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Court of Criminal Appeal 29 June 2001

Regina v Astles

[2001] NSWCCA 235

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER MANIFESTLY EXCESSIVE GUILTY PLEA.

Citation: Regina v Astles [2001] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 29 June 2001
Judge(s): Simpson J; Smart AJ

Background

The applicant pleaded guilty in the District Court to a serious cluster of offences arising from events in May 1999: one count of detaining a person for advantage, two counts of sexual intercourse without consent (rape), and one count of aggravated break and enter. A further five offences, including additional counts of rape, break and enter, motor vehicle theft, and dangerous driving, were taken into account on a schedule at sentencing.

The offending involved the applicant confining a young woman against her will over an extended period, raping her on multiple occasions during that time, and subsequently breaking into the home of an elderly woman in a rural area. The crimes were committed over a period of approximately two weeks.

District Court Judge Nield sentenced the applicant on 2 March 2000 to a total term of thirteen years and four months, comprising a minimum term of ten years and an additional term of three years and four months. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the total sentence of thirteen years and four months was manifestly excessive given the circumstances of the offending and the applicant's personal circumstances
  • Whether the sentencing judge gave sufficient weight to the applicant's guilty pleas and the discount to be applied for those pleas
  • Whether adequate weight was given to the applicant's expressions of remorse
  • Whether the applicant's psychological or emotional condition at the time of the offending warranted a reduction in the emphasis placed on general deterrence

Decision

Simpson J, with Smart AJ agreeing, dismissed the appeal. The court found that the sentencing judge had correctly applied the principles in Pearce v R by fixing individual sentences for each offence before addressing questions of concurrence and totality. No error was identified in that structural approach.

On the question of the guilty plea discount, the court noted that the sentencing judge had made findings consistent with the principles in R v Thomson and Houlton, which address the appropriate discount for guilty pleas. The court was satisfied that the judge had properly taken the pleas into account as mitigating factors.

The court accepted that the evidence supporting a finding of genuine remorse was qualified. Simpson J observed that the primary value of remorse in sentencing lies in its capacity to demonstrate insight into the offending and to predict a reformed outlook. The sentencing judge was not satisfied the applicant's remorse was of that character, and the Court of Criminal Appeal agreed that assessment was correct.

Regarding the applicant's psychological and emotional condition, the court declined to apply the principle from R v Letteri, which permits reduced emphasis on general deterrence where an offender's disability contributed to the offending. The sentencing judge had expressly rejected the proposition that the applicant's emotional problems caused the criminal conduct, and Simpson J agreed that the applicant's culpability was not diminished. The sentences were found to be well within the available range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a total sentence of thirteen years and four months, with a minimum term of ten years, was within the available range for a course of offending involving kidnapping, multiple rapes, and associated property crimes.
  • The reduced emphasis on general deterrence available under R v Letteri applies only where an offender's psychological or emotional condition is shown to have contributed causally to the offending; a mere history of emotional difficulties is insufficient.
  • Remorse carries mitigating weight in sentencing primarily where it demonstrates genuine insight into the offending and supports a prediction of rehabilitation; where a sentencing judge finds those qualities absent, a Court of Criminal Appeal will not readily interfere with that assessment.
  • Proper application of Pearce v R requires a sentencing court to fix individual sentences for each offence before determining questions of concurrence and totality, rather than approaching the exercise as one of fixing a global sentence.
  • A guilty plea remains a relevant mitigating factor, but its weight depends on the circumstances, and its presence does not automatically render a substantial sentence manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 21 (now s 33 of the Crimes (Sentencing Procedure) Act 1999)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 61I, 90A, 112(1)
- Traffic Act 1909 (NSW)

Cases:
- Pearce v R (1998) 194 CLR 610
- R v Thomson and Houlton [2000] 40 NSWLR 383
- R v Letteri (unreported, NSWCCA, 18 March 1992)