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Court of Criminal Appeal 12 October 2001

Regina v Andrews

[2001] NSWCCA 428

Sexual offencesAssault & violenceFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE SPECIAL CIRCUMSTANCES

Citation: Regina v Andrews [2001] NSWCCA 428
Court: New South Wales Court of Criminal Appeal
Date: 12 October 2001
Judge(s): Grove J, Howie J

Background

The applicant was sentenced in the Newcastle District Court after pleading guilty mid-trial to a charge of threatening a victim with an offensive weapon and then having sexual intercourse without consent. The offending involved the applicant punching the victim repeatedly and threatening to slit her throat while gesturing toward a Samurai-style sword, compelling her to perform fellatio. The applicant and victim had been in an on-again, off-again de facto relationship.

The sentencing judge also dealt with a separate assault occasioning actual bodily harm charge involving the same victim, and took into account three drug supply offences on a Form 1 schedule. The overall sentence was six years imprisonment with a non-parole period of four and a half years, commencing August 1999.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge gave sufficient weight to the guilty plea, particularly where no quantified discount was stated on the record
  • Whether the sentence was manifestly excessive, including whether the nature of the sexual act (fellatio rather than penile penetration) should be treated as inherently less serious
  • Whether the sentencing judge erred in refusing to find special circumstances that would justify reducing the non-parole period below the standard proportion

Decision

On the guilty plea ground, the Court of Criminal Appeal found no error. The sentencing judge had expressly acknowledged the plea, and also noted that the late plea had spared the victim the ordeal of giving evidence. The fact that no numerical discount was published in the remarks on sentence did not demonstrate error, particularly given the sentence was imposed before the Court's guidance in R v Thomson on quantifying such discounts.

On manifest excess, the Court rejected the submission that fellatio is inherently less serious than other forms of penetration. Grove J acknowledged a passing observation to that effect made in R v O'Donnell but declined to treat it as a legal principle. In the Court's view, the seriousness of a sexual act derives from the circumstances of the particular case rather than the nature of the act itself. Here, the conduct was plainly intended to humiliate and dominate the victim, placing it at a high order of criminality. The sentence was not manifestly excessive.

On special circumstances, the Court confirmed that a sentencing judge's determination on this question is a finding of fact, not a question of law. Grove J endorsed remarks made by Howie J in R v Keong, emphasising that the existence of comparable findings in other cases does not establish error by a sentencing judge. The fact that a different result was open on different facts, or that another court made a different discretionary judgment, does not make the finding reviewable. On the material before the sentencing judge, including the applicant's lack of remorse and poor history of compliance with prior recognizances and parole, the refusal to find special circumstances was open.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the seriousness of a non-consensual sexual act is assessed by reference to the circumstances of the offending, not the anatomical nature of the act itself. An earlier observation suggesting fellatio is "normally less criminal" than other forms of penetration was expressly declined as a statement of legal principle.
  • In dismissing the manifest excess ground, the Court placed particular weight on the aggravating context of the offending, including the use of a weapon, physical violence, and conduct plainly directed at humiliation and domination rather than sexual gratification.
  • A sentencing judge's determination that special circumstances do or do not exist is a finding of fact. The Court of Criminal Appeal reiterated that it will not interfere with such a finding merely because another court reached a different conclusion in a factually similar case.
  • No error is established simply because a sentencing judge did not expressly quantify the discount applied for a guilty plea, provided the plea was genuinely taken into account in the remarks on sentence.
  • Where a plea of guilty is entered late but nonetheless spares the complainant from giving evidence about the offending, a sentencing judge is entitled to treat that factor as relevant to the weight given to the plea.

Legislation and Cases Referenced

Cases:
- R v Thomson (2000) 49 NSWLR 383
- R v O'Donnell, CCA, unreported, 1 July 1994
- R v Keong [2001] NSWCCA 416

Legislation: No specific legislation was identified in the text of the decision.