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Court of Criminal Appeal 17 May 2001

R v Dawson (No 2)

[2001] NSWCCA 186

Sexual offencesDomestic & family violence
SENTENCE AGGRAVATED SEXUAL ASSAULT WHETHER SENTENCING MISCARRIED WHETHER SENTENCE EXCESSIVE

Citation: R v Dawson (No 2) [2001] NSWCCA 186
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2001
Judge(s): Giles JA; James J; Hulme J

Background

The appellant had previously been convicted in the District Court on two charges of aggravated sexual assault against his estranged wife. The offences occurred in June 1997 when the appellant, who had been drinking, threatened his former partner with a Stanley knife at her flat and forced her to perform oral sex and then to engage in vaginal intercourse against her expressed refusals. The complainant sustained superficial marks to the throat and called police after the appellant fell asleep.

The appellant and complainant had been in a de facto relationship and then a marriage for approximately 15 years, and had a young, disabled child together. They had separated about ten months before the offences, but the appellant had been visiting the flat on weekends for access arrangements. There had been some occasional physical intimacy after separation, though the precise extent was disputed.

The District Court judge sentenced the appellant to concurrent sentences of six years penal servitude, consisting of a minimum term of four years commencing 13 November 1998 with an additional term of two years. The appeal against conviction was dismissed separately. This judgment addressed only the application for leave to appeal against sentence.

  • Whether the sentencing judge's characterisation of the offences as sitting "just slightly higher than the bottom end of the range" for the offence under s 61J of the Crimes Act 1900 was correct, and what that characterisation meant in context.
  • Whether the sentence of six years (minimum four years) was excessive given the prior relationship between the appellant and complainant, the absence of premeditation, the appellant's otherwise blameless character, and the low prospect of reoffending.
  • Whether the sentencing process miscarried such that the Court of Criminal Appeal should resentence the appellant.

Decision

Giles JA, delivering the leading judgment, held that the sentencing judge had not placed the offences at the bottom end of all offences under s 61J generally. Rather, his Honour had compared the offences within the more specific category of knifepoint sexual assaults, distinguishing cases where actual bodily harm was inflicted from those, like this one, where the knife was used as a threat. The sentence imposed was consistent with that analysis and with the comparable authority of R v Harvey, where an analogous sentence had been imposed on Crown appeal.

Giles JA rejected the submission that the prior relationship between the parties operated as a significant mitigating factor. The court drew on R v O'Grady, affirming that when a personal relationship breaks down, the other person retains an unqualified entitlement to personal safety, and that consent given on prior occasions has no bearing on a refusal clearly made at the time of the offending. The appellant's good character, lack of premeditation, and low risk of reoffending were acknowledged, but were not sufficient to render the sentence excessive in light of the gravity of the conduct.

Hulme J reached a different conclusion on the sentencing outcome. His Honour considered that the six-year sentence did not properly reflect the sentencing judge's own finding that the offence fell only slightly above the bottom of the range, particularly given the relationship between the parties, the absence of evidence of lasting harm to the complainant beyond what could be inferred, and the other mitigating findings. Hulme J would have resentenced the appellant to concurrent total sentences of four years with a non-parole period of three years.

The appeal was nonetheless dismissed, with leave to appeal granted. The majority did not find the sentence manifestly excessive, and the court's final orders maintained the sentence as imposed by the District Court.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.
  • The sentence imposed by Dodd DCJ stood: concurrent sentences of six years penal servitude, consisting of a minimum term of four years commencing 13 November 1998 (expiring 12 November 2002) with an additional term of two years, the appellant being eligible for release on parole on 12 November 2002.

Key Takeaways

  • A prior consensual sexual relationship between an offender and a complainant carries no mitigating weight when the complainant has clearly refused consent on the occasion of the offence. The Court of Criminal Appeal affirmed that a history of intimacy cannot override a refusal made at the time.
  • Under s 61J of the Crimes Act 1900, aggravated sexual assault by threat with an offensive weapon carries a maximum of 20 years imprisonment. Sentencing comparisons within that range must distinguish between offences involving actual bodily harm and those involving threats alone.
  • Where a sentencing judge characterises an offence as near the bottom of the range, that assessment must be understood in context. The Court of Criminal Appeal held that Dodd DCJ was comparing the offence within the subcategory of knifepoint sexual assaults, not across the entire spectrum of s 61J offences.
  • No error was established in the majority's view sufficient to warrant intervention, notwithstanding that the appellant had no prior criminal history, the offences were unpremeditated, and the risk of reoffending was assessed as negligible.
  • Hulme J dissented on sentence, finding that the cumulative weight of mitigating factors argued for a lower sentence of four years total with a three-year non-parole period, though this view did not prevail.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)

Cases cited:
- R v Harvey (CCA, 23 August 1996, unreported)
- R v O'Grady (CCA, 13 May 1997, unreported)
- R v Smith (CCA, 27 May 1996, unreported)
- R v Dawson (CCA, 19 May 1998, unreported) (earlier appeal)
- DPP v Cowey (CCA, 18 July 1995, unreported)
- R v Brooking (CCA, 7 December 1994, unreported)
- R v Hunter (CCA, 12 August 1992, unreported)
- R v Kalache [2000] NSWCCA 2
- R v Kay [2000] NSWSC 716
- R v Lord (1986) 131 LSJS 420
- R v Van Hung Truong (CCA, 8 December 1997, unreported)
- R v Wotherspoon (CCA, 4 December 1992, unreported)