Shaw v R [2010] NSWCCA 23 | Case summary

3 There was a Form 1 which contained 3 offences of aggravated indecent assault, 8 offences of sexual intercourse with a person of or above the age of 10 years and under the age of 16 years and 2 offences of using a child for pornographic purposes. It would seem, although this is not clear, that the Form 1 matters were probably taken into account in relation to counts 9 to 13 inclusive. 4 The offences were committed between the period 14 August 2001 and 18 March 2002. The sentences were not imposed until October 2008. This delay was due to the fact that the applicant had been in custody in Queensland for other offences, the sentences for which and their significance when he was sentenced for their present offences, being an issue in this application. 5 The applicant seeks to raise 2 grounds of appeal neither of which require a recitation of the facts and circumstances of the various offences. It is sufficient to indicate that the offences involved criminality of a high order and were concerned with the sexual exploitation of a young girl aged 14 years. At the time the applicant was 46 years of age. He made his initial contact with his victim over the internet thereafter making arrangements to meet her and engage in sexual activity. 6 At the time of sentencing the applicant had a record of prior convictions. In 1988 he was convicted of an offence of possessing a prohibited article and fined. In September 2004 in Queensland he was convicted and sentenced for 2 offences of maintaining a sexual relationship with a child under 12 years, 11 offences of indecent treatment of a child under 16 years, in circumstances of aggravation, an offence of distributing obscene images, 3 offences of copying child abuse computer games and an offence of possession of a child abuse computer game, all of which were committed between 1 January 1998 and 3 August 2002. 7 In respect of those offences the applicant was sentenced to imprisonment for 7 years with a recommendation for his release to parole after 2 years and 6 months, ie on 3 March 2005. Pre sentence custody from 4 September 2002 to the date of sentence was deemed to have been served under the sentence. The applicant was released to parole on 17 April 2007 following which he was extradited to New South Wales where he remained in custody until the sentence proceedings for the present offences. 8 There are 2 grounds of appeal. The first ground complains that the sentencing judge erred in failing, or failing adequately, to consider whether lesser sentences should be imposed having regard to the assistance the applicant provided or had undertaken to provide to the authorities. 9 The second ground complains of a failure to take into account a period of pre sentence custody amounting to 12 days. 10 When sentencing the applicant his Honour accepted that he was required to have regard to the sentence imposed for the Queensland offences being mindful of the principles provided by the High Court in Mill v The Queen (1988) 166 CLR 59. 11 His Honour said: "Now that is a principle that where people have not been dealt with at the same time for reasonably contemporary offences then the court has to look at it overall and take various factors into account and not just make the subsequent sentence totally cumulative to the first sentence because state boundaries are a factor to be taken into account." 12 His Honour considered, so far as the material was before him, the circumstances of the Queensland offences and the sentences which were imposed. His Honour noted that the Queensland judge who sentenced the applicant had imposed a head sentence of 7 years and a non-parole period of 2½ years. No doubt mindful that this appeared to be a lenient sentence his Honour remarked: "Maybe that was because of the assistance offered at the time." Inherent in this remark is an understanding that the applicant had offered relevant assistance. 13 Notwithstanding this remark there is no indication from his Honour's remarks to suggest that his Honour gave consideration to whether lesser sentences should be imposed in New South Wales because of the fact that the applicant had provided or undertaken to provide assistance. Section 23 of the Crimes (Sentencing Procedure) Act 1999 provides that the court has power to reduce penalties having regard to the assistance provided or offered by an offender and accordingly if the applicant had provided assistance to the authorities his Honour was required to consider whether this could justify a reduction in the penalty to be imposed. 14 Decisions of this Court and of other courts make plain that a sentencing court should consider assistance provided by an offender not only in respect of the offences for which he is being sentenced but for other offences which may have been committed by others: R v Many (1990) 51 A Crim R 54. Furthermore, assistance provided or undertaken to be provided to authorities interstate does not make it irrelevant to sentence proceedings in this State: R v Quinn [2002] NSWCCA 508 at [9] per Sperling J. Even assistance provided to authorities in other countries may be taken into account in sentencing for offences committed in Australia: see R v De Groot van Embden [2003] NSWCCA 156; 140 A Crim R 403; Kauwenberghs v R [2008] NSWCCA 98; R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151; R v Huang (1995) 78 A Crim R 111. 15 When sentencing for the present offences it was accepted that the applicant had provided assistance to the Queensland police by nominating a named person as having provided his daughter to the applicant for his criminal purposes. An extract from the remarks on sentence of the Queensland judge was before the New South Wales court. In his remarks the sentencing judge in Queensland said: "What, of course, is important so far as this case is concerned is your cooperation. You have pleaded guilty, and you notified the authorities at an early stage that you were going to plead guilty." 16 During the course of submissions with respect to the sentence for the present offences there was a discussion about the issue of assistance. Counsel for the applicant said to his Honour: "I can indicate to your Honour that it will not be my submission that Mr Shaw has not received the benefit of the assistance he has given in Queensland, that I accept was factored into that Queensland sentence." 17 Later in his submissions he said: "This is a case where it's not my submission that he gets another discount for the assistance in Queensland but it remains the fact that he has been of assistance in what was a very serious matter in Queensland, he has been of assistance to the authorities and whilst he's not entitled to another Ellis or any other kind of discount, he is entitled to have that assistance and that cooperation continue to be recognised." 18 And, later: "Again, your Honour, not another distinct discount but a recognition of what has happened and your Honour has the undertaking, the statement the two letters from the Crown Prosecutor, your Honour I can simply complete that record, I don't know the outcome of the proceedings but Mr Shaw has given evidence before a jury in Queensland." 19 The latter was a reference to correspondence which reveals that the applicant had indicated that he was prepared to give evidence in relation to the "other person" although because the trial was adjourned whether in fact the applicant gave evidence is not apparent. 20 From these remarks it is plain that counsel for the applicant accepted at the sentence hearing that the sentence imposed in Queensland reflected an appropriate discount for assistance to the authorities. It was accepted that the extent of any available discount was exhausted by the sentences which had been imposed. All that counsel was indicating by his ultimate comment was that the fact that the applicant was a person who was prepared to give assistance should be included amongst his personal characteristics when his Honour came to sentence for the New South Wales offences. 21 A similar problem was considered by the Victorian Court of Appeal in R v Allan John Quinn [2005] VSCA 100. In that case the applicant was to be sentenced in Victoria, having been sentenced for like offences committed during substantially the same period in New South Wales and Queensland. The Victorian Court of Appeal concluded that because appropriate recognition had not previously been given for the appellant's assistance when sentenced in the other States regard should have been had to that matter when the appellant was being sentenced in Victoria. Vincent JA put it shortly in these terms at [21]: "Were it not for the fact that I agree with Chernov JA that at no point in the sentencing processes, to which the appellant has been subject, was proper regard given to the important assistance provided to the authorities in Queensland, I would unhesitatingly express the view that this appeal should be rejected. However, by reason of the matters to which he has adverted, and specifically that level of assistance, I also agree." 22 Chernov JA said at [12]-[13]: "In a case such as the present, where a number of like offences have been committed by the offender here and in another jurisdiction, and he or she has been previously sentenced in relation to the interstate offences, the basis on which the offender is to be subsequently sentenced in this jurisdiction has been authoritatively stated in Mill v The Queen (1988) 166 CLR 59 at 66-67. Their Honours in that case made it clear that, in circumstances such as the present, the correct approach is to act on the basis that all the offences were committed in one jurisdiction and that the offender is to be sentenced for them at the one time. The sentencing court must then consider whether the sentence that is proposed to be imposed by it, when notionally combined with the earlier sentence, would offend the principle of totality, having regard to the offender's overall criminality and taking into account mitigating factors. During the hearing of the appeal before us it became apparent that a critical issue was whether the appellant's considerable co-operation with, and assistance to, the Queensland authorities had been given appropriate recognition by the sentencing courts so as to produce a notional total sentence that did not offend the principle of totality, or was not manifestly excessive. It seems plain enough that the appellant was not given a sentencing discount for this mitigating factor when he was sentenced in Queensland. That is understandable because, at the time of sentence there, the extent and perhaps even the fact of his assistance were not appreciated." 23 There can be no doubt that in the present case the applicant was entitled to have the sentencing judge consider and provide, if appropriate, for a discount on the sentence in New South Wales for assistance provided to the Queensland authorities. However, counsel did not invite his Honour to incorporate such a discount and accepted that the sentencing process in Queensland had appropriately incorporated the discount to which the applicant was entitled. In that event no error has been demonstrated. In any event it is apparent that when imposing the New South Wales sentence his Honour gave careful consideration to the applicant's overall criminality. In recognition of the principle of totality his Honour, although providing a non-parole period of 9 years with a total sentence of 11 years and 3 months, by reason of the date upon which the sentence commenced has determined that the applicant will effectively serve only 2 years and 3 months in full time custody subsequent to this release to parole in Queensland (17 April 2007) and a further period of slightly in excess of 2 years on parole. 24 His Honour provided that the sentence would be backdated to commence on 2 December 2004. As it happens the applicant was taken into custody on 2 August 2002, although released to bail on 13 August 2002. Accordingly although not directly relevant, other than to the Queensland sentence it was submitted that his Honour erred and the applicant should as his Honour intended now be given credit for the additional days for which he was in custody. That period was agreed before this Court to be a period of 12 days. 25 It is apparent that his Honour intended that the sentences which he imposed should reflect the period for which the applicant had been in custody. Whether the correct position was initially made plain to him counsel should have identified in the course of his Honour's remarks that the assumption which he made was not correct enabling his Honour an opportunity to have provided appropriately for the total period which had already been served in custody. To this extent I am satisfied that this Court should intervene and resentence the applicant. 26 The orders I propose are:

Shaw v R

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