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Court of Criminal Appeal 12 April 2000

R v MAHER

[2000] NSWCCA 147

Sexual offences

Citation: R v Maher [2000] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 12 April 2000
Judge(s): Hulme J, Dowd J

Background

The appellant had been sentenced in the District Court following guilty pleas to two counts of sexual assault committed against separate victims at a caravan park. The first offence, charged under section 61I of the Crimes Act (sexual intercourse without consent, maximum 14 years), occurred in October 1995. The second, charged under section 61J (aggravated sexual assault, maximum 20 years), occurred in January 1998 and involved significant physical violence against the victim.

The sentencing judge imposed a fixed term of three years for the first offence and a cumulative sentence of five years minimum plus three years additional for the second. The appellant was known to both victims, committed the second offence while on bail for the first, and had entered guilty pleas to both charges, though not until immediately before or during trial.

The appellant sought leave to appeal against sentence, contending the total penalty was excessive on several grounds.

  • Whether the sentencing judge gave adequate weight to the appellant's guilty pleas, particularly to the timing of the first plea
  • Whether the sentencing judge failed to properly engage with a psychologist's report addressing the appellant's recidivism risk
  • Whether, given the appellant's borderline intellectual functioning (IQ of 74, bottom four per cent of the population), the sentencing judge was in error to apply the principle of general deterrence
  • Whether the total sentence imposed fell outside the proper range of sentencing discretion

Decision

On the guilty plea issue, the Court declined to draw the inference that the sentencing judge had misunderstood the timing of the first plea merely because she used the word "now" when referring to it. Hulme J observed that the significantly lighter sentence imposed for the first offence, compared with the second, provided no basis for concluding the plea had been improperly discounted.

On the recidivism issue, the Court accepted that it might have been preferable for the sentencing judge to address explicitly the portion of the psychologist's report dealing with a recidivism scale. However, it was satisfied the judge had directed her attention to the report and to the likelihood of re-offending in absolute terms. Hulme J went further, expressing doubt that the recidivism scale was a reliable guide in the circumstances, noting it was structured in a way that inherently favoured someone with no significant prior criminal history who offended later in life.

On general deterrence, the Court acknowledged the line of authority suggesting that general deterrence carries reduced weight where an offender has a mental disorder or abnormality. It was not satisfied, however, that an IQ placing the appellant in the bottom four per cent of the population alone brought him within that principle. The Court noted that the appellant had not offended until approximately age 39 and had committed the second offence while on bail, both factors weighing against a significant reduction in the deterrence component.

On the overall sentence, the Court found no error. A total of eight years for the second offence was described as by no means excessive, and the three-year fixed term for the first offence was characterised as on the light side. The Court was satisfied the sentencing judge had applied the totality principle and had properly balanced the relevant factors in setting the non-parole period.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge is not obliged to address every element of an expert report in express terms, provided the judgment demonstrates attention to the report and its key issues.
  • A recidivism scale that is structurally weighted in favour of older, first-time offenders may carry limited persuasive force where the circumstances of the offending provide stronger direct evidence of propensity.
  • Under the general deterrence principle, borderline intellectual functioning does not automatically reduce the weight accorded to deterrence; the significance of any cognitive limitation must be assessed against the particular facts of the case.
  • Committing a second serious sexual assault while on bail for an earlier equivalent offence is a circumstance that limits the weight a sentencing court can give to arguments based on cognitive abnormality or lower re-offending risk.
  • In dismissing the appeal, the Court affirmed that a total sentence of eight years for an aggravated sexual assault was within the proper range of discretion, even where concurrent sentencing factors such as guilty pleas and psychologist evidence were present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)
- Crimes Act 1900 (NSW), s 439 (obligation to take guilty plea into account)

Cases: No specific cases were identified in the portions of the judgment provided.