R v BJW [2000] NSWCCA 60

Citation: R v BJW [2000] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 14 March 2000
Judges: Sheller JA; James J; Dowd J

Background

The respondent was convicted by a jury in the District Court of five counts of sexual offences and one count of assault against his step-daughter. The offending spanned more than thirteen years, beginning when the complainant was 9 or 10 years old and continuing until she was 23. The respondent denied all charges and showed no contrition.

At the sentencing hearing, medical evidence was placed before Acting Judge Ford QC establishing that the respondent suffered from chronic lower back pain, epilepsy, and migraines, and required ongoing medication. There was also evidence that prolonged imprisonment could contribute to depression.

The sentencing judge gave significant weight to the respondent's health conditions and imposed a total effective sentence of 2 years and 8 months, expressly noting he had substantially reduced what would otherwise have been imposed. The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate.

Legal Issues

Whether the sentencing judge gave excessive weight to the respondent's ill health as a mitigating factor
Whether the medical evidence before the court was sufficient to justify the reduction applied
Whether the total effective sentence of 2 years and 8 months fell outside the acceptable range for offences of this seriousness
What principles govern a Crown appeal against inadequacy of sentence
What discount, if any, should apply on resentencing to account for the double jeopardy the respondent faced

Decision

The Court of Criminal Appeal allowed the appeal, finding that the sentences imposed by the District Court were so inadequate as to indicate error in the sentencing process itself. Sheller JA (with James and Dowd JJ agreeing) observed that the sentencing judge had provided little detail about the facts and circumstances of the offending and said nothing about the impact on the complainant, both of which were relevant considerations.

On the health issue, the Court confirmed that an offender's state of health is always a relevant sentencing consideration. However, the Court held that the sentencing judge had applied an overly generous discount. The medical report tendered barely met the threshold of adequate evidence as to the nature and extent of the illness and its effects on conditions of incarceration. Critically, there was nothing to suggest the Department of Corrective Services would be unable to treat the respondent appropriately. Ill health cannot operate as a licence to commit crime, and offenders cannot generally expect to escape punishment on health grounds alone.

The Court also affirmed that a Crown appeal against inadequacy of sentence is exceptional in nature. The standard is not merely that the appellate court would itself have imposed a heavier sentence. The sentence must be so inadequate as to demonstrate a departure from principle or accepted sentencing standards before the Crown is entitled to have it corrected.

On resentencing, the Court took into account the principle from Everett v The Queen that an offender facing resentencing on a Crown appeal is placed in double jeopardy regarding their freedom, and that this uncertainty points toward the lower end of the appropriate range. Even so, the gravity of the offending, the prolonged breach of trust, and the importance of general deterrence in cases of child sexual abuse within the family unit all required a substantially heavier sentence.

Orders Made

Appeal allowed.
Sentences imposed by Judge Ford on 18 June 1999 in respect of counts 2, 3, and 4 quashed.
In lieu thereof:
Count 3: 5 years penal servitude, comprising a minimum term of 3 years and 9 months (commencing 21 May 1999, expiring 20 February 2003) and an additional term of 1 year and 3 months (commencing 21 February 2003).
Counts 2 and 4: fixed terms of 3 years and 9 months each, commencing 21 May 1999 and expiring 20 February 2003.
Sentences imposed by Judge Ford in respect of counts 1, 5, and 7 confirmed.
All sentences to be served concurrently.

Key Takeaways

An offender's ill health is always a relevant sentencing consideration, but the mitigating weight it attracts depends on adequate evidence of the illness, its severity, and its specific effects on conditions of imprisonment. Bare or minimal medical reports may not suffice.
Where a sentencing court cannot be satisfied that the prison system would fail to provide adequate medical care, the basis for a substantial health-related discount is significantly weakened.
General deterrence carries particular importance when sentencing for child sexual offences, especially where the offender occupied a position of trust and authority over the victim within a family unit.
The threshold for a successful Crown appeal against inadequacy of sentence is high: the sentence must be so far outside accepted sentencing standards as to indicate an error in principle, not merely a difference in judgment about quantum.
On resentencing following a successful Crown appeal, the Court of Criminal Appeal is required to factor in the double jeopardy to which the offender is exposed, with that consideration pointing toward the lower end of the appropriate sentencing range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61E(1), 66C, 71 (some since repealed)

Cases
- Everett v The Queen (1994) 181 CLR 295
- Griffiths v The Queen (1977) 137 CLR 293
- House v The King (1936) 55 CLR 499
- R v Skinner (1994) 72 A Crim R 151
- R v Sopher (1993) 70 A Crim R 570
- R v Smith (1987) 44 SASR 587
- R v Dodd (1991) 57 A Crim R 349
- R v Gebrail (unreported, CCA, 18 November 1994)
- R v Hudson (unreported, CCA, 30 July 1998)
- R v Bamford (unreported, CCA, 23 July 1991)
- R v PWH (unreported, CCA, 20 February 1992)
- R v L (unreported, CCA, 17 June 1996)
- R v Barbara (unreported, CCA, 24 February 1997)