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Court of Criminal Appeal 19 December 1994

R v Glen

[1994] NSWCCA 1

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE

Citation: Glen v R [1994] NSWCCA 1
Court: Court of Criminal Appeal, NSW
Date: 19 December 1994
Judges: Grove J, Simpson J, Loveday AJ

Background

The appellant pleaded guilty in the Penrith District Court to a charge of sexual intercourse without consent, in discharge of a more serious charge on the same indictment. The plea was entered on the day it was first offered. The offence occurred on 12 October 1991, involving the appellant and a woman with whom he had an intermittent relationship spanning several years, with whom he shared a child.

The sentencing judge, Saunders DCJ, imposed a minimum term of two years penal servitude plus an additional term of two years. The victim gave evidence at the sentencing proceedings, expressing forgiveness and speaking positively of the appellant's character and his role as a father.

On appeal, the appellant challenged both the conviction (seeking to set aside the plea) and the sentence. He was unrepresented initially but retained senior counsel for the appeal proceedings.

  • Whether the plea of guilty should be set aside on the basis that the appellant did not understand he was admitting the absence of the complainant's consent
  • Whether the victim's post-offence forgiveness was a legitimate factor for the sentencing court to take into account
  • Whether the sentence of two years minimum term and two years additional term was within the appropriate range

Decision

Application to set aside the plea

The Court rejected the appellant's claim that he had not understood the nature of his plea. The appellant's own cross-examination proved fatal to this ground: when pressed, he expressly acknowledged that he knew he was pleading guilty to sexual intercourse without consent. Written instructions signed by the appellant before arraignment confirmed that he understood the charge and the absence of any guarantee that he would avoid imprisonment. The evidence of the solicitor who acted at trial was also accepted as credible and consistent with that understanding.

Victim forgiveness and its role in sentencing

Simpson J delivered a separate judgment addressing whether the victim's forgiving attitude should have been treated as a mitigating factor. Her Honour concluded it should not have been. Drawing on the parliamentary history behind the provision in the Crimes Act 1900 (NSW) making victims of domestic violence compellable witnesses (s 407AA), Simpson J reasoned that placing the burden on a victim to participate in the sentencing outcome is, or can be, harsh and unfair. Victims in relationships with the offender may be subject to pressure or threats, even where no such evidence exists in a particular case. Adopting a practice of treating victim forgiveness as a mitigating factor would create an obvious temptation for perpetrators of domestic violence to exert such pressure.

Sentence

Notwithstanding the concern about the relevance of the victim's attitude, the Court held that the sentence imposed was not outside the appropriate range. The appeal against sentence was dismissed on that basis. Grove J, with whom Loveday AJ agreed, found no error warranting intervention.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A plea of guilty will not be set aside merely because the appellant later claims he did not appreciate what he was admitting: where contemporaneous written instructions and the appellant's own cross-examination confirm understanding of the charge, that claim will be rejected.
  • The Court of Criminal Appeal confirmed that a victim's post-offence forgiveness is not a matter that should ordinarily influence the sentencing decision in cases involving domestic or intimate partner violence.
  • Simpson J reasoned that treating victim forgiveness as a mitigating factor creates systemic risks, because perpetrators may pressure victims into expressing forgiveness, even where no such pressure is demonstrated on the facts of the particular case.
  • Upholding the sentence, the Court found that a two-year minimum term plus a two-year additional term for sexual intercourse without consent was within the appropriate range on these facts, notwithstanding the prior relatively minor criminal history and the intermittent relationship between the parties.
  • The decision illustrates the limits of using evidence called by an accused at a sentencing hearing: the victim's favourable testimony did not translate into a reduction in the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 407AA

Cases
- Reg v Chiron [1980] 1 NSWLR 218