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Court of Criminal Appeal 25 February 2000

R v JS

[2000] NSWCCA 38

Sexual offences
CRIMINAL LAW SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: R v JS [2000] NSWCCA 38
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The applicant, referred to as JS, pleaded guilty in the District Court to two counts of aggravated indecent assault under the Crimes Act 1900. The victim was his thirteen-year-old stepdaughter. The offences occurred on a single day in May 1996, during what was described as a friendly wrestle, in which JS seized the victim's breasts and touched her vaginal area over her clothing. A further incident in June 1996, in which he placed his hand on the victim's exposed breast, was taken into account on a Form 1 (a procedure allowing additional offences to be considered at sentencing without separate conviction).

The sentencing judge in the District Court imposed concurrent terms of three years imprisonment, comprising a minimum term of eighteen months and an additional term of eighteen months. JS applied to the Court of Criminal Appeal for leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the total effective sentence of three years imprisonment was manifestly excessive in all the circumstances.
  • How to weigh the nature of the offences, the isolated character of the conduct, and the applicant's personal circumstances in arriving at an appropriate sentence.

Decision

The Court of Criminal Appeal accepted that the three-year sentence fell within the upper range for this class of offence, as confirmed by Judicial Commission statistics and the Court's own experience of sentencing patterns. However, the Court found that such a sentence was not warranted in the particular circumstances of this case.

Hidden J identified several factors pointing to a lower sentence: the nature of the indecent conduct, the fact that the three incidents were isolated and did not form part of a wider pattern of abuse, and the applicant's age (fifty-three at the time of hearing) and prior good character. JS had no criminal record, had been assessed as an excellent worker, and had otherwise been regarded as a good husband and stepfather. The sentencing judge had also noted the likelihood of JS requiring protective custody during his imprisonment.

Fresh evidence received at the appeal hearing showed JS had been well-behaved in prison, had taken advantage of educational opportunities, and had suffered the loss of his mother during his sentence. The Court factored this material into the re-sentencing exercise.

The Court quashed the original sentences and substituted a reduced term of two years on each count, comprising a minimum term of twelve months and an additional term of twelve months, to be served concurrently. The Court also directed JS's release at the expiration of the minimum term.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentences quashed.
  • JS sentenced on each count (concurrent), taking into account the Form 1 matter, to two years imprisonment comprising a minimum term of twelve months (commencing 2 March 1999, expiring 1 March 2000) and an additional term of twelve months.
  • JS directed to be released at the expiration of the minimum term.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a three-year sentence for aggravated indecent assault of this kind sat in the upper range, and that placing an offender there requires circumstances that justify such a result.
  • Where offending is isolated and does not form part of a sustained pattern of abuse, that characteristic is a relevant mitigating factor in sentencing.
  • An offender's age, absence of prior convictions, and otherwise good character remain significant considerations at sentencing, capable of moving a sentence away from the upper range even for serious offences involving a child victim.
  • Judicial Commission statistics have limited utility in cases with a small sample size once individual variables are applied; the Court treated them as broadly indicative rather than determinative.
  • Post-sentence conduct, including good behaviour in custody and engagement with educational programmes, formed part of the re-sentencing assessment on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1) (aggravated indecent assault)

Cases: No cases were cited in the judgment text provided.