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Court of Criminal Appeal 28 March 2002

Regina v ICC

[2002] NSWCCA 119

Sexual offences

Citation: Regina v ICC [2002] NSWCCA 119
Court: New South Wales Court of Criminal Appeal
Date: 28 March 2002
Judge(s): Studdert J; Smart AJ

Background

The appellant was the father of a female victim who was subject to a prolonged course of sexual abuse spanning nearly four years, from January 1997 to November 2000. The offending occurred at the family home and involved aggravated sexual intercourse without consent, aggravated indecent assault, and related conduct, all committed against the appellant's daughter. The appellant pleaded guilty upon arraignment and had no prior criminal history.

In the District Court, the sentencing judge imposed concurrent sentences of four years and six months imprisonment with a non-parole period of three years, four months and 13 days on each of two counts of aggravated sexual intercourse without consent, and a concurrent sentence of three years with a non-parole period of two years and three months on one count of aggravated indecent assault. A further 13 charges were taken into account on sentence.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentences were manifestly excessive and that insufficient account had been taken of special circumstances, including the need for extended post-release supervision to support rehabilitation.

  • Whether the sentences imposed were manifestly excessive having regard to the nature and extent of the offending.
  • Whether the sentencing judge failed to allow for special circumstances that would have justified a longer period on parole and a correspondingly shorter minimum term.
  • Whether the sentencing judge gave adequate weight to the prospects of rehabilitation, including the recommendations of a forensic psychiatrist for prolonged supervised parole combined with participation in a sexual offenders programme.
  • Whether service of the sentence in protective custody was a factor requiring a reduction in sentence.

Decision

The Court of Criminal Appeal found no substance in the contention that the sentences were manifestly excessive. Smart AJ emphasised the serious nature of the offences, the extended period over which they occurred (three years and ten months), and the high degree of trust abused by the appellant as the victim's father. The Court noted that the appellant was fortunate the sentencing judge had not made some sentences cumulative rather than concurrent.

The Court acknowledged that special circumstances existed, particularly the relatively short parole period of approximately 13 and a half months, which Smart AJ observed was inadequate to meet the forensic psychiatrist's recommendation of prolonged supervised parole combined with participation in a sexual offenders programme. Rehabilitation in cases of this nature was described as notoriously difficult.

Nonetheless, the Court concluded that the required minimum custodial term could not be set at less than what had already been imposed. To achieve a longer parole period would have required extending the overall sentences, a course the Court declined to take. The submission regarding protective custody did not alter this conclusion. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that concurrent sentences totalling four years and six months, with a non-parole period of three years, four months and 13 days, were not manifestly excessive for a prolonged course of serious sexual offending by a parent against a child.
  • A guilty plea upon arraignment, no prior convictions, and evidence of remorse and personal hardship did not, in the circumstances, reduce the sentences to less than those imposed.
  • Where extending the total sentence would be required to achieve a longer parole period, the Court declined to take that course, even where the existing parole period was considered insufficient for rehabilitation purposes.
  • The fact that an offender would serve a sentence in protective custody did not constitute a basis for reducing an otherwise appropriate sentence on these facts.
  • Rehabilitation prospects, while relevant and worth pursuing through available programmes, must be weighed against the gravity of the offences and the minimum period of imprisonment warranted by the seriousness of the conduct.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment text or metadata.