R v RUSHBY

Citation: [1999] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 24 May 1999
Judges: Barr J; McInerney AJ

Background

The applicant and a younger co-offender were involved in a serious sexual assault on a 13-year-old girl in a remote bushland location north of Colo, NSW. After a car they had stolen broke down, the two discussed raping the victim, dragged her into bushland, assaulted her, and then tied her to a tree before leaving her in a remote area. The applicant was 18 years and 10 months old at the time; the co-offender was 16 years and three months old.

The applicant was sentenced by Judge Christie DCJ in the District Court to eight years' penal servitude (minimum term of five years, additional term of three years) for sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act. The co-offender was separately sentenced by a different judge, Judge Graham, to six years' penal servitude (minimum term of three years, additional term of three years).

The applicant sought leave to appeal against his sentence, arguing that the disparity between the two sentences gave rise to a justifiable sense of grievance, and separately arguing that the sentence was outside the proper range.

Legal Issues

• Whether the difference in sentences between the applicant and his co-offender gave rise to a justifiable sense of grievance warranting appellate intervention.
• Whether the sentence imposed on the applicant was outside the proper range of sentencing discretion, having regard to his subjective features including his early guilty plea, cooperation with police, admissions, and offer to give evidence against the co-offender.

Decision

On the disparity ground, the Court found that the two sentencing judges had made materially inconsistent findings of fact about the relative roles of the offenders. Judge Christie found that the co-offender was the "chief perpetrator" and that the applicant's conduct was not quite as aggressive. Judge Graham, however, was not satisfied the co-offender was the instigator and treated the two offenders' roles as roughly equal. Because the court could not choose between the competing factual findings made by two different judges, this inconsistency created a difficulty for the applicant but could not, of itself, ground a successful parity argument.

The Court noted that the applicant had significant subjective features in his favour, including early guilty plea, full admissions, genuine remorse, and a meaningful offer to assist police, which had likely contributed to the co-offender's own guilty plea (sparing the victim from having to give evidence). The co-offender, however, had a worse criminal history and had been serving a control order at the time of the offence. The Court was not persuaded that these factors, taken together, established a justifiable sense of grievance when the two sentences were compared.

On the second ground, the Court found the sentence was high but not outside the proper range of sentencing discretion. Referencing the Court of Criminal Appeal's earlier decision in R v Lewis, the Court observed that an eight-year total sentence for a single offence under s 61J had previously been upheld in circumstances at least as serious. The four statutory aggravating features present (actual bodily harm, threats, offence committed in company, and victim under 16 years) made this a very serious example of the offence. Statistical sentencing data showed the sentence was at the higher end but did not, in the Court's view, demonstrate that it exceeded the permissible range.

McInerney AJ expressed considerable concern about the practice of different District Court judges sentencing co-offenders separately, noting that the Court of Criminal Appeal had commented unfavourably on this practice on multiple occasions but that it persisted. His Honour ultimately agreed with the orders proposed by Barr J.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

• A justifiable sense of grievance arising from sentencing disparity becomes difficult to establish where the two sentencing judges have made inconsistent findings of fact about relative culpability, as the Court of Criminal Appeal cannot simply choose between those competing findings.
• The Court of Criminal Appeal reiterated, in strong terms, the desirability that a single judge sentence all co-offenders involved in a common offence. The persistence of the contrary practice in the District Court was described as "most unfortunate" by Barr J and prompted "considerable concern" from McInerney AJ.
• Statistical sentencing data may demonstrate that a sentence falls in the upper range but does not, without more, establish that the sentence exceeds the proper limits of judicial discretion.
• Where a victim's age, the remote location, and the nature of the offending combine with all four available statutory aggravating features under s 61J of the Crimes Act, the offending may properly be characterised as approaching the worst category, supporting a substantial custodial sentence even where significant subjective features favour the offender.
• Significant cooperation with police, including an offer to give evidence against a co-offender, is a relevant mitigating consideration at sentence, but it does not automatically produce a more favourable outcome when weighed against the totality of the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation
- s 61J Crimes Act (NSW) (sexual intercourse without consent in circumstances of aggravation)
- Criminal Procedure Act (NSW)
- Children (Criminal Proceedings) Act (NSW)

Cases
- R v Cartwright (1989) 17 NSWLR 243
- R v Bus, Court of Criminal Appeal, 3 November 1995 (unreported)
- R v Lewis, Court of Criminal Appeal, 14 December 1993 (unreported)