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Court of Criminal Appeal 23 March 2001

R v CAMPBELL

[2001] NSWCCA 89

Sexual offences

Citation: R v Campbell [2001] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 23 March 2001
Judge(s): Studdert J, Barr J

Background

The applicant, a grandfather, pleaded guilty in the District Court to eleven charges arising from sexual offending against his four-year-old granddaughter. The offences occurred over approximately five days in early 1999 while he was caring for the child. They included four acts of cunnilingus, five acts of indecent assault, and two acts of indecency.

The applicant had volunteered himself to police after his daughter confronted him, made a full electronically-recorded confession, and remained in custody from the time of his arrest. He had also commenced psychiatric treatment and presented substantial evidence of contrition and early rehabilitation.

At first instance, Bellear DCJ sentenced him to a total effective term of seven and a half years, with a minimum term (non-parole period) of four and a half years. The applicant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge erred by not finding, as an aggravating factor, that the applicant had infected the child with herpes through his conduct
  • Whether the overall head sentence of seven and a half years was excessive having regard to the nature of the offending, the applicant's early guilty plea, and the other favourable subjective features
  • Whether the parole period fixed was sufficient to allow for the rehabilitation the applicant required

Decision

The Court rejected the Crown's submission that the sentencing judge had been wrong to decline to find that the applicant had infected the child with herpes. The Court noted it sits as a court of error, and while the judge's conclusion may have been surprising given the evidence, it was not a finding the Court of Criminal Appeal was entitled to overturn. The sentences were therefore to be assessed without that aggravating factor.

The Court accepted that the sentencing judge correctly identified the gross breach of trust involved and appropriately took into account the potential for long-term psychological harm to the child, even in the absence of proven physical injury beyond the immediate offending.

On the question of excessiveness, the Court found that the favourable subjective features, including the early guilty plea, full cooperation with police, genuine contrition, and early engagement with rehabilitation, warranted a more substantial combined reduction than the sentences reflected. Barr J concluded that the head sentence of seven and a half years suggested either too high a starting point or insufficient weight given to those favourable features.

On resentencing, the Court also considered that the applicant would require ongoing professional counselling, including after release, and that this justified fixing a parole period longer than the statutory minimum of twenty-five percent of the head sentence.

Orders Made

  • Leave to appeal granted
  • Sentences for the first four counts (acts of sexual intercourse) quashed
  • On each of the first four counts, the applicant resentenced to five years' imprisonment commencing 11 February 2000 and expiring 10 February 2005, with a non-parole period of three years expiring 10 February 2003, and a declaration of eligibility for parole on 10 February 2003
  • Remaining sentences (for the indecent assaults and acts of indecency) left undisturbed

Key Takeaways

  • The Court of Criminal Appeal confirmed that it will not disturb a sentencing judge's factual finding simply because the finding is surprising, provided the Crown cannot establish it was an error of law or principle.
  • A sentencing court must give genuine combined weight to multiple favourable subjective factors, including an early guilty plea, voluntary surrender, full admissions, contrition, and early rehabilitation steps. Failing to do so may render a sentence excessive even where the offending is serious.
  • Where the statistics from the Judicial Commission cover a broad range of offending under a single provision, they provide only modest guidance when the conduct charged sits at the less severe end of that range.
  • The length of a parole period may legitimately be set above the minimum where the offender's ongoing rehabilitation needs, including post-release treatment, make a longer supervisory period appropriate.
  • In dismissing the Crown's aggravation argument, the Court reinforced that uncharged or unproven consequences of offending cannot be treated as aggravating factors at sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10)

Cases Cited:
- R v Keith James Bryant, Court of Criminal Appeal, 27 June 1994 (unreported)
- R v Adrian Leonard Levi, Court of Criminal Appeal, 15 May 1997 (unreported)
- R v Benjamin Cecil Page, Court of Criminal Appeal, 25 February 1994 (unreported)
- R v Terrance George Skinner, Court of Criminal Appeal, 28 October 1993 (unreported)
- R v Thomson & Anor [2000] NSWCCA 309
- R v KBW, Court of Criminal Appeal, 26 August 1994 (unreported)