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Court of Criminal Appeal 22 November 2000

R v THOMSON

[2000] NSWCCA 476

Sexual offences

Citation: R v Thomson [2000] NSWCCA 476
Court: NSW Court of Criminal Appeal
Date: 22 November 2000
Judge(s): Barr J; Carruthers AJ

Background

The applicant was the stepfather of an eleven or twelve year old boy. Over the course of 1995, he committed a series of sexual offences against the child, including multiple acts of indecent assault. The offences occurred in the family home while the applicant and child were alone, and the applicant threatened to withhold promised gifts if the boy told anyone. The complainant suffered significant and ongoing psychological harm, including post-traumatic stress disorder, nightmares, suicidal thoughts, and doubts about his sexuality.

The applicant was charged with seven sexual offences, including four counts of sexual intercourse with a child. After a jury was empanelled for trial on all counts, he pleaded guilty to three counts of aggravated indecent assault on a person under sixteen years. The Crown accepted that plea in discharge of the full indictment.

In the District Court, Acting Judge Nader QC sentenced the applicant to an effective total of four years' imprisonment (comprising a minimum term of two years and six months and an additional term of one year and six months), after allowing for approximately five and a half months of pre-sentence custody. The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentences were excessive.

  • Whether the sentencing judge gave sufficient weight to the applicant's guilty pleas, having regard to both their utilitarian value and the question of contrition
  • Whether the applicant's poor physical and psychological health, and personal circumstances, warranted a more lenient sentence
  • Whether the offences were properly characterised as "out of character"
  • Whether the effective sentence of just under four and a half years fell outside the permissible range of sentencing discretion, taking into account the maximum penalty of seven years per offence

Decision

The Court accepted that the applicant's guilty pleas had reduced utilitarian value in terms of contrition, because the applicant claimed he could not fully remember the offending. However, the utilitarian benefit of the pleas remained intact: they spared the complainant the "appalling experience" of giving evidence and being cross-examined. The Court found the sentencing judge had plainly recognised and given weight to this benefit, and that the sentences did not suggest any failure to apply an appropriate discount.

On the question of health and personal circumstances, the Court noted that the sentencing judge had expressly taken into account the applicant's depression, injury, impotence, and heavy drinking during the relevant period. However, the Court observed that none of these factors appeared to explain why the offending occurred. The applicant's own psychiatrist, Dr Jolly, said he did not know, and did not know whether the applicant himself knew, why he had acted as he did.

The Court rejected the submission that the offences were out of character. The offending had continued over a period of approximately one year. Although the applicant was sentenced for only three counts, the existence of the other offences was relevant to his character. The Court found that by the time the three sentenced offences were committed, the conduct was firmly within the applicant's character, and any finding to the contrary would have been against the evidence.

On the sentencing statistics submitted by the applicant, the Court found them of limited assistance because they appeared to relate only to single offences. The applicant had committed three offences over an extended period, making his overall criminality materially greater than that of a single-offence case. The Court concluded the effective sentence did not fall outside the permissible range of the sentencing discretion and dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea (sparing witnesses from giving evidence) remains undiminished even where the offender claims a lack of memory of the offending, though the absence of genuine contrition may reduce the weight accorded to the plea in other respects.
  • In dismissing the appeal, the Court emphasised that sentencing statistics for single offences are of limited value when sentencing an offender for multiple offences committed over an extended period, as the cumulative criminality is materially greater.
  • A pattern of offending repeated over approximately one year does not readily attract a finding that the conduct was "out of character," even where there is no evidence of offending against anyone other than the complainant.
  • Poor physical and psychological health, while a relevant sentencing consideration, carries reduced weight where those circumstances do not appear to explain the offending conduct.
  • Breach of trust and serious psychological harm to a child complainant are significant aggravating features that properly bear on the length of a custodial sentence, even after discounts for guilty pleas are applied.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text. The offences were aggravated indecent assault on a person under sixteen years of age, carrying a maximum penalty of seven years' imprisonment under the applicable New South Wales law.

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