R v Obbens [2022] NSWCCA 109

R v Obbens [2022] NSWCCA 109 · Read the judgment on AustLII

Catchwords: Sentencing – delay – where new offending occurred during a period which already resulted in a sentence

In this judgment the Court of Criminal Appeal (‘CCA’) has said that the focus when sentencing an offender for fresh sentences which overlap a stale sentence imposed some time ago, the focus is on the totality of the sentence at the time it is imposed. In other words, the question is what the appropriate sentence is now, having regard to the sentence already imposed and its total effect, rather than what the original sentence ought to have been.

The respondent (this was a Crown appeal) was sentenced in 2022 for an indecent assault, with a further indecent assault on a Form 1, both dating back to 1989. He was a dormitory master at a Catholic school and indecently assaulted a 12- or 13-year-old boarder. For this offending a Community Correction Order was imposed. As the Court observed (Hamill and Dhanji JJ, with whom Basten AJA agreed, offering brief additional remarks), without being prescriptive, ordinarily these offences would be expected to have resulted in a full-time custodial sentence of some significance (at [10]).

But a significant factor behind the otherwise-lenient sentence was that the offender had, in 2016, already been sentenced for three similar offences, also occurring between 1987 and 1989. In late 2016 he had been sentenced by a different judge to a sentence of 3 years, with a non-parole period of 18 months. In other words, he served a sentence of imprisonment and seems to have been released at some point in 2018.

The parties submitted, both at first instance and on appeal, that one question to be addressed in considering the totality principle in sentencing this offender was whether the sentence imposed could encompass the whole of the criminality under consideration (that is, both the matters for sentence in 2022, as well as those sentenced in 2016).

Importantly, at times, the submissions of the parties seemed to be addressed to the question of whether the sentencing judge in 2016 would have imposed a longer sentence if he had been aware of the sentences which were for sentence in 2022. However, the Court observed that this was not the correct approach, and may have arisen from a misapprehension of remarks made in cases including R v Cattell [2019] NSWCCA 297 (‘Cattell’). The real question for a judge faced with this kind of sentencing exercise is whether the total sentencing outcome (that is, the 3-year full-time sentence imposed in 2016, taken together with the 18-month Community Corrections Order imposed in 2022) could encompass the whole of the criminality (at [18]).

The determination of the sentence for the single offence in the present case gave rise to an aspect of the totality principle which arises when there is a delay in the prosecution of multiple offences and the fragmentation of the sentencing proceedings. In Cattell it was observed that often delay in reporting and prosecution of sexual offending will have meant that the offender continued to enjoy the benefit of a place in the community to which (usually) he or she was not entitled – but this case was different. The delay here did not result in an additional a period where the offender went about life free from opprobrium. And the bringing of a subsequent prosecution, with the prospect of a return to custody, is an additional stress and disruption that would not have been suffered if all the offending had been dealt with together (at [20]).

Instead of Cattell, the Court held that the case resonated with the principles which had been set out in R v Todd [1982] 2 NSWLR 517 (‘Todd’) and subsequently adopted by the High Court in Mill v The Queen (1988) 166 CLR 59. In Todd (which dealt with a delay caused by the offender serving out an interstate sentence of imprisonment), Street CJ observed that where there had been a lengthy postponement of sentence, fairness requires weight be given to the progress of the offender towards rehabilitation, and the fact the offender has been left in a state of uncertain suspense. That may call for a ‘considerable measure of understanding of flexibility of approach’ and ‘at times this can require what might otherwise be a quite undue degree of leniency [to be] extended to the prisoner’ (at [21]-[22] of the present judgment).

Here, the real question was whether, having regard to the option of a Community Correction Order, the only appropriate sentence was one of imprisonment (at [25]). Basten AJA pointed out in his additional reasons that the Crown had presented a clear and principled argument for a further custodial sentence (at [4]), in this case the overall effect of the sentence was not manifestly inadequate.

It follows that practitioners grappling with a sentence for a matter which overlaps with old offending should be looking to Todd and Mill, and making an argument based on the totality of sentences when viewed prospectively (as at the date the fresh sentence is imposed) not retrospectively (as at the date when the original sentences were imposed).

It was not mentioned in this judgment, but one additional factor which presumably resulted in the seemingly-large gulf between the full-time custodial sentence sought by the Crown, and the Community Correction Order sought by the offender was the fact that, because of Crimes (Sentencing Procedure) Act 1999 (NSW) s 67(1), an Intensive Correction Order is not available for, inter alia, prescribed sexual offences.