Citation: TJH v R [2001] NSWCCA 433
Court: NSW Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Wood CJ at CL; Grove J
Background
The appellant pleaded guilty to a series of sexual offences against two child victims: his daughter and his niece. The offences against his daughter occurred between 1993 and 1997, when she was aged between five and eight years, and included aggravated sexual assault and multiple counts of aggravated indecent assault. The offences against his niece were committed earlier, between 1985 and 1987, when she was eight years old or younger, and involved sexual intercourse and indecent assault.
Following guilty pleas, the appellant was initially dealt with on a non-custodial basis and directed to complete the Cedar Cottage therapeutic programme for sex offenders. He subsequently failed to complete the programme, breaching his undertakings in several respects, including failing to validate his victims' accounts, neglecting required programme tasks, and withholding information about his internet use.
Breach proceedings were commenced and the appellant was called up for sentencing in the District Court before Gibson DCJ, who imposed cumulative custodial sentences totalling approximately nine years and nine months with a non-parole period. The appellant then sought leave to appeal against that sentence in the Court of Criminal Appeal.
Legal Issues
- Whether the total sentences imposed, including their accumulation, were manifestly excessive
- Whether the sentencing judge used an incorrect starting point when calculating the discount for mitigating factors such as guilty pleas
- Whether the sentencing judge took too narrow a view of "special circumstances" under sentencing law, potentially warranting a longer parole period relative to the head sentence
Decision
The Court rejected the argument that the sentences were manifestly excessive. The appellant accepted that statistical sentencing data from the Judicial Commission showed the individual sentences were within range. His counsel sought to demonstrate error by working backwards to reconstruct what the "starting point" must have been before applying a 30% discount for the guilty plea and mitigating factors, arguing this implied an excessive starting point. Wood CJ at CL was unpersuaded, finding no error in the sentencing judge's approach and no basis for concluding the overall sentence was excessive given the seriousness and nature of the offending.
On the accumulation of sentences, the Court found the approach adopted by Gibson DCJ was consistent with established authority and disclosed no error of sentencing principle. Special circumstances had been found by the sentencing judge, confined to the fact of accumulation, and this was reflected in the structure of the sentences as imposed.
On the question of special circumstances, the appellant submitted that further circumstances warranted recognition, including his age (49 at sentencing), his health, his first experience of imprisonment, and his partial progress through Cedar Cottage. The Court declined to intervene. Wood CJ at CL observed that none of those factors, individually or together, provided a sound basis to reduce the non-parole period, and that the two-year period available for release on parole adequately reflected the need for supervision and rehabilitation.
The Court also declined to resolve a contested question of sentencing principle about what may properly constitute "special circumstances." Wood CJ at CL noted that a prior decision from a two-judge bench purporting to adopt a more liberal approach could not be regarded as authoritative, and that settling this principle was reserved for a five-judge bench. Regardless, the Court found no occasion to intervene on the facts of this case under either the stricter or more liberal approach.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- No error of sentencing principle was established where the sentencing judge's individual sentences fell within the statistical range for the relevant offences and the method of calculating the plea discount was not shown to be flawed.
- Accumulation of sentences for separate series of child sexual offences against different victims, committed over different periods, was held to be appropriate and consistent with authority.
- A two-judge bench decision purporting to settle a contested point of sentencing principle, where three-judge benches had expressed differing views, was treated as non-authoritative by the Court of Criminal Appeal in this matter.
- The question of what factors may properly constitute "special circumstances" under sentencing law remained reserved for determination by a five-judge bench at the time of this decision.
- In dismissing the appeal, the Court confirmed that reducing the proportions between the non-parole period and the head sentences would have produced a minimum period of imprisonment falling below what the totality of the criminality required.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61D(1A), 61E, 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 6
- Pre-trial Diversion of Offenders Act 1985 (NSW), s 33
Cases:
- R v Clarke (1995) 78 A Crim R 226
- R v Simpson, NSWCCA, 18 June 1992
- R v Hameed [2001] NSWCCA 287
- Morrissey, NSWCCA, 15 July 1994
- McDonald, NSWCCA, 12 October 1998