Citation: Peterson v R [2000] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Grove J; Smart AJ
Background
The appellant pleaded guilty in the Parramatta District Court to three offences arising from a single attack on a young woman near a railway station at Pennant Hills. The offences were sexual intercourse without consent, malicious wounding, and stealing from the person (including the victim's clothing and purse). The sentencing judge imposed a total sentence of nine years penal servitude, divided into a minimum term of six years and nine months and an additional term of two years and three months.
The appellant sought leave to appeal against the severity of that sentence. He relied on three alleged errors in the sentencing judge's remarks: the treatment of violence across the individual counts, the admissibility of a history given to a psychiatrist, and the application of principles relevant to Aboriginal offenders.
Legal Issues
- Whether the sentencing judge erred by taking the violence associated with the malicious wounding count into account when sentencing on the sexual intercourse without consent count
- Whether the history given by the appellant to a psychiatrist was admissible as evidence of fact under the Evidence Act 1995
- Whether the sentencing judge correctly applied the principles from R v Fernando concerning the relevance of Aboriginal background in sentencing
- Whether the sentencing judge erred in declining to find special circumstances to alter the statutory minimum/additional term proportions
Decision
Violence across individual counts: The Court accepted there was some force in the argument that violence should not be double-counted across distinct charges. However, Grove J concluded that even if the sentencing judge erred in this respect, accumulation of the sentences would have produced the same result. Because no lesser sentence was warranted, the Court declined to intervene.
Psychiatric history and admissibility: The sentencing judge had cited Ramsey v Watson for the proposition that hearsay does not become admissible merely because it is given to a physician. Grove J noted that the Evidence Act 1995 changed this position, making such histories admissible as evidence of fact. To the extent the sentencing judge appeared to rule the material inadmissible, that was incorrect. Grove J interpreted the remarks, however, as reflecting a rejection of the history's content rather than a ruling on admissibility, and that rejection was within the sentencing judge's discretion.
Aboriginal background under Fernando: The sentencing judge had remarked that whatever benefit might flow from R v Fernando had "long since been lost" to the appellant because of his prior record. The Court of Criminal Appeal disagreed with that characterisation. Grove J stated that the principles in Fernando address systemic disadvantages borne by Aboriginal offenders, and those considerations do not expire or become unavailable over time. They remain always relevant where an offender has that background, though their weight in any particular case is a matter for the sentencing judge.
Special circumstances: The Court found no demonstrated error in the sentencing judge's refusal to find special circumstances to alter the statutory proportions of the sentence. Smart AJ agreed that the first three challenges had considerable substance, but concluded the overall sentence was correct even if some of the reasons given for it were erroneous. Leave to appeal was granted but the appeal was dismissed.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- The principles established in R v Fernando regarding Aboriginal offenders do not have an expiry point and cannot be treated as forfeited by reason of prior criminal history. They remain relevant considerations in every sentencing exercise involving an Aboriginal offender, though their weight is for the sentencing judge to assess.
- Under the Evidence Act 1995, a history given by a patient to a medical practitioner is admissible as evidence of fact, departing from the pre-Act position confirmed in Ramsey v Watson.
- Where a sentencing judge gives erroneous reasons but the overall sentence is nonetheless correct, the Court of Criminal Appeal will decline to intervene if no lesser sentence was warranted.
- In dismissing the appeal, the Court reinforced that errors in individual aspects of sentencing reasoning do not automatically justify appellate intervention where the sentence itself was appropriate.
- A sentencing judge retains discretion to reject the content of a psychiatric history as insufficiently probative, distinct from any question of admissibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Sentencing Act 1989 (NSW), s 5(2) (minimum and additional term formula)
- Evidence Act 1995 (NSW)
Cases:
- Ramsey v Watson (1961) 108 CLR 642 (admissibility of histories given to physicians)
- R v Fernando (1992) 76 A Crim R 58 (sentencing considerations for Aboriginal offenders)