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Court of Criminal Appeal 15 March 2000

REGINA v B M T

[2000] NSWCCA 112

Sexual offencesAssault & violence

Citation: REGINA v B M T [2000] NSWCCA 112
Court: New South Wales Court of Criminal Appeal
Date: 15 March 2000
Judge(s): Simpson J; Barr J

Background

The applicant pleaded guilty in the District Court in October 1996 to aggravated sexual assault under s 61J of the Crimes Act 1900, and was also sentenced on a related malicious damage offence taken into account at his request. The sentencing judge, Phelan DCJ, imposed a total term of twelve years' penal servitude, comprising a minimum term of nine years and an additional term of three years.

The offence itself was described by the sentencing judge as "horrendous." The applicant, who had been released on parole only months earlier after serving time for serious prior offences, entered the victim's home unit under the pretence of wanting tea and then subjected her to over three and a half hours of serious sexual violence, including multiple forms of penetration and forced sexual acts, while her three-year-old son was present throughout.

The applicant sought leave to appeal the sentence, well outside the ordinary time limit. The principal basis for the appeal emerged from a significant intervening development: in April 1999, this Court quashed two 1988 convictions (for assault occasioning actual bodily harm and maliciously inflicting grievous bodily harm with intent to murder) and entered verdicts of acquittal. The applicant argued that those now-overturned convictions had improperly influenced the original sentence.

  • Whether an extension of time and leave to appeal should be granted, and whether the applicant could revive an earlier abandoned application for leave.
  • Whether the sentencing judge gave excessive weight to prior convictions, in circumstances where two of those convictions were subsequently quashed and verdicts of acquittal entered.
  • Whether the fact that the applicant was on parole at the time of the offence, treated as an aggravating factor, was unfairly applied given that the parole order stemmed from the subsequently quashed convictions.

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, with the Crown not opposing either step. However, the Court dismissed the appeal on its merits.

On the first ground, Simpson J found that the sentencing judge's remarks focused specifically on the applicant's history of sexual violence when addressing prior convictions. The two 1988 convictions that were later quashed were not expressly mentioned in that context, and the Court declined to infer that they had operated on the judge's mind to increase the sentence. The sexual offending history alone amply justified the weight given to the applicant's record.

On the second ground, Simpson J noted that, whatever the subsequent legal history, the applicant was undoubtedly subject to a valid parole order at the time of the offence and was in breach of its conditions. More significantly, even accepting that being on parole was treated as an aggravating factor, the Court found that this consideration could have made very little, if any, identifiable difference to the outcome given the extreme objective gravity of the offence and the overriding concern about the applicant's danger to society.

The Court observed that the sentencing proceedings had centred on the applicant's danger to society (applying the principles from R v Veen (No 2)) and on the undoubted seriousness of the offence itself, which sat at the upper end of its kind and called for a very lengthy sentence. Barr J agreed with Simpson J's reasons and proposed orders.

Orders Made

  • Extension of time within which to apply for leave to appeal: granted.
  • Leave to appeal: granted.
  • Appeal: dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge's explicit focus on prior convictions was directed to sexual offending history, the subsequent quashing of unrelated convictions not expressly mentioned did not necessarily vitiate the sentence.
  • A valid parole order in existence at the time of the offence remains a proper aggravating factor in sentencing, notwithstanding that the underlying conviction giving rise to the parole was later quashed.
  • Where an aggravating factor has minimal identifiable effect on the outcome, compared with the dominant sentencing considerations of objective gravity and community protection, an appeal on that basis will not succeed.
  • Applying R v Veen (No 2), the risk an offender poses to the community is a legitimate and weighty consideration in sentencing, particularly where a long history of serious violence exists.
  • An abandoned application for leave to appeal may be revived if the Court grants the necessary extension of time and leave, and the Crown's non-opposition to such procedural steps was noted as a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)
- Criminal Procedure Act 1986 (NSW), s 21 (taking further offences into account)
- Criminal Appeal Act 1912 (NSW), s 10 (time limits for appeals)

Cases:
- R v Veen (No 2) (1988) 164 CLR 465 (High Court: community protection as a sentencing consideration)