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12
Court of Criminal Appeal 10 March 1999

Regina v May

[1999] NSWCCA 40

Sexual offences

Citation: Regina v May [1999] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judges: Spigelman CJ, Abadee J, Adams J

Background

The respondent, a 22-year-old man, pleaded guilty in the District Court at Campbelltown to a charge of sexual intercourse without consent under s 61I of the Crimes Act, which carries a maximum penalty of 14 years penal servitude. The offence occurred in January 1996 and involved a complainant known to the respondent who was significantly affected by alcohol at the time.

Judge Tupman sentenced the respondent on 15 October 1998 to a fixed term of three years penal servitude, to be served by way of periodic detention (a form of detention where the offender reports to a detention centre periodically rather than being held in full-time custody). The Crown appealed on the basis that the sentence was manifestly inadequate.

The Crown did not allege any specific error in the sentencing judge's reasoning. The sole ground of appeal was that the sentence fell outside the acceptable range.

  • Whether a sentence of periodic detention for an offence of sexual intercourse without consent was manifestly inadequate
  • Whether the sentencing judge was entitled to treat the case as an exceptional one justifying departure from the ordinary expectation of full-time imprisonment for this type of offence
  • Whether the Court of Criminal Appeal should intervene and re-sentence the respondent

Decision

The Court dismissed the Crown appeal, with all three judges agreeing. The leading judgment, delivered by Abadee J, confirmed the well-established principle that a conviction under s 61I ordinarily results in full-time imprisonment, and that non-consensual sexual intercourse is itself an extreme form of violence regardless of whether additional violence accompanies it. The Court reiterated that Parliament's 1991 increase of the maximum penalty from eight to fourteen years reflected community standards and must be given effect by the courts.

Despite these principles, the Court found no discernible error in Judge Tupman's approach. Her Honour had expressly identified this as an exceptional case, having regard to the particular facts and significant subjective factors relating to the respondent. The Crown did not challenge the sentencing judge's findings of fact, including her conclusion that the respondent was genuinely contrite and remorseful.

Abadee J observed that the outcome was one the respondent should consider himself fortunate to have received, noting that other judges, had their attention been drawn to R v Hartikainen, may well have imposed full-time custody. The Court also noted that the Hartikainen decision did not appear to have been placed before the sentencing judge by the Crown, a matter Abadee J described as being of some moment.

The Court also placed the respondent on notice regarding apparent non-compliance with his periodic detention obligations. While this matter played no part in the outcome of the appeal, Abadee J noted that continued non-compliance would expose the respondent to the serious risk of being called up for re-sentencing.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • A conviction under s 61I of the Crimes Act for sexual intercourse without consent will ordinarily attract full-time imprisonment, though the courts have recognised that wholly exceptional circumstances may justify a different outcome.
  • Non-consensual sexual intercourse is itself regarded as an extreme form of violence, and the absence of additional physical violence does not diminish the objective seriousness of the offence.
  • In dismissing the appeal, the Court of Criminal Appeal found no error in the sentencing judge's conclusion that exceptional subjective and factual circumstances justified departure from the ordinary sentencing range, even where that departure was significant.
  • Periodic detention carries a strong degree of leniency and is outwardly less denunciatory of the offence than full-time custody, a factor sentencing courts are expected to weigh carefully when considering its appropriateness for serious offences.
  • Where the Crown fails to draw a sentencing judge's attention to directly relevant appellate authority, that omission may affect the weight given to a Crown appeal against the resulting sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 61I (sexual intercourse without consent; maximum penalty 14 years)

Cases
- Regina v Hartikainen (CCA, 8 June 1993, unreported)
- Regina v Crisologo (1997) 99 A Crim R 178
- Regina v Billam [1986] 1 WLR 349
- Regina v Rushby [1977] 1 NSWLR 594
- Regina v W H S (CCA, 27 March 1995, unreported)
- Regina v Hallacoglu (1992) 29 NSWLR 67
- Regina v Musumeci (CCA, 30 October 1997, unreported)