Citation: [1999] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 14 September 1999
Judge(s): Handley JA, Grove J, Hidden J
Background
The respondent, a man in his early sixties, pleaded guilty in December 1998 to five charges of sexual abuse against his eight-year-old granddaughter. The charges comprised two counts of sexual intercourse with a person under the age of ten, contrary to s 66A of the Crimes Act 1900 (NSW) (maximum penalty: 20 years penal servitude), and three counts of aggravated indecent assault against a person under ten, contrary to s 61M(2) (maximum penalty: 10 years imprisonment). The offending came to light when the victim's father walked in and discovered the respondent in the act.
At the sentencing hearing in the District Court, Solomon DCJ deferred passing sentence and released the respondent on a five-year good behaviour recognizance. The sentencing judge cited the respondent's age, absence of criminal history, the spontaneous and unplanned nature of the offending, his contrition, rehabilitation efforts, and the victim's father's expressed wish that the respondent not be imprisoned.
The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that the non-custodial outcome was manifestly inadequate and failed to reflect the objective seriousness of the offences.
Legal Issues
- Whether the sentence imposed by the District Court was manifestly inadequate for offences of this nature and gravity.
- Whether mitigating factors, including the respondent's age, absence of prior convictions, expressions of contrition, rehabilitation efforts, and the victim's family's wishes, could collectively or individually support a non-custodial sentence.
- Whether a guilty plea entered after the respondent was caught in the act carried significant weight as evidence of contrition.
Decision
The Court of Criminal Appeal allowed the appeal unanimously, finding that the District Court's sentencing discretion had miscarried. Handley JA (with Grove J agreeing) held that the objective criminality of these offences was such that a full-time custodial sentence was required. The court followed earlier CCA decisions in Allpass (1993) 72 ACrimR 561 and King (CCA, unreported, 2 April 1997) in reaching that conclusion.
The Court scrutinised each mitigating factor relied upon below. Because the respondent had been caught in the act, his subsequent disclosure and guilty plea were of limited, if any, weight as indicators of genuine contrition. Handley JA also noted that the respondent's record of interview contained elements of self-justification and an attempt to shift responsibility onto the victim, which further undermined any finding of meaningful contrition.
The victim's father's wish that the respondent not be imprisoned received particular attention. The father's principal concern was that his daughter not feel guilty for her grandfather's imprisonment. While Hidden J expressly acknowledged the father's position as humane, responsible, and understandable, all three judges agreed it could not properly influence the sentencing outcome. Handley JA observed that the guilt was the respondent's alone, and it would be entirely inappropriate for the victim to bear any sense of responsibility for the consequences flowing from the offending.
The remaining factors identified by the sentencing judge, including age, absence of criminal record, and low risk of reoffending, were found to carry little weight individually or collectively when set against the gravity of offences involving the serious sexual abuse of a young child by a trusted family member.
Orders Made
- Appeal allowed; orders of the District Court quashed.
- On counts 1 and 4 (sexual intercourse with a person under 10): two years penal servitude on each, served concurrently, comprising minimum terms of 18 months commencing 14 September 1999 (expiring 13 March 2001) and additional terms of six months commencing 14 March 2001.
- On counts 2, 3 and 5 (aggravated indecent assault on a person under 10): fixed terms of 12 months imprisonment on each, served concurrently with each other and concurrently with the minimum terms on counts 1 and 4, commencing 14 September 1999 and expiring 13 September 2000.
- Respondent to be released on parole on 13 March 2001, subject to supervision by the Probation and Parole Service.
- Respondent taken into custody forthwith.
Key Takeaways
- Offences of serious child sexual abuse by a person in a position of trust will ordinarily attract a full-time custodial sentence; a non-custodial disposition for such offending is liable to be set aside on Crown appeal as manifestly inadequate.
- A guilty plea entered after an offender is caught in the act carries substantially reduced weight as evidence of contrition, particularly where the offender's own statements reveal self-justification or an attempt to minimise personal responsibility.
- The wishes of a victim's family members that an offender not be imprisoned are not a proper basis for a non-custodial sentence, even where those wishes are expressed out of genuine concern for the victim's wellbeing.
- Under s 5D of the Criminal Appeal Act 1912 (NSW), the Crown may appeal a sentence as manifestly inadequate; where such an appeal succeeds, the appellate court will substitute its own sentence rather than remit the matter.
- Mitigating factors such as advanced age, absence of prior convictions, and low reoffending risk do not, individually or collectively, displace the sentencing imperative of full-time custody for serious sexual offences against very young children.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5D
Cases
- Allpass (1993) 72 ACrimR 561
- King (NSW Court of Criminal Appeal, unreported, 2 April 1997)
- DCM v R (NSW Court of Criminal Appeal, unreported, 26 October 1993)