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Court of Criminal Appeal 7 May 2002

R v Hanslow

[2002] NSWCCA 161

Sexual offencesAssault & violence
CRIMINAL PRACTICE & PROCEDURE APPLICATION FOR EXTENSION OF TIME APPEAL AGAINST SEVERITY OF SENTENCE PERIODIC DETENTION REVOCATION OF ORDER SENTENCE EXCESSIVE

Citation: Hanslow v R [2002] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 7 May 2002
Judge(s): Kirby J; Smart AJ

Background

The appellant was convicted in the District Court in April 1999 of two offences committed in late 1989, when he was sixteen years old: assault with intent to have sexual intercourse with a child under ten years of age, and an act of indecency upon the same child. The complainant did not report the offences until 1997, meaning the matter came to trial almost a decade after the events occurred.

Gibson DCJ sentenced the appellant to a fixed term of two and a half years' imprisonment on the more serious count, and nine months on the indecency count, both to be served by way of periodic detention. Periodic detention required the appellant to attend a detention centre on weekends while living in the community during the week.

The appellant's compliance with the periodic detention regime was severely disrupted. Other inmates at the detention centre learned of the nature of his offences and subjected him to taunting and assault. He and his family faced harassment in their neighbourhood, leading them to relocate. He ultimately ceased attending after further serious driving offences in May 2001, at which point the Parole Board revoked the periodic detention order and fixed a remaining custodial term to be served in full-time custody. He then sought leave to appeal the original sentence and an extension of time in which to do so.

  • Whether the sentencing judge erred in failing to fix a minimum term and an additional term, and in failing to give reasons for not doing so
  • Whether the sentences imposed were manifestly excessive, having particular regard to the appellant's age at the time of the offences and the significant delay before trial

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal. The Court found that the original sentences were manifestly excessive, and proceeded to re-sentence the appellant.

On the principal count of assault with intent to have sexual intercourse, the Court identified several factors that made a sentence of two and a half years' imprisonment impermissible in the circumstances. The appellant was sixteen at the time of the offence. Had the matter been reported promptly, it would almost certainly have been dealt with in the Children's Court, where a custodial sentence was highly unlikely, and any custodial term would have been served in a juvenile justice facility rather than an adult prison. The ten-year delay before trial caused real prejudice by depriving the appellant of the benefit of that less punitive regime.

The Court also noted that by the time of sentencing, the appellant had settled into a stable relationship with a partner and had no subsequent conduct of a sexually aberrant nature. The attempted sexual intercourse was not completed. On the lesser count of indecent assault, the Court agreed with the sentencing judge that the offending was at the bottom of the range of seriousness, involving an impulsive act by a sixteen-year-old, and found that a custodial sentence for that offence would not have been within the contemplation of the Children's Court either. The nine-month sentence on that count was also found to be manifestly excessive.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a substantial delay between the commission of an offence and trial can constitute genuine prejudice to the offender, particularly where the delay results in the loss of access to a less punitive sentencing regime such as the Children's Court.
  • Where an offender was a juvenile at the time of the offending, the sentencing court is required to give significant weight to the fact that the Children's Court would likely have imposed little or no custodial penalty at the time of the offence.
  • A sentence that would not have been available in the appropriate jurisdiction had the matter been dealt with promptly may be found to be manifestly excessive when imposed years later in an adult court.
  • The absence of any subsequent sexually aberrant conduct between the time of the offence and the time of sentencing was treated as a relevant mitigating factor on re-sentence.
  • In re-sentencing after finding manifest excess, the Court of Criminal Appeal substituted its own sentences rather than remitting the matter to the District Court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61B and 61E(1)
- Periodic Detention of Prisoners Act 1981 (NSW) (since repealed)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- R v Bang (unreported, CCA, 1 September 1992)
- R v Sadebath (unreported, CCA, 14 May 1992)
- R v Wegener [1999] NSWCCA 405