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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: R v Glen [1994] NSWCCA 1
Court: Court of Criminal Appeal
Date: 19 December 1994
Judges: Grove J at [1]; Simpson J at [19]; Loveday AJ at [29]

Background

The appellant had been in an intermittent relationship with the complainant for approximately two and a half years. They had a daughter together, and the appellant was distressed about access to that child. The offence of sexual intercourse without consent occurred on 12 October 1991, in the front yard of a residential property, in circumstances where the appellant was behaving hysterically and sexually aggressively. His mother witnessed the incident.

In the Penrith District Court, the Crown accepted the appellant's guilty plea to sexual intercourse without consent in discharge of an indictment that also contained a more serious charge. The sentencing judge imposed two years penal servitude with an additional term of two years.

The appellant subsequently retained new counsel and brought an appeal against both conviction and sentence. He argued that he had not understood the full import of his plea, and that the sentence was too severe given the circumstances of the relationship and the complainant's apparent forgiveness.

Legal Issues

  • Whether the guilty plea should be set aside on the basis that the appellant did not appreciate he was acknowledging the complainant's absence of consent
  • Whether the appellant's concerns about losing access to his daughter vitiated the voluntariness of his plea
  • Whether the sentencing judge gave adequate weight to the appellant's limited prior record, emotional background, expressed remorse, and the complainant's forgiving attitude
  • Whether a complainant's forgiveness is a relevant factor in sentencing for domestic violence offences

Decision

Ground 1: Setting aside the plea of guilty

The appellant's claim that he did not understand he was admitting to the absence of consent was rejected as insincere. Written instructions given by the appellant to his solicitor prior to arraignment, together with the solicitor's credible evidence and the appellant's own inconsistent testimony in cross-examination, demonstrated that the plea was informed and voluntary (at [9]-[11]). The appellant's concerns about access to his daughter may have contributed to his decision to plead, but those concerns did not erode the qualities that made his confession valid, and they provided no basis for setting it aside (at [11]).

Ground 2: Adequacy of the sentence

The Court found no error of consequence in the sentencing judge's remarks. The sentencing judge had expressly considered the appellant's limited prior record, the emotional background, his expressed remorse, and the complainant's attitude (at [12]-[13]). A relationship between the parties does not diminish a woman's entitlement to engage in sexual intercourse only upon her consent (at [14]). The offence was serious and committed in a place open to public view (at [15]). Although the sentencing judge made a factual error in concluding the parties had not resumed sexual relations, that error did not vitiate the sentence (at [17]). The total term was within the appropriate range (at [16]).

Ground 3: Relevance of victim's forgiveness (Simpson J)

Simpson J delivered additional reasons addressing the weight to be given to victim forgiveness in domestic violence cases. Her Honour accepted that a victim's forgiving attitude can, in some contexts, be a mitigating factor in sentencing. However, she concluded that exceptional caution is warranted in domestic violence cases. The history of such offences, in which victims frequently forgive contrary to their own interests, has too often enabled offenders to commit crimes with relative impunity (at [21]). General deterrence requires courts to signal that victims of domestic violence will receive the full protection of the law regardless of post-offence forgiveness (at [22]). Further, legislative reforms since 1982, including the introduction of s 407AA of the Crimes Act 1900 (NSW), made clear the legislature's intention that domestic violence offences be treated with equal seriousness to other violent offences (at [24]). The complainant's forgiving attitude was therefore not a matter that should have influenced the sentencing decision (at [27]).

Orders Made

  • Appeal dismissed
  • Conviction confirmed
  • Leave to appeal against sentence granted but appeal dismissed
  • Time to count

Key Takeaways

  • A plea of guilty will not be set aside merely because the appellant later claims he misunderstood its consequences, where credible evidence from the instructing solicitor and the appellant's own written instructions support the voluntariness and accuracy of the plea (at [9]-[11]).

  • Concerns about collateral consequences, such as loss of access to a child, may contribute to a decision to plead guilty without rendering that plea involuntary or tainted (at [11]).

  • A prior sexual relationship between an offender and a complainant is not a mitigating circumstance that diminishes the seriousness of sexual intercourse without consent; a woman retains the full entitlement to withhold consent regardless of the nature of the relationship (at [14]).

  • In domestic violence cases, exceptional caution should be exercised before according weight to a victim's expressed forgiveness in the sentencing process; the importance of general deterrence in such cases overrides any minor relevance such evidence might otherwise carry (at [22]-[23]).

  • An error of fact made by a sentencing judge does not automatically vitiate the sentence imposed, provided the Court of Criminal Appeal is satisfied the error did not affect the outcome and the sentence remained within an appropriate range (at [17]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), 407AA

Cases
- Reg v Chiron [1980] 1 NSWLR 218