submission that it was necessary to take into account the fact that, in 1982, being the end of the period of offending in that case, remissions were available to reduce sentences imposed by the courts. Howie J stated at [31]: "There are many cases that indicate how the remission system operated and it is fair to say that, had the applicant been sentenced in 1982, he would, in all probability if not certainty, have received the benefit of a reduction of one third of his sentence. At this time remissions only applied to the head sentence and not to the non-parole period; see generally R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340 as to the history and application of remissions. But I do not believe that it is appropriate for this Court to try to replicate, not only the sentencing practices of 1982, but also executive practices of that time in respect to the treatment of prisoners." 9Howie J noted that in 1982 "a non-parole period was fixed at somewhere between a third and a half of the term of the sentence": at [39]; see also Dousha v R [2008] NSWCCA 263 at [35] (Fullerton J, Bell JA and Latham J agreeing); Mottram v Regina [2009] NSWCCA 210 at [41] (Hoeben J, Macfarlan JA and Grove J agreeing) and PWB v R [2011] NSWCCA 84 at [64] (RS Hulme J). 10The remission system was abolished with reforms described as reflecting "truth-in-sentencing", effected by the Sentencing Act 1989 (NSW), which commenced on 25 September 1989. 11The remission system operated not pursuant to the general law, or executive act (although there were areas of discretion) but pursuant to regulations made under the Prisons Act 1952 (NSW) and, at the relevant time, the Prisons Regulation 1968 (NSW). The entitlement to "ordinary" remissions varied depending upon whether the offender had previously served a period of imprisonment of three months or more. If so, he or she was entitled to remission of one-quarter of the sentence period; if not, the entitlement to remission was one-third of the sentence period. (The relevant provisions are conveniently found in Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171 at 183-185, in the judgment of Hope JA; see also Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 and Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327.) 12As explained by Gleeson CJ, Hunt and Loveday JJ in Maclay , it was established principle that the sentencing judge should not increase the sentence to counteract the effect of anticipated remissions on the period to be served. However, that did not mean that the court ignored the anticipated remissions. With the introduction of the parole system pursuant to the Parole of Prisoners Act 1966 (NSW), it became necessary for the sentencing judge to take account of the likely diminution on account of remissions in order to avoid "the absurd result that a prisoner would be, as a result of the remissions system, released before the expiration of the non-parole period specified by the sentencing judge, with the result that the non-parole period would be rendered nugatory": Maclay at 117G; Reg v Furey [1971] 2 NSWLR 262 at 267. 13There might be a nice question as to whether it would now be necessary to consider the sentencing practices at the date of the offending, or as at the date of likely sentencing. With the commencement of the Probation and Parole Act 1983 (NSW), the absurdity which had previously existed was removed by providing for remissions to apply to the non-parole period. The result was, again in the words of the Court in Maclay, that "all marched precisely in step in a proportionate sense": at 118G. However, the courts held that "neither in relation to head sentences nor in relation to non-parole periods were sentencing judges to increase terms to negative the effect of remissions that would be applied to them": Maclay at 120D. 14Applying the law, rather than executive practice, a sentencing court, whether in 1981 or 1984, would have fixed a non-parole period on the assumption that the overall "sentence period" would be reduced not only by one-third, on account of ordinary remissions, but also for "earned" remissions and, in all probability, other remissions which might accrue from time to time, such as "special strike remissions", designed to recognise the increased harshness of imprisonment during periods of industrial action by prison officers, which were not uncommon. 15By way of example, the offender in Smith's case, who was serving an overall period of 12 years on account of five cases of rape, and was not a first offender, received a non-parole period of seven years, being 58% of the sentence period. Because, in the present case, a sentencing judge would have expected the applicant's sentence period to be reduced by more than one-third, it is likely that the non-parole period would have been less than 50% of the sentence period. 16The sentencing judge imposed a non-parole period which was two-thirds of the sentence period. Because that would not have accorded with sentencing practice at the time of the offending, his Honour erred. In accordance with the practice identified by Howie J in AJB , the non-parole period would have been between 12 and 18 months in the case of a first offender. (The fact that, if sentenced after the commencement of the Probation and Parole Act 1983 , that period would have been reduced on account of remissions, would have properly been ignored.) 17The remaining question is whether this Court should intervene on the basis that some other sentence is "warranted in law and should have been passed", for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW). 18In the course of argument, the Court's attention was directed to Mottram , where a similar error to that identified in the present case had been made in fixing the non-parole period, but the Court did not intervene. In that case the applicant had obtained the benefit of total concurrency in respect of six sentences, where at least in relation to two particular sentences involving a different victim at a later point in time, some degree of accumulation was required: at [47]. Hoeben J concluded that a "proper application of the principles of proportionality and totality to the offending conduct in this case, even allowing for the lower maximum sentences applying during the 1970s and 1980s, would have inevitably resulted in sentences greater than those passed by his Honour": at [49]. However, that passage demonstrates why, on its facts, Mottram was distinguishable from the present case. Not only was there no challenge by the Director to the overall sentence period in this case, but there was also no contention that it should have been treated as manifestly inadequate for the purpose of declining to intervene pursuant to s 6(3). The respondent's contention that no other sentence was warranted in law had regard only to the non-parole period. 19Once the overall sentence period is accepted, and the relevant proportion for the non-parole period is identified in accordance with sentencing practice at the time of the offending, it is necessary to intervene to vary the non-parole period. The phrase "warranted in law" requires that "the entire body of legal rules that inform the exercise of a sentencing discretion, ie both statutory requirements and sentencing principles developed at common law" be applied: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [18] (Spigelman CJ, Latham J agreeing). Critically, in determining the non-parole period, that must require application of the principles applicable at the time of offending, as discussed above. It follows that the non-parole period fixed by the sentencing judge was not that which was warranted by law. 20The respondent raised a separate contention, based on the structure of the sentences imposed by the District Court. Thus, on each of the second and third counts, the applicant was sentenced to a fixed term of one year, with the first term (count 2) to commence on the date of sentencing, namely 18 February 2011, and the second (count 3) to commence six months later, on 18 August 2011. Thus, the second fixed term would expire on 17 August 2012. As a result, 18 months of the period of mandatory custody was to be attributed to two fixed term sentences. The third sentence (count 1) involved a non-parole period of one year, to commence on 18 February 2012 and expire on 17 February 2013. In the result, the actual non-parole period was 50% of the sentence imposed on count 1. However, it constituted only six months of the two year period of mandatory custody. The submissions of the respondent must be accepted in part: if the period of mandatory custody is to be reduced to less than 50% of the total sentence period, it will be necessary to interfere with at least the fixed term imposed in respect of count 3. 21The respondent's submission otherwise reveals a further error on the part of the sentencing judge. Pursuant to the Parole of Prisoners Act 1966 (NSW), as in force in 1982, a non-parole period was to be fixed in respect of the period of imprisonment being served by the offender at the date of sentencing, which might include an accumulation of earlier sentences and new sentences. The period was not fixed in respect of a specific sentence. Accordingly, the correct course in the present case, if dealt with in 1982, would have been to fix the various sentences of imprisonment imposed for the three counts and then specify a non-parole period which would commence on the date of imprisonment and continue regardless of the expiration of a particular fixed term sentence. The practical difficulty which is then apparent is that the sentence being imposed in 2011 is imposed in accordance with the powers conferred by the Sentencing Procedure Act . At the time of sentencing, the Act did not permit an aggregate non-parole period for all offences. 22Since 14 March 2011, a court sentencing an offender for more than one offence may impose "an aggregate sentence of imprisonment": Sentencing Procedure Act , s 53A(1). Although that power was not available to the sentencing judge, it is available to this Court for the purpose of re-sentencing the applicant. In exercising that power, the Court may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence: s 44(2A). The requirement not to set a balance of term exceeding one-third of the non-parole period, absent a finding of special circumstances, applies in relation to the aggregate sentence: s 44(2B). It is not necessary to indicate what the non-parole period would have been for each separate offence had separate sentences been imposed (s 44(2C)) but the Court is required to indicate to the offender, and make a record of, the sentence that would have been imposed for each offence had separate sentences been imposed: s 53A(2). 23The appropriate course is for the Court to set aside each of the sentences imposed by the sentencing judge and, in place of those sentences, impose an aggregate sentence of three years imprisonment with a non-parole period of 16 months. 24In taking that step, the finding of special circumstances made by the sentencing judge should be accepted as appropriate, for the reasons he gave. Further, the sentences which he imposed in relation to counts 2 and 3, being fixed terms of one year each to commence on 18 February 2011 and 18 August 2011 respectively are the sentences which would have been imposed if an aggregate sentence had not been imposed. In relation to count 1, the sentence of imprisonment which would otherwise have been imposed is a sentence of two years imprisonment to date from 18 February 2012, without setting a non-parole period in relation to that sentence. The appropriate non-parole period in relation to the aggregate sentence is 16 months to date from 18 February 2011. 25The Court should make the following orders: (1) Grant leave to appeal and set aside the sentences imposed by Berman DCJ on 18 February 2011. (2) Sentence the applicant in relation to the offences to which he pleaded guilty to an aggregate sentence of imprisonment for 3 years, comprising - (a) a non-parole period of 16 months to date from 18 February 2011 and to expire on 17 June 2012, and (b) a balance of term of 20 months, commencing on 18 June 2012 and expiring on 17 February 2014. (3) The Court directs the release of the applicant on parole on 17 June 2012. 26RS HULME J : I agree with the orders proposed by Basten JA and with his Honour's reasons. 27I acknowledge to having had some reservations about the result, proceeding as it does from an assumption that the overall sentence was appropriate. That sentence was, as Basten JA has observed, not challenged by the Crown. 28However, it must be accepted that the penalties provided by Parliament at the time of the Applicant's offending and which the Courts were obliged to follow were very much lighter than now and there are cases which support the view that a total of three years was within the proper exercise of Berman DCJ's sentencing discretion - see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32; Bradbery v R [2008] NSWCCA 93; (2008) 184 A Crim R 483; GRD v R [2009] NSWCCA 149. Arguably, some of the cases on s 61E referred to in the table attached to my reasons in PWB v R [2011] NSWCCA 84 lead to the same conclusion. 29SCHMIDT J : I agree with both Basten JA and RS Hulme J.