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Court of Criminal Appeal 3 June 2002

REGINA v. COTTRELL

[2002] NSWCCA 213

Sexual offences
CRIMINAL LAW SENTENCE APPEAL AGED OFFENCE INDECENT ASSAULT ON MALE GAOLED FOR OTHER OFFENCES

Citation: Regina v Cottrell [2002] NSWCCA 213
Court: New South Wales Court of Criminal Appeal
Date: 3 June 2002
Judge(s): Greg James J; Carruthers AJ

Background

The applicant, a 74-year-old man with a lengthy history of sexual offending against children, was convicted of indecent assault on a male, an offence committed against his then 12-year-old foster son between January and October 1980. The offending involved repeated acts of fondling the child during bath time, occurring approximately 15 times. The offence had not come to light until some years after it was committed.

During the intervening decades, the applicant had been convicted and imprisoned for other sexual offences involving children. The present offence was disclosed only after those custodial sentences had been served, meaning it could not be dealt with at the same time as the earlier matters.

In the District Court, Judge Woods sentenced the applicant to three years and six months imprisonment, with a non-parole period of two years and six months. The applicant sought leave to appeal that sentence.

  • Whether the District Court imposed a sentence that was manifestly excessive, having regard to the applicant's age, medical condition, and rehabilitation
  • Whether the sentencing judge gave adequate weight to the applicant's ongoing psychiatric treatment, prescribed medication regime, and rehabilitative efforts
  • Whether it was appropriate to treat the applicant's prior convictions and sentences as aggravating the present sentence, given that those sentences post-dated the instant offence and were the occasion for the applicant's rehabilitative engagement
  • Whether a suspended sentence was available and appropriate in the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, finding that the sentence imposed below was excessive in all the circumstances. Greg James J identified several problems with the sentencing judge's reasoning.

The sentencing court appeared to have given insufficient weight to significant mitigating factors. These included the applicant's early plea, his contrition, his advanced age of 74, and his sustained engagement with psychiatric treatment and medication since 1999. Dr O'Dea, a forensic psychiatrist, had placed the applicant on Androcur, which reduced his testosterone and eliminated intrusive sexual thoughts. The court noted the applicant had also participated in counselling programs in custody, attended sex offender group courses on release, and engaged in church-based support.

Greg James J also found that the sentencing judge's treatment of prior convictions was problematic. Those earlier offences and sentences all post-dated the 1980 offence, yet they appeared to have been used to increase the sentence rather than being considered purely as context. The Court of Criminal Appeal held that this approach was not appropriate where the prior custodial experience had in fact prompted the applicant's rehabilitation.

The Court concluded that a two-year sentence, suspended on strict conditions, would adequately serve the objectives of deterrence and denunciation without requiring further full-time imprisonment, particularly given the applicant's age and health circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court quashed
  • In lieu, the applicant sentenced to two years imprisonment, wholly suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, upon the applicant entering into a recognisance of $500 to be of good behaviour
  • Recognisance conditioned on the applicant accepting supervision by the Probation and Parole Service, obeying all reasonable directions of that Service, submitting to psychiatric treatment, and maintaining or embarking on such prescribed medication regime as his psychiatrist deemed appropriate
  • Suspended sentence to run from the date of the appeal decision (3 June 2002)
  • Recognisance may be entered into before any magistrate

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even for serious and repeated sexual offending against children, a suspended sentence may be appropriate where advanced age, sustained medical treatment, and genuine rehabilitation are established on the evidence.
  • A sentencing court must take care when weighing prior convictions that post-date the instant offence. Where those prior sentences were the occasion for an offender's rehabilitative efforts, they should not be used as a basis for increasing the penalty for the earlier offence.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a term of imprisonment and attach conditions requiring psychiatric supervision and a prescribed medication regime, giving practical effect to ongoing treatment as part of the sentence.
  • Contrition must be assessed at the time of sentencing. The Court was critical of the sentencing judge's reasoning insofar as it appeared to discount contrition by reference to the offender's earlier conduct in placing himself near children, rather than focusing on the contrition evident at the time of the plea.
  • In cases involving historical offences dealt with later than contemporaneous charges, the circumstance that the offending could not be heard together with related matters is a relevant sentencing consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12 (suspended sentences)

Cases:
- Dinsdale (2000) 175 ALR 315