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Court of Criminal Appeal 9 April 2001

R v MLW

[2001] NSWCCA 133

Sexual offences
APPEAL AGAINST SEVERITY OF SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT MINORS ALCOHOL ABUSE

Citation: R v MLW [2001] NSWCCA 133
Court: New South Wales Court of Criminal Appeal
Date: 9 April 2001
Judge(s): Dowd J; Smart AJ

Background

The applicant, identified only by initials to protect his identity as a juvenile, was fifteen years old at the time of the offence. He pleaded guilty in the District Court at Lismore to a charge of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, carrying a maximum penalty of fourteen years imprisonment.

The sentencing judge, Ducker DCJ, imposed a three-year term of imprisonment with a non-parole period of one year and eight months, directed to be served in a detention centre. The sentence included orders for supervision, counselling, drug and alcohol treatment, and participation in a sexual offender programme upon release on parole.

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was excessive, arguing that the sentencing judge had failed to give adequate weight to mitigating factors, particularly his youth and his state of intoxication at the time of the offence.

  • Whether the sentence of three years imprisonment with a non-parole period of one year and eight months was manifestly excessive for a fifteen-year-old first-time offender who pleaded guilty.
  • Whether the principles in R v GDP (1991) 53 A Crim R 112, concerning the sentencing of juvenile offenders, required a lighter sentence in these circumstances.
  • Whether the applicant's intoxication and Aboriginality, considered through the lens of R v Fernando (1992) 76 A Crim R 58, constituted extenuating circumstances warranting a reduction in the sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was not manifestly excessive. The Court noted that no error of law or fact was identified in the sentencing judge's remarks, and the applicant's case rested solely on the contention that insufficient weight had been given to mitigating factors.

On the question of intoxication and Aboriginality, the Court rejected the submission that R v Fernando operated as a general rule that an Aboriginal offender's intoxication will necessarily result in a lower sentence. The Court found no extenuating circumstances in the evidence that would engage the Fernando principles. It noted that this was the applicant's first experience with alcohol, and his circumstances in that respect were no different from any other young person drinking for the first time. The applicant had also come from a stable, caring home environment provided by his grandparents.

The Court accepted that the sentencing judge had carefully considered all relevant factors, including the guilty plea, the applicant's youth, and the question of intoxication. The sentencing judge had applied a finding of special circumstances to ensure that sixteen of the thirty-six months of the term were devoted to post-release rehabilitation. The Court emphasised, citing R v Hartikainen, that non-consensual intercourse is itself an extreme form of violence and one the community expects courts to treat seriously.

The underlying offending was described by both the sentencing judge and the Court of Criminal Appeal as a determined, violent, and merciless attack. The Court concluded that while the applicant's age had already led to a significant reduction from what an adult offender would have received, there was no basis to interfere further with the sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal refused.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that R v Fernando does not stand for the proposition that an Aboriginal offender's intoxication will automatically reduce the sentence that would otherwise be imposed; the Fernando principles require identifiable extenuating circumstances connected to the offender's background and community context.
  • The Court of Criminal Appeal affirmed the principle from R v Hartikainen that non-consensual sexual intercourse is an extreme form of violence, and courts are expected to reflect community expectations of seriousness in the sentence imposed.
  • A guilty plea, youth, and first-time intoxication were each taken into account, but none individually or together rendered the sentence manifestly excessive where the offending was of considerable gravity and sustained over a significant period.
  • A finding of special circumstances in the sentencing structure, which extended the balance of the term available for post-release supervision, was accepted as a legitimate mechanism to support rehabilitation for a juvenile offender without reducing the head sentence.
  • No error of law or fact by the sentencing judge was required to be identified; the applicant's challenge rested entirely on the weight given to mitigating factors, a threshold the Court found was not met on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 11 and 19

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v GDP (1991) 53 A Crim R 112
- R v Hartikainen (Unreported, NSWCCA, 8 June 1993, Gleeson CJ, Meagher JA and Newman J)