Citation: Mendoza-Torrico v R [1999] NSWCCA 413
Court: NSW Court of Criminal Appeal
Date: 10 December 1999
Judge(s): James J; Sperling J
Background
The applicant, a 35-year-old Bolivian-born man, pleaded guilty in the District Court to one count of sexual intercourse with a child under the age of ten years and two counts of committing an act of indecency with a child under the age of ten years. The victim was the nine-year-old daughter of the sister of his de facto wife. The offences were not isolated incidents but formed a repeated pattern of conduct, occurring across multiple occasions at different locations.
The sentencing judge, Freeman DCJ, imposed a total effective sentence of four years imprisonment, comprising a minimum term of two years and an additional term of two years, on the most serious count. The sentences on the two indecency counts were made fully concurrent with parts of the minimum term. The applicant sought leave to appeal on the basis that the sentences were manifestly excessive.
The sentencing judge had found significant mitigating circumstances, including the applicant's voluntary disclosure to police, early guilty pleas, contrition, rehabilitation efforts, absence of prior convictions, and difficult personal history. Nonetheless, Freeman DCJ regarded the offences as objectively serious, noting the applicant's position of trust in relation to the victim.
Legal Issues
- Whether the sentencing judge failed to take into account material considerations favourable to the applicant, including his contrition, rehabilitation, and subjective circumstances.
- Whether the sentences imposed, particularly the sentence on the most serious count, were manifestly excessive having regard to all relevant factors.
Decision
The Court of Criminal Appeal found that the sentencing judge had in fact carefully and thoroughly addressed all favourable subjective circumstances in detailed remarks on sentence. These included the applicant's voluntary approach to police, early guilty pleas (with their utilitarian value and evidence of contrition), absence of prior convictions, rehabilitation steps, and personal background. The Court was unable to conclude that any material consideration had been overlooked.
On the question of manifest excess, the Court acknowledged that the sentencing judge could possibly have imposed a less severe sentence. However, the Court held that it could not conclude the sentences were manifestly excessive. The offence under section 66A of the Crimes Act, involving a child under ten years of age to whom the applicant stood in a position of trust, carried a maximum penalty of 20 years penal servitude and was described as a grave offence. The Court also noted that good character carries less weight in child sexual assault matters than in other categories of offending.
The Court referred to statistics maintained by the Judicial Commission covering sentences imposed between January 1990 and December 1998 for comparable offenders (no prior convictions, guilty plea, single count under section 66A). Across 42 recorded instances, the sentence fell well within the range of a sound exercise of sentencing discretion. The Court cautioned, as it has on other occasions, that such statistics have limited utility but treated them as confirmatory in this context.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence for sexual intercourse with a child under ten years can properly attract a minimum term of two years (with an additional term of two years) even where significant mitigating factors are present, including no prior convictions, an early guilty plea, and demonstrated rehabilitation steps.
- A sentencing court's careful and detailed remarks on sentence will generally satisfy the requirement to take material considerations into account, even where the applicant presents a range of favourable subjective factors.
- Good character and rehabilitation are recognised mitigating considerations in child sexual assault cases, but the Court confirmed those factors carry less weight in this category of offending than in others.
- Judicial Commission sentencing statistics have limited utility but may be used to assess whether a sentence falls within the range of a sound exercise of discretion, rather than to fix a particular outcome.
- Where an offender in a position of trust commits a repeated pattern of child sexual offences carrying a maximum of 20 years penal servitude, the objective seriousness of the conduct remains a primary sentencing consideration.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10 years)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances for adjustment of minimum and additional terms)
Cases: No specific cases were cited in the portions of the judgment provided.