Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: KW v R (No 2) [2013] NSWCCA 84 Hearing dates: On the papers Decision date: 22 April 2013 Before: Simpson J at [1]; Harrison J at [10]; Adamson J at [11] Decision: (i) Order 3 made on 19 February 2013 set aside. (ii) In lieu thereof the applicant is sentenced as follows: Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 6 months, expiring on 6 October 2012; Counts (ii)-(iv): imprisonment for a fixed term of 1 year and 6 months, commencing on 7 October 2010 and expiring on 6 April 2012; Count (i): imprisonment for 5 years and 6 months, commencing on 7 April 2011 and expiring on 6 October 2016, with a non-parole period of 3 years and 5 months, expiring on 6 September 2014. Catchwords: CRIMINAL LAW - appeal - sentencing - sexual offences - error found in sentencing - applicant re-sentenced KW v R [2013] NSWCCA 31 - error in re-sentencing - aggregate sentence failed to give effect to finding of special circumstances - Crown application for variation of orders - Criminal Appeal Rules r 50C - orders made on 19 February 2013 varied - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Rules Cases Cited: KW v R [2013] NSWCCA 31 Category: Consequential orders Parties: KW (Applicant) Regina (Respondent) Representation: Counsel: J Stratton SC (Applicant) H Wilson (Respondent) Solicitors: Bannister Lawyers (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) File Number(s): 2009/148645 Publication restriction: Non publication of any information or material that may lead to the identification of the victims (s 15A Children (Criminal Proceedings) Act 1987) Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-03-09 00:00:00 Before: Hosking DCJ File Number(s): 2009/148645 Judgment 1On 19 February 2013 judgment was delivered in this Court in respect of an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 9 March 2011 in respect of five separate offences: KW v R [2013] NSWCCA 31. The relevant facts are there fully set out. Leave to appeal was granted, the appeal allowed and the applicant re-sentenced. The aggregate sentence then imposed was of a head sentence of 6 years and 6 months commencing on 7 April 2010 with a non-parole period of 5 years and 3 months which would expire on 6 July 2015. 2The Crown has drawn attention to a discrepancy in the judgment and the orders. At [43] the Court indicated its intention of giving the applicant the benefit of a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Section 44(2) provides: "The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 3A finding of special circumstances under the sub-section would have the effect of reducing, to below 75 per cent, the ratio that the non-parole period bears to the head sentence. Where sentencing in respect of multiple offences, this is sometimes done in respect of individual sentences in order to restore the statutory ratio to the overall result (the aggregate sentence). In other cases a finding of special circumstances is intended to have the effect of varying that ratio in respect of the aggregate sentence only. 4In this case, it was made plain that the intention was that the finding of special circumstances would be implemented in order to affect the aggregate non-parole period, rather than the non-parole periods imposed in respect of the individual offences. 5The Crown has pointed out that the aggregate sentence imposed does not give effect to the Court's stated intention. The non-parole period of 5 years and 3 months (63 months) is 81 per cent of the head sentence of 6 years and 6 months (78 months). 6An overall non-parole period in the statutory proportions in respect of a sentence of 6 years and 6 months would be 4 years and 10½ months (58.5 months). 7Pursuant to Rule 50C of the Criminal Appeal Rules the Court has power to set aside or vary an order in appropriate circumstances. Those circumstances have here been demonstrated to exist. 8In my opinion it is appropriate to vary the order previously made and to re-structure the sentences to achieve an aggregate non-parole period of 4 years and 5 months (53 months). It is neither necessary nor appropriate to vary either the aggregate head sentence, or the head sentences in respect of the individual offences. The object can be achieved by reducing the non-parole periods in respect of the sentences that are not subject to fixed terms, and to vary the accumulation that previously applied. 9Accordingly, I propose the following orders: (i) Order 3 made on 19 February 2013 set aside. (ii) In lieu thereof the applicant is sentenced as follows: Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 6 months, expiring on 6 October 2012; Counts (ii)-(iv): imprisonment for a fixed term of 1 year and 6 months, commencing on 7 October 2010 and expiring on 6 April 2012; Count (i): imprisonment for 5 years and 6 months, commencing on 7 April 2011 and expiring on 6 October 2016, with a non-parole period of 3 years and 5 months, expiring on 6 September 2014. The earliest date on which the applicant will be eligible for parole is 6 September 2014. 10HARRISON J: I agree with Simpson J. 11ADAMSON J: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2013