Citation: KJW v R [2002] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 28 March 2002
Judge(s): Studdert J; Smart AJ
Background
The applicant had pleaded guilty in the District Court at Campbelltown to two counts of aggravated indecent assault and one count of aggravated sexual assault. All three offences were committed against his stepchildren: the indecent assaults against his stepdaughter in 1992 and 1993 when she was aged 11 and 12, and the sexual assault against his stepson in 1998 when he was aged 12. The circumstances of aggravation arose from the applicant's position of authority over the children and their ages at the time of the offences.
Following disclosure by the stepdaughter in late 1994 or early 1995, the applicant separated from the family for a period and underwent psychiatric treatment with Dr Schultz. He subsequently reconciled with and moved back into the family home in 1996, before the third offence was committed against his stepson. No criminal proceedings arose from the earlier disclosures.
At sentencing, Sorby DCJ received favourable evidence from a psychotherapist, a probation and parole officer, and other witnesses about the applicant's efforts at rehabilitation, his employment history, and his lack of prior criminal record. The applicant sought leave to appeal against the sentences imposed, arguing they were manifestly excessive.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly excessive
- Whether the sentencing judge had erred in principle or misunderstood any relevant facts
- Whether the interruption to the applicant's rehabilitation caused by imprisonment warranted a reduction in sentence
Decision
Studdert J granted leave to appeal but dismissed the appeal. His Honour found that the sentencing judge had correctly characterised the offences as "objectively very serious," having regard to the ages of the victims and the applicant's abuse of his position of trust as a stepfather. The sentencing judge had also properly directed himself to the importance of general deterrence for offences of this kind.
The Court found no error of principle in the remarks on sentence and no misunderstanding of any relevant fact. The applicant's counsel had pointed to sentencing statistics for offences under ss 61J and 61M of the Crimes Act, but the Court found those statistics did not demonstrate that the sentences fell outside the permissible range.
On the question of rehabilitation, the Court noted that evidence was before the sentencing judge from a psychologist indicating that offence-specific treatment was available within the prison system. Critically, there was no evidence before the sentencing judge that imprisonment would be destructive of the rehabilitation already achieved, nor that any delay in resuming treatment would make full rehabilitation harder. The applicant's rehabilitation was only one of several sentencing considerations that the judge was required to balance.
The overall sentence of four years and nine months, with a non-parole period of two years and nine months, was found to be within the permissible range. Smart AJ agreed with Studdert J's reasons and conclusions.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will only interfere with a sentence on the ground that it is manifestly excessive, absent any identifiable error of principle or misstatement of fact.
- A sentencing judge's correct characterisation of child sexual offences as "objectively very serious," with reference to the victims' ages and the offender's abuse of a position of authority, was upheld as consistent with principle.
- Rehabilitation, while a relevant sentencing consideration, does not override other sentencing objectives such as general deterrence, particularly where no evidence establishes that imprisonment will destroy rehabilitation progress or reduce prospects of future recovery.
- Where an offender reoffended against a second victim after earlier counselling and reconciliation following disclosure of prior offences, the sentencing court was entitled to treat that history as a significant aggravating feature.
- Statistical comparisons with other sentences under the same provisions will not demonstrate manifest excess unless they show the sentence actually fell outside the permissible range.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 61J (aggravated sexual assault, maximum 20 years)
- Crimes Act (NSW), s 61M (aggravated indecent assault, maximum 7 years)
Cases:
- Cameron v The Queen [2002] HCA 6