Exit Distraction Free Reading Mode
In this case, the Court of Appeal granted leave to appeal against sentences imposed in respect of serious sexual offending. The Court held that the sentencing judge erred in taking into account uncharged acts which should not have been included in the agreed Statement of Facts and in assuming that a serious violent offence declaration was automatically attracted on account of the cumulative sentence being 12 years. In considering whether a different sentence should have been imposed, the Court of Appeal held that the appellant should be given the opportunity to withdraw his appeal in circumstances where a higher sentence might be imposed.
Sofronoff P and Fraser and Philippides JJA
4 December 2020
The applicant applied for leave to appeal against his sentences.  He plead guilty to 20 sexual offences against his daughter and two granddaughters which had occurred over three periods of time between 1985 and 2017. –. Circumstances of aggravation had been alleged in respect of the majority of the 20 offences. . In respect of the first indictment (which concerned five counts) the sentencing judge imposed sentences which amounted to a cumulative sentence of nine years. . The second indictment (which concerned 15 counts) attracted sentences which accumulated to a sentence of 12 years. .
Serious Violent Offender Declaration
The Court of Appeal first considered whether the sentence attracted a serious violent offence declaration (SVO). The learned trial judge had considered that once the sentences accumulated to more than ten years, there must automatically be an SVO declaration. . The effect of such an order would be that the appellant’s parole eligibility date was postponed until 80 percent of the sentence had been served. . However, his Honour had not made such a declaration and there was no individual offence for which the applicant had been sentenced to 10 years or more for the purposes of s 161A of the Penalties and Sentences Act 1992 (“PSA”). .
The Court of Appeal considered that whilst his Honour had thought that the total term of 12 years’ imprisonment engaged the PSA provisions and therefore required the appellant to serve 80 per cent of his term before becoming eligible for parole, that was ultimately not the effect of the orders as made. Section 161A of the PSA engages the Corrective Services Act 2006 parole postponement provisions when an offender is sentenced to 10 years or more or when a declaration is made that an offence is an SVO. Importantly, s 161C PSA provides for the same effect when an offender is sentenced to multiple terms of imprisonment which, cumulatively, result in 10 years or more. Critically, the provision operates in that way only if the offences are all offences listed in Sch 1 of the PSA. In this case, the appellant was sentenced to an actual cumulative total for all of offences of 12 years. However, the cumulative total for the Sch 1 offences was only six years and six months. Therefore, notwithstanding the applicant’s 12 years’ imprisonment, his parole eligibility date was not postponed. Therefore, the Court of Appeal considered that the sentences had been imposed under a misconception of the law. . The Court noted that, in this case, given the multiple sexual offences and the accumulation of sentences, the sentencing judge needed to have fixed a parole eligibility date pursuant to s 160 of the Act. .
The Court considered the contention that the sentencing judge had impermissibly taken into account certain uncharged acts. . The applicant pointed to the sentencing judge’s reference to the fact the offences were “not isolated incidents, but part of a more protracted abuse”. . The Court accepted the applicant’s submissions on this point, and his reliance on the principles set out in R v D  1 Qd R 363, 403–404. The Court concluded that the uncharged acts should not have appeared in the agreed Statement of Facts at all. Their Honours considered that it need not be decided in the affirmative that the taking into account of the uncharged acts actually resulted in a higher sentence. Instead, it was enough that there was a possibility that had occurred. . On this basis, leave to appeal was granted. .
Whether a different sentence should have been opposed
The Court set out the nature of the three periods of offending and, in detail, the sentencing principles set out in s 9 of the PSA. –. Their Honours then considered the relevance of the comparative authorities relied on by the applicant. . The Court, in setting out the facts of each case, noted that there had been “persistent reliance” on cases which pre-dated amendments to legislation and the sentencing principles and to the increase in the relevant penalty. .
Having considered the seriousness of the offending, the Court noted that Gibbs CJ in Neal v The Queen (1982) 149 CLR 305, 308 said that where the Court of Appeal intends to grant leave to appeal, but intends to increase a sentence “it is right to insist on strict compliance with formality”. Their Honours noted that such formality requires the successful applicant be given an opportunity to reconsider their appeal. The Court considered that this case was “special” on account of the fact the respondent had made it clear in his outline of submissions that a 12-year sentence would be submitted. Therefore, it was said that the applicant could not have been under any misunderstanding as to the possible outcome. Notably, the Court observed that since Neal in 1982, there had not been a case in which the sentence was increased without allowing the applicant to reconsider the appeal. . Accordingly, leave to appeal was granted with the disposition of the appeal adjourned for a date to be fixed. .