CPW v R [2009] NSWCCA 105

CPW v R [2009] NSWCCA 105

The appeal was allowed in part because the sentencing judge failed, for the old offences, to apply the 1980s sentencing practice of fixing non-parole periods commonly between one third and one half of the head sentence, and failed to apply the approach in Simpson and Close to the accumulation of sentences, producing an extraordinary disproportion where total non-parole periods exceeded 93 per cent of the total head sentences. The grounds based on totality, manifest excess, and general special circumstances were otherwise rejected, but resentencing was required to adjust the non-parole structure and overall sentence.

Jurisdiction
Australia
Judgment Date
23 April 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal against sentence allowed in part; some sentences confirmed and others quashed and replaced.
Legal Topics
['child Sexual Assault' 'multiple Offences' 'old Offences' 'sentencing Practice at Time of Offence' 'non Parole Periods' 'special Circumstances' 'totality' 'cumulative and Concurrent Sentences']
['criminal Law' 'sentencing'] ['child Sexual Assault' 'multiple Offences' 'old Offences' 'sentencing Practice at Time of Offence' 'non Parole Periods' 'special Circumstances' 'totality' 'cumulative and Concurrent Sentences']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge failed to apply the sentencing law and practice applicable at the time of the offences committed between 1980 and 1986.' 'Whether the sentencing judge erred in applying the principle of totality to multiple child sexual assault offences.' 'Whether the overall sentence was manifestly excessive.' 'Whether special circumstances should have been found in fixing non-parole periods.' 'Whether the sentencing judge failed to maintain an appropriate overall relationship between total non-parole periods and total head sentences under s 44(2) of the Crimes (Sentencing Procedure) Act.']

Ratio Decidendi

The appeal was allowed in part because the sentencing judge failed, for the old offences, to apply the 1980s sentencing practice of fixing non-parole periods commonly between one third and one half of the head sentence, and failed to apply the approach in Simpson and Close to the accumulation of sentences, producing an extraordinary disproportion where total non-parole periods exceeded 93 per cent of the total head sentences. The grounds based on totality, manifest excess, and general special circumstances were otherwise rejected, but resentencing was required to adjust the non-parole structure and overall sentence.

Court Disposition

Leave to appeal granted; appeal against sentence allowed in part; some sentences confirmed and others quashed and replaced.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed in part.' 'Confirm the sentences for offences 1, 2 and 4.' 'Quash the sentences for offences 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13.' 'For offence 3, impose a fixed term of imprisonment of six months commencing on 14 February 2009 and expiring on 13 August...