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Court of Criminal Appeal 8 February 2000

Regina v Murray

[2000] NSWCCA 430

Sexual offences
SENTENCE APPEAL PRIOR GOOD CHARACTER APPEAL DISMISSED

Citation: Regina v Murray [2000] NSWCCA 430
Court: NSW Court of Criminal Appeal
Date: 8 February 2000
Judge(s): Hulme J; Carruthers AJ

Background

The appellant, a 58-year-old man, had been in a de facto relationship with the complainant's mother since 1984. The complainant was nine months old when that relationship began and had no biological connection to the appellant. The offending spanned roughly six years, from early 1989 to mid-1995, and involved repeated indecent and aggravated indecent assaults against the complainant.

The appellant was convicted in the District Court at Wagga Wagga on one count of indecent assault on a child under 16 by a person in authority and four counts of aggravated indecent assault. Judge Luland imposed a fixed term of 12 months for four of the counts, running concurrently, and for the remaining count imposed a minimum term of 18 months with an additional term of 18 months.

The appellant sought leave to appeal against those sentences. He appeared unrepresented and filed written submissions. His grounds included complaints about his trial counsel's conduct at the sentencing hearing and alleged failure to place relevant mitigating material before the sentencing judge.

  • Whether trial counsel's failure to adequately emphasise psychiatric and treatment reports, or to raise certain mitigating factors, amounted to a sentencing error warranting appellate intervention.
  • Whether the 15-month delay between arrest and sentence should have been treated as a mitigating factor.
  • Whether the appellant's voluntary cessation of offending before arrest warranted greater leniency.
  • Whether hardship to the appellant's three sons from his incarceration constituted a relevant mitigating circumstance.
  • Whether the overall sentence fell outside the appropriate range for offences of this nature.

Decision

The Court of Criminal Appeal examined each ground raised in the appellant's written submissions. On the complaint about counsel, the Court noted that because address at the sentencing hearing was not recorded or transcribed, it was impossible to determine what was or was not said. The Court also found that the sentencing judge's remarks on sentence confirmed he had, in fact, considered both the psychiatric report from Professor McConaghy and the report from the Child Abuse Prevention Service.

The Court rejected the submission that the pre-sentence delay should have been separately treated as mitigation beyond what the judge already considered. Similarly, the claimed voluntary cessation of offending was noted as a matter that his Honour could be expected to have weighed, and no error in failing to address it specifically was demonstrated.

On the question of hardship to the three sons, the Court applied the established principle that family hardship is only taken into account where it is exceptional, such as where young children would be deprived of a sole carer. No evidence to that standard had been placed before the sentencing judge. The Court therefore found no basis for error on that ground.

Carruthers AJ concluded that the sentences imposed were, if anything, towards the lower end of the discretionary range available to the sentencing judge. The Court reaffirmed that sexual offences committed against young children by persons in positions of trust are treated with particular severity, with both punishment and general deterrence as significant sentencing considerations.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentences for sexual offences against children by persons in authority are assessed with strong weight given to deterrence and objective seriousness, and that subjective factors, including prior good character, carry reduced weight where offending is prolonged and involves a breach of trust.
  • In dismissing the appeal, the Court found the total sentence imposed was toward the lower end of the available range, underscoring how serious the Court treats such offences even where mitigating circumstances exist.
  • A complaint about trial counsel's conduct at a sentencing hearing cannot be substantiated on appeal where the hearing was not recorded and there is no transcript of what was or was not put to the sentencing judge.
  • Family hardship arising from an offender's incarceration is not treated as a mitigating factor unless the evidence establishes exceptional circumstances, such as deprivation of a primary carer for dependent children.
  • No error arises from a sentencing judge's failure to explicitly address every potential mitigating factor where the remarks on sentence demonstrate the judge engaged with the principal subjective considerations presented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 61M(1)

Cases:
- Regina v Todd [1982] 2 NSWLR 517
- Regina v Stewart (1994) 72 A Crim R 17
- R v Fisher (1989) 40 A Crim R 442