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Court of Criminal Appeal 21 November 2001

R.V. SCHLENERT

[2001] NSWCCA 481

Sexual offences
CRIMINAL LAW SENTENCING STALE OFFENCE CRIMINAL LAW SENTENCING WHETHER CONVICTION WARRANTED

Citation: R v Schlenert [2001] NSWCCA 481
Court: NSW Court of Criminal Appeal
Date: 21 November 2001
Judge(s): Barr J, Adams J

Background

The appellant pleaded guilty in the Local Court to an offence of carnal knowledge committed in 1980, when he was 14 or 15 years old. The victim was a girl aged 12 or 13 at the time. The matter was not reported to police at the time, the victim's mother having decided against doing so, and the appellant had apologised to the complainant shortly after the incident.

The matter only came to police attention in October 1998, nearly 18 years later, after the complainant's husband discovered what had happened. Even then, police did not interview the appellant until October 2000, a further two years on. He was charged only after making full admissions. By the time of sentencing, the appellant was a married man with children, in stable employment, and assessed as presenting a low risk of sexual reoffending.

The District Court convicted the appellant and ordered him to enter a 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. The appellant sought leave to appeal, arguing the sentencing judge should instead have dismissed the charge without recording a conviction under s 10 of the same Act.

  • Whether the sentencing judge erred in treating the lengthy delay in complaint as irrelevant to the appellant's favour
  • Whether the further two-year delay by police in charging the appellant after the complaint was made should have been taken into account
  • Whether the extreme staleness of the offence warranted a more lenient outcome
  • Whether, in all the circumstances, recording a conviction was warranted or whether dismissal under s 10 was the appropriate order

Decision

The Court of Criminal Appeal held that the sentencing judge had erred on multiple grounds. First, his Honour was wrong to state categorically that the delay in reporting the offence could not benefit the appellant. While delay in complaint cannot assist offenders where the delay is attributable to fear or intimidation by them, there is no universal rule to that effect. Each case must be assessed on its own facts, and the delay here was entirely unconnected to any conduct by the appellant.

Second, after the matter was eventually raised with police in 1998, authorities took a further two years to charge the appellant. The Court held this prosecutorial delay was an additional factor that should have counted in his favour, citing R v Aliperti.

Third, the extreme staleness of the offence was a matter the sentencing judge was obliged to consider. The Court observed that the appellant posed no risk to the community and had, over the intervening decades, established a responsible and well-regarded life in his family, workplace, and broader community. Barr J concluded that the community had no interest in further stigmatising the appellant for what amounted to a boyhood offence, citing R v DJS.

The Court intervened and substituted an order dismissing the charge without recording a conviction, under s 10 of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; orders of the District Court quashed
  • Charge dismissed without conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • There is no universal rule that delay in complaint cannot benefit an offender at sentencing; the relevance of delay depends on the particular facts and circumstances of each case, including whether the delay was attributable to the offender's own conduct.
  • Prosecutorial delay, separate from any delay in complaint, is a recognised factor capable of operating in an offender's favour at sentencing.
  • Where an offence is strikingly stale, a sentencing court is obliged to take that staleness into account as a distinct consideration.
  • Dismissal without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 may be appropriate where the offending is remote in time, the offender was a child when the offence occurred, they present no ongoing risk, and no community interest exists in further stigmatisation.
  • An excellent post-offence record spanning many years, stable family circumstances, and a low assessed risk of reoffending were all relevant to the Court of Criminal Appeal's conclusion that conviction was not warranted in this case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 and 10

Cases
- R v Moon [2000] NSWCCA 534
- R v Aliperti [2000] NSWCCA 315
- R v DJS [2001] NSWCCA 189