Citation: Regina v Pritchard [1999] NSWCCA 182
Court: New South Wales Court of Criminal Appeal
Date: 14 July 1999
Judges: Grove J, Abadee J, Barr J
Background
The appellant pleaded guilty in the District Court to four counts of serious sexual offences, and asked the court to take a further four offences into account on sentence. The offences involved eight separate victims and spanned conduct occurring between 1 August 1973 and 31 January 1992. The charges included buggery (s 79 Crimes Act 1900), assault with intent to commit buggery (s 80), indecent assault on a male (s 81), and assaults accompanied by acts of indecency (ss 61E(1) and 61L).
A central complication was that several of the offence provisions to which the appellant had pleaded guilty had been repealed or substantially amended before sentence was imposed. The appellant challenged his sentences on multiple grounds, including that the repeal of the buggery offence under s 79 should have extinguished his criminal liability for that conduct.
Taylor DCJ in the District Court had sentenced the appellant, and an appeal against those sentences was brought in the Court of Criminal Appeal. Leave to appeal was required.
Legal Issues
- Whether the repeal of s 79 of the Crimes Act 1900 (buggery with mankind) extinguished the appellant's criminal liability for conduct previously charged under that provision, or whether equivalent offences in the amended legislation preserved that liability
- Whether the sentencing judge erred in taking other offences into account under s 22(1) of the Criminal Procedure Act 1986 in connection with the buggery charge
- Whether the loss of the appellant's vocation was appropriately treated as a mitigating factor on sentence
- Whether the parity principle applied as between the appellant's sentence and the sentence imposed on another individual (Sweeney) who was not, strictly speaking, a co-offender but had been involved in related conduct
Decision
On the central question of whether the repeal of s 79 extinguished criminal liability, the Court rejected the appellant's argument. The Court held that the appellant's conduct on the buggery count was not simply consensual anal intercourse between adults in private. The evidence placed before the sentencing judge, without objection, described the victim as emotionally distressed and vulnerable, and the conduct as non-consensual. The partial repeal of s 79 abolished the offence only insofar as it concerned consenting adults; non-consensual acts remained punishable as sexual intercourse without consent under s 61I. Sections 55(2) and 30 of the Interpretation Act 1987 were relevant to the preservation of liability under the repealed provisions.
On the parity ground, the Court found that Sweeney was not a co-offender in the conventional sense. His conduct and culpability were materially different from and considerably less serious than the appellant's. The sentencing judge had, in any event, expressly taken Sweeney's sentence into account and articulated the relevant distinctions. The Court concluded that Sweeney's sentence was more properly viewed as forming part of the available range of sentences rather than as a strict comparator engaging the parity principle.
The Court also considered the treatment of scheduled offences taken into account on the buggery charge, and the relevance of the appellant's loss of vocation. No error in the sentencing judge's approach was identified on these grounds. The sentences were found to fall within the appropriate range having regard to the objective gravity of the offences and the appellant's subjective circumstances.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The partial repeal of s 79 of the Crimes Act 1900 did not extinguish criminal liability for non-consensual buggery; where equivalent conduct remained punishable under successor provisions (such as s 61I), the abolition was not absolute and liability was preserved.
- Under ss 55(2) and 30 of the Interpretation Act 1987, the repeal of an offence provision does not necessarily extinguish liability for conduct charged under it, particularly where replacement legislation covers the same or substantially similar conduct.
- The parity principle in sentencing applies most directly as between co-offenders; where the comparison person was not a true co-offender and their conduct was materially less serious, a sentencing judge's express consideration of that person's sentence may satisfy the requirement of consistency without mandating equivalence.
- Section 580 of the Crimes Act 1900 (inserted by the Crimes (Amendment) Act 1984) bars charges at common law for conduct formerly caught by ss 79 to 81, but this does not prevent prosecution under replacement statutory provisions where the conduct in question remains criminal.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the relevant sentencing inquiry is whether a sentence falls within the range appropriate to the particular offence's objective gravity and the offender's subjective circumstances, not whether it is more or less severe than any individual sentence within that range.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 61E(1), 61H, 61I, 61L, 79, 80, 81, 580
- Criminal Procedure Act 1986 (NSW): ss 21(1)(c), 22(1)
- Interpretation Act 1987 (NSW): ss 30, 55(2)
- Crimes (Amendment) Act 1984 (NSW)
Cases
- R v Bonora (1994) 35 NSWLR 74
- Ellis (cited in the judgment regarding sentencing range principles, Hunt CJ at CL)
- Morgan (cited regarding sentencing range, Hunt CJ at CL)
- Howard, Australian Criminal Law, 5th edition (academic text cited in judgment)
- Halsbury's Laws of England, 4th edition, Vol 11(1) (cited regarding common law buggery)