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3
Court of Criminal Appeal 30 March 2001

R v H

[2001] NSWCCA 117

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SEXUAL ASSAULT INDECENT ASSAULT OF A CHILD FAILURE TO QUANTIFY DISCOUNT

Citation: [2001] NSWCCA 117
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2001
Judge(s): Wood CJ at CL; Greg James J

Background

The applicant, a stepfather, pleaded guilty in the District Court at Gosford to three counts of sexual intercourse with a child aged between 10 and 16 years in circumstances of aggravation, and one count of committing an act of indecency with the same victim. The victim was his stepdaughter, placing her under his authority for the purposes of the relevant charges. Six further offences were listed on a Form 1 (a sentencing document that allows related uncharged matters to be taken into account).

The offending came to light only because the applicant voluntarily disclosed his conduct to his wife, leading to his confession to police. He gave evidence at the sentencing hearing and did not dispute the acts described in the victim's statements. The sentencing judge imposed an effective head sentence of seven and a half years imprisonment.

The applicant sought leave to appeal against that sentence on three grounds: that he was sentenced on unparticularised facts, that uncharged offences were improperly treated as aggravating factors, and that insufficient weight was given to his guilty pleas and voluntary confession.

  • Whether the applicant was sentenced on a factual basis that differed from what was particularised in the indictment (specifically, the victim's age at the time of one offence)
  • Whether the sentencing judge improperly treated uncharged acts from the victim's statements as circumstances of aggravation, effectively punishing the applicant for offences for which he had not been charged
  • Whether the sentencing judge gave proper weight to the applicant's early guilty pleas and voluntary disclosure of his offending, and whether the failure to expressly quantify the discount given constituted appellable error

Decision

Ground 1: Age discrepancy in the indictment. The indictment stated that one offence occurred when the victim was 14, but the sentencing judge made reference to the victim's own account that she was 13 at the time. The Court of Criminal Appeal found this was not a case where the precise date was an essential ingredient of the offence. The offence remained the same regardless of whether the victim was 13 or 14 at the relevant time, so no defect in the indictment arose and no sentencing error was established.

Ground 2: Uncharged offences taken into account. The applicant argued that the sentencing judge had imposed an additional increment of punishment for acts described in the victim's statements that were not the subject of charges. The Court found no support for this assumption in the sentencing judge's reasons. Placing the wider sexual history before the court was entirely appropriate: it explained the nature of the relationship, provided context for the charged offences, and addressed any suggestion that the conduct was isolated. The Court confirmed that this use of background evidence does not amount to sentencing for uncharged offences.

Ground 3: Pleas and voluntary disclosure. The Court accepted that the sentencing judge had acknowledged the significance of the guilty pleas and the applicant's voluntary disclosure to police. Although the sentencing judge did not expressly quantify the discount applied for those matters, this omission did not in itself constitute appellable error. The sentencing occurred before the guideline judgment in Thompson and Houlton (2000), which first encouraged courts to expressly quantify plea discounts. The Court assessed whether the overall sentence, viewed against all objective and subjective circumstances, fell within a legitimate range. It concluded that the effective sentence reflected an appropriate reduction and was well within that range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Sentences confirmed

Key Takeaways

  • A discrepancy between the age stated in an indictment and the age referred to at sentencing does not produce a defect or a sentencing error where age is not an essential ingredient that changes the nature of the offence.
  • Where a sentencing judge's reasons contain no indication that uncharged acts were used to increase the sentence, a bare assertion that punishment was imposed for those acts will not be accepted on appeal.
  • Placing a broader history of sexual conduct before a sentencing court is permissible to contextualise charged offences and to show they were not isolated, provided that history is not used as a basis for additional punishment.
  • A failure to expressly quantify the discount given for an early guilty plea does not automatically constitute appellable error, particularly where sentencing preceded the guideline judgment in Thompson and Houlton that encouraged this practice.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that sentencing cannot be reduced to a statistical exercise, and that sentencing statistics serve only as cautious background reference, not as determinative benchmarks.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Criminal Procedure Act 1986 (NSW), s 58(9)

Cases
- Olbrich (1999) 199 CLR 270
- Stringer (2000) NSWCCA 293
- H (1980) A Crim R 53
- RNS (1999) NSWCCA 122
- GWE, NSWCCA, 12 March 1997
- H (1994) 74 A Crim R 41
- JCW (2000) NSWCCA 209
- Ellis (1986) 6 NSWLR 603
- Thompson and Houlton (2000) 49 NSWLR 338
- Ibbs (1987) 163 CLR 447