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Court of Criminal Appeal 21 February 2001

R v MA

[2001] NSWCCA 30

Sexual offences

Citation: R v MA [2001] NSWCCA 30
Court: New South Wales Court of Criminal Appeal
Date: 21 February 2001
Judge(s): Grove J, Hulme J

Background

The appellant was sentenced in the District Court by McGuire DCJ following guilty pleas to nine offences of sexual assault and indecent assault committed against two victims: his blind stepdaughter (between 1988 and 1994) and his biological daughter (in 1997). The offending spanned approximately a decade and involved multiple incidents against each child during distinct periods.

McGuire DCJ imposed a total sentence of five years' imprisonment, comprising a fixed term of three years commencing 6 June 2000 (for the offences against the stepdaughter) followed by a two-year term with a six-month non-parole period commencing 6 June 2003 (for the offences against the younger daughter). The judge acknowledged the guilty pleas, the appellant's remorse, and took into account pre-sentence custody.

The appellant sought leave to appeal against the sentences on several grounds, contending the total sentences were manifestly excessive and that the sentencing process was affected by a number of errors.

  • Whether the sentencing judge understated the period of pre-sentence custody by describing it as "approximately six months"
  • Whether the judge failed to make a proper finding of special circumstances, and whether the non-parole period adequately reflected any such finding
  • Whether the victim impact statement, particularly a detailed annexure prepared by a sexual assault counsellor, caused the sentencing court to take into account impermissible material
  • Whether the sentences imposed were manifestly excessive in all the circumstances

Decision

On the pre-sentence custody ground, the Court found no error. The period of custody attributable to the present offences was approximately six and three-quarter months, making the judge's description of "approximately six months" accurate enough to withstand challenge.

On the special circumstances ground, the Court noted that the sentencing judge did not formally find special circumstances but implicitly acknowledged the concept by fixing a non-parole period of six months within a two-year sentence, departing from the standard statutory ratio. The judge's stated rationale was to allow sufficient time for alcohol rehabilitation on parole. The Court accepted this approach and rejected the ground.

Regarding the victim impact statement, the Court found the counsellor's annexure was problematic. It referred to conduct beyond the charged offences, displayed obvious partisanship, and even included a recommendation directed at sentencing and compensation. The Court accepted this constituted some miscarriage in the sentencing process, and acknowledged similar concerns about the victim's own statement to a lesser degree. However, the Court concluded this did not warrant intervention.

On manifest excess, the Court rejected the submission that the sentences were too high. It observed that the offending involved two victims, distinct periods of conduct, and more than one offence against each victim. Cumulation of sentences was clearly warranted. Even allowing for a guilty plea discount, the Court found nothing like the suggested twenty-five percent reduction was merited on the facts, and concluded the sentences were by no means excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a description of pre-sentence custody as "approximately" a given period will not constitute error where the actual figure is close to that description and the difference is immaterial.
  • A sentencing judge need not make an explicit finding of special circumstances provided the non-parole period actually imposed reflects a departure from the standard statutory ratio and the reasoning discloses a relevant basis for that departure.
  • Where a victim impact statement annexure refers to conduct beyond the charged offences and displays partisanship, this may amount to a miscarriage in the sentencing process; however, the appellate court retains discretion to decline to interfere if the sentence ultimately imposed is not excessive when assessed against the full criminality.
  • Accumulation of sentences across distinct victims and separate periods of offending was treated as clearly appropriate in this case.
  • Under s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal will not substitute a lesser sentence unless it is of the opinion that a lesser sentence is warranted in law, even where some aspect of the sentencing process has miscarried.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio)
- Criminal Appeal Act (NSW), s 5(1) and s 6(3) (powers of the Court of Criminal Appeal on sentence appeals)

Cases:
- Regina v Bakewell (unreported, NSW Court of Criminal Appeal, 27 June [date not stated in text]) (cited in relation to victim impact statement principles)
- Regina v Thompson (guideline judgment on guilty plea discounts)