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23
Court of Criminal Appeal 27 November 2000

Regina v J C E

[2000] NSWCCA 498

Also reported as (2000) 120 A Crim R 18
Sexual offences

Citation: Regina v J C E [2000] NSWCCA 498
Court: New South Wales Court of Criminal Appeal
Date: 27 November 2000
Judge(s): Fitzgerald JA, Whealy J, Howie J

Background

The respondent, a man in his early forties, pleaded guilty in the District Court to two counts of aggravated sexual intercourse with his daughter without her consent when she was under the age of 16, contrary to s 61J(1) of the Crimes Act 1900. The offences, each carrying a maximum penalty of 20 years' imprisonment, occurred in 1994 and during an access visit between January and March 1997.

After pleading guilty in August 1998, the respondent was initially dealt with under the Pre-Trial Diversion of Offenders Act 1985 and directed to attend a treatment program at Westmead for two years. He was subsequently suspended from that program for unsatisfactory progress and breaches of his undertaking.

At a further sentencing hearing in July 2000, Goldring DCJ imposed a sentence of two years' imprisonment with a minimum term of 15 months, suspended for two years upon the respondent entering a good behaviour bond. The bond included conditions prohibiting contact with his children and requiring participation in a supervision and treatment program through the Probation and Parole Service. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate.

  • Whether a suspended sentence of imprisonment, following convictions for serious child sexual assault offences, was manifestly inadequate so as to warrant appellate intervention.
  • Whether any conceptual inconsistency or "conundrum" arises under the Crimes (Sentencing Procedure) Act 1999 when a court determines that no penalty other than imprisonment is appropriate yet suspends execution of that sentence.
  • Whether the Court of Criminal Appeal should exercise its discretion to intervene in a prosecution appeal given the circumstances at the time of the appeal, including the respondent's progress on his good behaviour bond.

Decision

Fitzgerald JA addressed the Crown's argument that the structure of the Crimes (Sentencing Procedure) Act 1999 created an internal contradiction: that a court could not logically reject a good behaviour bond as insufficient yet then suspend a sentence of imprisonment, the effect of which resembles a bond. The Court rejected this framing. A suspended sentence of imprisonment remains a sentence of imprisonment and is a heavier penalty than a non-custodial order. The legislative scheme simply requires a court to determine first whether imprisonment is necessary, then whether execution of that sentence should be suspended, weighing the same considerations afresh at each step.

The relevant considerations at the suspension stage include the objective features of the offences and the personal circumstances of the offender, including prospects of rehabilitation and mercy. The Court noted that sentencing factors often pull in different directions and the sentencing task requires balancing them, not eliminating the tension.

Turning to the substance of the Crown's appeal, Fitzgerald JA acknowledged that the respondent ought to have received a heavier sentence. However, acknowledging that something is an error of degree is not sufficient to justify appellate intervention in a prosecution appeal. The established principles governing such appeals require the Court to find that the sentence fell outside the range that a sentencing judge could reasonably and justly impose. Given factors including the respondent's compliance with his bond, his progress in the Probation and Parole Service program, and the time elapsed since sentencing, the Court declined to interfere. Whealy J and Howie J agreed, with Howie J confirming the matter did not warrant intervention.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A suspended sentence of imprisonment is a sentence of imprisonment under the Crimes (Sentencing Procedure) Act 1999, not merely a non-custodial alternative. The sentencing court applies the same considerations when deciding whether to suspend execution as it did when determining that imprisonment was necessary.
  • No logical inconsistency arises under the Act when a court rejects a good behaviour bond as insufficient yet suspends a sentence of imprisonment. The two decisions operate at different points in the sentencing analysis, and a suspended sentence represents a heavier penalty than a bond.
  • In dismissing the appeal, the Court confirmed that a prosecution appeal against sentence requires more than a finding that the sentence was lower than preferred. Intervention is warranted only where the sentence fell outside the range a sentencing judge could reasonably and justly impose.
  • Factors relevant to the exercise of the appellate court's discretion on a prosecution appeal include the offender's compliance with conditions since sentencing, progress in rehabilitation programs, and the time elapsed before the appeal was heard.
  • Consistent with the High Court's approach in Dinsdale v R, the Court of Criminal Appeal confirmed that even for serious sexual offences against children, sentencing discretion remains with the sentencing judge and individual circumstances may justify a departure from the ordinary expectation of immediate full-time custody.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12(1)
- Pre-Trial Diversion of Offenders Act 1985 (NSW)

Cases:
- Dinsdale v R [2000] HCA 54

Secondary Material:
- Mirko Bagaric, "Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishments" (1999) University of New South Wales Law Journal 535