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Court of Criminal Appeal 25 February 2000

R v R.A.L.

[2000] NSWCCA 53

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE EXTREME ACTS OF SEXUAL ASSAULT SEVEN VICTIMS INFANT VICTIMS DELAY IN DETECTION OF OFFENCES

Citation: R v R.A.L. [2000] NSWCCA 53
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Grove J; Smart AJ

Background

The appellant, a man born in 1922, pleaded guilty in the District Court to approximately 32 counts across two indictments. The offences were representative of a course of serious sexual and physical criminal conduct directed at seven victims over a period spanning from 1953 to approximately 1978 to 1980. All seven victims were members, step-members, or de facto family members of the appellant's various households over those years.

The victims included very young children, with some as young as four years of age. The conduct involved repeated and severe sexual assaults, including penile intercourse with infant children, anal intercourse, and other acts of gross sexual depravity, as well as non-sexual violence. The factual material before the sentencing judge recorded that each victim suffered extreme emotional, psychological, and physical harm that continued to affect their lives and relationships.

Luland DCJ in the District Court imposed multiple sentences with an effective total of 16 years, structured as a minimum term of 12 years and an additional term of 4 years. The appellant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the total effective sentence of 16 years was manifestly excessive given the appellant's age (71 at sentencing) and the significant delay between the offences and prosecution.
  • Whether the sentencing judge erred in finding that the delay in detection did not operate to mitigate the sentence.
  • Whether the sentencing judge erred in declining to find special circumstances that would justify a departure from the statutory division between minimum and additional terms under the Sentencing Act.
  • Whether the sentencing judge's finding, that the appellant simply expected everyone to forget the offending and let him resume his life, was open on the evidence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Grove J, with Smart AJ agreeing, found that although the sentence was undeniably severe, the criminality involved was correspondingly extreme. The Court recounted specific facts from the representative counts to illustrate that description, noting that multiple victims were infants who screamed during the assaults and that the appellant continued the conduct regardless.

On the question of delay, Grove J acknowledged that delay since the last offending (approximately 20 years before sentencing) can operate as a mitigating factor in some cases, but confirmed that its effect varies greatly depending on the circumstances. Citing Allen J in R v Holyoak, the Court noted that some offenders use the passage of time in a manner that amounts to confidence that they will escape accountability, rather than living in apprehension of justice. The sentencing judge had found this case fell into the latter category, a finding the Court of Criminal Appeal accepted as well open on the evidence, including a recorded conversation between the appellant and one of his victims.

The Court also rejected the submission that the sentencing judge's finding about the appellant's attitude was not available on the transcript of that recorded conversation. Having read the transcript as a whole, Grove J was satisfied the finding was plainly open. The Court further found no error in the refusal to find special circumstances warranting a different division of minimum and additional terms.

Smart AJ agreed, observing that the conduct was so gross that the sentences, while severe, fell well within the sound exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the severity of a sentence must be assessed against the severity of the underlying criminality, and that extreme offending can justify what would otherwise appear to be a heavy sentence.
  • The mitigating effect of delay between offending and prosecution is not automatic. Following R v Holyoak, the effect of delay depends on the individual circumstances, including whether the offender spent that period in apprehension of justice or in confidence of escaping it.
  • A sentencing judge's characterisation of an offender's attitude, where drawn from a recorded conversation in evidence, will not be set aside on appeal unless it is a finding that was not open on the material. The Court found this finding comfortably available on the transcript as a whole.
  • No error was established in the refusal to find special circumstances justifying a departure from the statutory minimum-to-additional-term ratio under the Sentencing Act.
  • Upholding the sentence, the Court reinforced that an offender's advanced age at the time of sentencing, while a relevant factual circumstance, does not necessarily reduce a sentence where the criminality is grave.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 5(2) (minimum and additional term division)

Cases:
- R v Holyoak (1995) 82 A Crim R 502 (Allen J, on the effect of delay in sentencing for historical offences)