Citation: Regina v Cutmore [1999] NSWCCA 132
Court: New South Wales Court of Criminal Appeal
Date: 28 May 1999
Judge(s): Ireland J, Kirby J, Carruthers AJ
Background
The respondent pleaded guilty in the District Court at Inverell to one count of kidnapping and one count of aggravated sexual assault, both arising from a single incident in December 1997. The victim was a twelve-year-old girl who was abducted from her bedroom in the early hours of the morning and subjected to a series of serious sexual assaults at a nearby showground. The respondent had entered the home through a window, initially claiming his intent was robbery.
The offences involved significant physical injury to the victim, requiring surgical repair under anaesthesia. The respondent threatened to kill the victim if she reported the offending. He was on parole at the time, having been released from custody approximately three weeks before the offences.
Acting Judge Johnston in the District Court sentenced the respondent to concurrent sentences of penal servitude comprising a minimum term of four years and an additional term of five years, producing a total sentence of nine years. The Crown appealed, arguing the minimum term was manifestly inadequate.
Legal Issues
- Whether the minimum term of four years, within a total sentence of nine years, was manifestly inadequate given the objective gravity of the offences.
- Whether the sentencing judge gave insufficient weight to the objective circumstances of the offending and to the requirement of public deterrence.
- Whether the sentencing judge over-weighted the respondent's subjective circumstances, including his Aboriginality, alcohol abuse history, youth, and expression of remorse.
- Whether special circumstances under section 5(2) of the Sentencing Act 1989 justified a departure from the standard statutory ratio between minimum and additional terms, and if so, to what extent.
Decision
The Court of Criminal Appeal allowed the Crown appeal, finding that the error lay not in the overall nine-year sentence but in how it was divided between the minimum and additional terms. Ireland J held that a minimum term of four years failed to give due weight to the objective seriousness of the offending: the kidnapping of a sleeping child from her home, serious sexual assaults accompanied by physical injury, and accompanying threats of death.
The sentencing judge had taken into account the respondent's Aboriginality and background of alcohol abuse from an early age, drawing on the principles in R v Fernando (1992) 76 A Crim R 58. The Court accepted these matters as relevant subjective considerations, and acknowledged the genuine remorse and the value of the guilty pleas in sparing the victim from having to give evidence. However, the Court found that the weight given to these factors was disproportionate to the gravity of the offending.
Ireland J identified that the sentencing judge had undervalued public deterrence and overestimated the significance of the subjective features, thereby demonstrating manifest error in the division of the sentence. The Court noted its general reluctance to interfere in Crown appeals, given the double jeopardy considerations, but found the inadequacy of the minimum term was of sufficient gravity to require correction in the interests of the administration of justice.
Special circumstances were found to exist, justifying some departure from the standard statutory ratio between minimum and additional terms. Those circumstances included the respondent's relative youth, his need for rehabilitation in respect of alcohol abuse, and the desirability of ongoing supervision on release. The Court restructured the sentence to increase the minimum term to six years while reducing the additional term to three years, preserving the total sentence of nine years.
Orders Made
- The appeal was allowed.
- The sentence imposed on 4 September 1998 (minimum term of four years, additional term of five years) was quashed.
- In lieu, the respondent was sentenced to penal servitude for nine years, comprising a minimum term of six years deemed to have commenced on 22 January 1998 and expiring on 21 January 2004, with an additional term of three years commencing 22 January 2004 and expiring 21 January 2007.
Key Takeaways
- A Crown appeal against a sentence will succeed where the minimum term, viewed against the objective gravity of the offending, is manifestly inadequate, even if the overall head sentence is not challenged.
- The Court of Criminal Appeal confirmed that, while double jeopardy considerations create a strong reluctance to interfere on a Crown appeal, that reluctance yields where the inadequacy is of sufficient gravity that the administration of justice requires correction.
- Subjective factors, including Aboriginality and a background of alcohol abuse (as addressed in R v Fernando), are legitimate sentencing considerations but cannot be permitted to dominate over the objective seriousness of the offending and the requirements of public deterrence.
- Special circumstances justifying a departure from the standard minimum-to-additional term ratio can coexist with a finding that the minimum term imposed was nevertheless manifestly inadequate; the two questions are distinct.
- Where special circumstances are found, the court may restructure the division of a sentence without altering the total, increasing the minimum term while reducing the additional term accordingly.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J (aggravated sexual assault), 90A (kidnapping)
- Sentencing Act 1989 (NSW), s 5(2)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v A Jones (NSWCCA, 30 June 1994)
- R v Allen (NSWCCA, 4 July 1994)
- Regina v Khoury (NSWCCA, 5 December 1994)
- Tindall & Gunton (1993) 74 A Crim R 275
- Rushby (1977) 1 NSWLR 594
- R v Withers (1925) SR 382
- Whittaker v The King (1928) 41 CLR 230
- Griffiths v The Queen (1977) 137 CLR 293
- Dodd (1991) 57 A Crim R 349
- Regina v Gulam Mohammad Khan (NSWCCA, 27 May 1996)