Dorsett v R [2024] NSWCCA 192

Dorsett v R [2024] NSWCCA 192 · Read the judgment on AustLII

Catchwords: Sentencing – references to range of seriousness

In this case, the Court of Criminal Appeal (‘CCA’) has attempted to clarify whether or not it is appropriate (or necessary) to sentence by reference to a notional range of objective seriousness – that is, assessing a particular case by comparison to a hypothetical middle of the range of objective seriousness. The Court has held that 9t is not essential to sentence by reference to such a range, but nor will it (usually) be an error to do so. That said, in cases in which a Standard Non-Parole Period (‘SNPP’) applies, it will usually be desirable.

The applicant was sentenced for a range of sexual offences committed against four children (aged between 12 and 15) over an 18-month period – eight counts in all (plus another on a Form 1). He was sentenced to an aggregate sentence of 10 years, with a non-parole period of 5 years. He appealed on grounds including that the judge had failed to give sufficient (or appropriate) separate consideration to each of the offences which made up the aggregate sentence.

During the original sentencing proceedings, the sentencing judge had raised that only one of the counts had a SNPP. In that connection, the sentencing judge expressed his understanding of the law to be that it would be ‘inappropriate’ in respect of offences that do not carry an SNPP to assess the seriousness by reference to a ‘mid-range of seriousness’. This ultimately formed part of the applicant’s argument in relation to the sentencing judge’s failure to separately consider each of the offences.

N Adams J (with whom Harrison CJ at CL and Dhanji J agreed) accepted that there have been instances where the CCA has observed that it is unnecessary and, in some cases, unhelpful to assess the objective seriousness of an offence by reference to a notional range. Against that background, her Honour considered it necessary to clarify the question of whether it is ‘inappropriate’ to do so, and / or ‘not even necessary’ for an offence that does have an SNPP (at [145]).

It is an important part of the sentencing exercise to assess the objective seriousness of an offence. The practice of doing so by reference to a notional range commenced after the introduction of the SNPP regime in 2003, because it was thought to be required for SNPP offences. A general practice emerged adopting that approach for all offences. Subsequent High Court authority and amendment to the sentencing legislation clarified the position, such that it is no longer a requirement to assess the objective seriousness of a SNPP offence by reference to a notional range. Nevertheless, it is important to make the necessary assessment (at [146]-[149]). But just because it is not mandatory to make the assessment by reference to a notional range does not mean it is not helpful to do so; in that connection her Honour endorsed earlier authority observing that it will usually be ‘desirable’ to judge an offence by reference to the range when sentencing for an offence that carries a SNPP, because it is only if the case falls in or above the so-called ‘middle of the range of objective seriousness’ that the SNPP applies (at [150]).

As for offences with no SNPP, it is well established that it is not essential to assess an offence by reference to a notional range; whilst adopting that approach is not an error, a failure to do so does not indicate error (at [151]). Some of the descriptors, such as ‘low end of the middle of the range’ or ‘just below of above the midpoint’ have been deprecated (see [152]), but there has also been an acknowledgement that there will be cases when placing an offence on a range may be helpful, notwithstanding that some of the descriptors are vague (at [152]-[153]).

It is to be accepted that the CCA has stated both that when sentencing for an offence that does not have a SNPP it is not an error to fail to assess the objective seriousness by reference to a notional range, and that it can be unhelpful to do so. But a review of the authorities does not reveal a principle that there is no need to make relative findings of objective seriousness when sentencing for multiple offences or victims, where the objective seriousness of each offence differs. In such cases it often will be necessary, even in very broad to terms, to identify the factors which make some offences more or less serious than others (assuming that is indeed the case) (at [155]).

For a range of reasons not discussed in this summary, the judge in this case was found to have failed to make the separate assessment necessary; the appeal was allowed and the applicant was resentenced to 8 years with a non-parole period of 4 years and 9 months.