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Court of Criminal Appeal 21 February 2000

R v Spiller

[2000] NSWCCA 36

Sexual offencesDomestic & family violence
CRIMINAL LAW SENTENCE INDECENT ASSAULTS ON STEPDAUGHTER NOT MANIFESTLY EXCESSIVE

Citation: R v Spiller [2000] NSWCCA 36
Court: New South Wales Court of Criminal Appeal
Date: 21 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The applicant was the de facto partner of the mother of two young girls, effectively their stepfather. He was convicted on three counts of aggravated indecent assault against the younger girl, committed over a period of approximately three years when she was aged between about six and nine. He was also convicted on one count of indecent conduct involving the older girl, aged twelve, relating to a single incident.

The applicant had voluntarily attended police and made a full confession when the offences came to light. Psychiatric evidence indicated he did not meet the diagnostic criteria for paedophilia and was not considered a substantial predatory risk to children generally. He had a prior criminal record, though not for sexual offences, and a history of alcohol and drug use.

At first instance, Gibson DCJ in the District Court sentenced the applicant to an effective term comprising a minimum of two years imprisonment and an additional term of two years, with concurrent fixed terms for the remaining counts. The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive.

  • Whether the effective sentence of four years (minimum two years, additional two years) was manifestly excessive for the offences as charged.
  • Whether the sentencing judge erred by proceeding from an assumption that full-time custody was necessarily required for offences of this kind, without proper regard to the individual facts and circumstances.

Decision

The applicant's counsel argued that the sentencing judge had wrongly treated full-time custody as an inevitable outcome for offences involving indecency with children where no penetration occurred, and that this caused the judge to pitch the sentence too high from the outset. The Court of Criminal Appeal acknowledged that such offences do not automatically require a custodial sentence.

However, the Court read the sentencing judge's remarks as reaching a conclusion specific to the facts of this case, not as the application of a blanket rule. The judge's comments about the breach of trust involved, the vulnerability of the children, and the duration of offending against the younger girl were treated as justifying full-time custody on the particular facts, rather than reflecting any general misapprehension about sentencing in this category of offence.

The Court also considered three previously decided cases, but found none provided useful guidance here. Two of those cases involved offences carrying lower maximum penalties under now-repealed provisions, and the third turned on fresh medical evidence specific to that applicant's health. The Court noted that Parliament had since significantly increased the maximum penalties for these offences, with the offences involving the younger girl carrying a maximum of ten years and those involving the older girl carrying a maximum of seven years, which itself reflected the seriousness with which the community views such conduct.

The Court was not persuaded that the sentencing judge had erred in approach or in the sentence ultimately imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Offences of indecency against children where no penetration is involved do not automatically require a sentence of full-time custody, as the Court of Criminal Appeal confirmed by reference to earlier authority.
  • In dismissing the appeal, the Court distinguished between a sentencing judge treating custody as inevitable in all such cases (which would be an error) and concluding that custody was warranted on the specific facts before the court (which was permissible).
  • A custodial sentence may be appropriate where the offending involves a sustained breach of trust by a person in a parental role, a pattern of conduct over several years, and the extreme youth and vulnerability of the victim.
  • Prior decisions on comparable offences carry limited weight as sentencing benchmarks where those offences were charged under different, since-repealed provisions with substantially lower maximum penalties.
  • No error was established in the sentencing judge's approach, and the effective sentence of a two-year minimum with a two-year additional term was upheld on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1) and 61M(2)

Cases:
- R v Baxter (CCA, unreported, 26 May 1994)
- R v Turner (No 2) (CCA, unreported, 28 July 1995)
- R v Barrett (CCA, unreported, 26 July 1995)