Ingham v R [2014] NSWCCA 123

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ingham v R [2014] NSWCCA 123 Hearing dates: 5/05/2014 Decision date: 10 July 2014 Before: Basten JA at [1]; Fullerton J at [2]; R A Hulme J at [48] Decision: Allow the appeal. The sentences imposed in the District Court on 19 September 2008 are quashed. In lieu, the following sentences are imposed: For count 3 (an offence contrary to s 61M(2) of the Crimes Act committed against CBS) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010. For count 8 (an offence contrary to s 61M(2) of the Crimes Act committed against JAW) a non-parole period of 3 years to commence on 20 October 2006 and to expire on 19 October 2009, with an additional term of 1 year to commence on 20 October 2009 and to expire on 19 October 2010. For count 9 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 9 years to commence on 20 October 2006 and to expire on 19 October 2015, with an additional term of 4 years to commence on 20 October 2015 and to expire on 19 October 2019. For count 10 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019. For count 11 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019. For count 12 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 7 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2016, with an additional term of 2 years and 6 months to commence on 20 October 2016 and to expire on 19 April 2019. For count 7 (an offence contrary to s 66A of the Crimes Act committed against JAW) a non-parole period of 6 years to commence on 20 October 2010 and to expire on 19 October 2016, with an additional term of 2 years to commence on 20 October 2016 and to expire on 19 October 2018. For count 5 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 9 years to commence on 20 October 2010 and to expire on 19 October 2019, with an additional term of 4 years to commence on 20 October 2019 and to expire on 19 October 2023. For count 2 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022. For count 4 (an offence contrary to s 66A of the Crimes Act committed against CBS) a non-parole period of 7 years and 6 months to commence on 20 April 2012 and to expire on 19 October 2019, with an additional term of 2 years and 6 months to commence on 20 October 2019 and to expire on 19 April 2022. For count 6 (an offence contrary to s 66B of the Crimes Act committed against CBS) a non-parole period of 6 years to commence on 20 October 2013 and to expire on 19 October 2019, with an additional term of 2 years to commence on 20 October 2019 and to expire on 19 October 2021. The total effective term of imprisonment is 17 years commencing on 20 October 2006 and comprised of a non-parole period of 13 years expiring on 19 October 2019 and a balance of term of 4 years expiring on 19 October 2023. The earliest date the applicant will be eligible for release is 19 October 2019. Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sexual assault against a child under the age of 10 - multiple counts - multiple victims - statutory ratio between non-parole period and balance of term - whether lesser sentence warranted at law - relevance of post offence conduct and custodial conditions - re-sentence Legislation Cited: Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2003 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ali v R [2014] NSWCCA 45 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Carlton v R [2014] NSWCCA 14 Doe v R [2013] NSW CCA 248 EK v R [2010] NSWCCA 199; 79 NSWLR 740, 208 A Crim R 157 Filippou v R [2013] NSWCCA 92 Grant v R [2014] NSWCCA 67 Ingham v R [2011] NSWCCA 88 Jones v R [2012] NSWCCA 262 Montero v R [2013] NSWCCA 214 Muldrock v R [2011] HCA 39, (2011) 244 CLR 120 R v Burke [2002] NSWCCA 353 R v Douar [2005] NSWCCA 455; 159 A Crim R 154 R v Gavel [2014] NSWCCA 56 R v Nguyen [2013] NSWCCA 195 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Smith [2011] NSWCCA 163 R v Way [2004] NSWCCA 131; 60 NSWLR 168 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 RJA v R [2014] NSWCCA 89 RLS v R [2012] NSWCCA 236 Simpson v R [2014] NSWCCA 23 ZZ v R [2013] NSWCCA 83 Category: Principal judgment Parties: Heath Jarrett Ingham (Appellant) The Crown (Respondent) Representation: Counsel: I McLachlan (Appellant) R Herps (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2007/12182 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-09-19 00:00:00 Before: Geraghty DCJ File Number(s): DC 2007/21/1104