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Court of Criminal Appeal 25 June 2002

R v Walder

[2002] NSWCCA 310

Sexual offences
SENTENCING AGGRAVATED INDECENT ASSAULT NOT THE MOST SERIOUS EXAMPLE

Citation: R v Walder [2002] NSWCCA 310
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2002
Judge(s): Smart AJ, Blanch AJ

Background

The applicant pleaded guilty in the District Court to aggravated indecent assault committed on 17 February 2001. The victim was a ten-year-old girl known to the applicant. The offending occurred at the victim's home after the applicant had spent several hours there, consuming alcohol and cannabis.

The applicant had a significant prior record for similar offending, with custodial sentences imposed in 1987 and 1991. He also had a diagnosed lifelong psychiatric illness characterised by psycho-affective psychosis and a paranoid delusional system, treated with antipsychotic and mood-stabilising medication. Notably, the applicant contacted the DOCS helpline himself to report what he had done before police became involved, and he admitted the offence in a recorded interview the following day.

The District Court (Goldring DCJ) sentenced the applicant to four years and ten months imprisonment with a non-parole period of three years. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the offending was properly characterised in terms of objective seriousness, given it fell toward the lower end of the range for aggravated indecent assault.
  • Whether the sentencing judge erred by effectively increasing the sentence on account of the applicant's prior record, beyond what the objective criminality warranted.
  • Whether the discount applied for the plea of guilty, early self-reporting, and remorse was adequate.
  • Whether the sentencing judge adequately took into account the applicant's subjective features, including his permanent deafness and underlying psychiatric condition.

Decision

The Court of Criminal Appeal found that the sentence imposed was out of accord with Judicial Commission statistics for the offence. Among cases involving prior offences of the same kind and custodial sentences, no head sentence exceeded 42 months. The Court accepted that, while that was a small sample, the offending here did not fall into the most serious category of aggravated indecent assault and should not have attracted a sentence approaching the seven-year maximum.

The Court confirmed that a prior record cannot be used to increase a sentence beyond what the objective criminality and subjective features otherwise warrant. The applicant's prior record significantly limited any entitlement to leniency, but it could not inflate the sentence beyond its proper ceiling.

On the question of discount, the Court found that a reduction of twenty per cent was too low in all the circumstances. The applicant had self-reported to authorities before police had been informed, admitted the offence promptly to police, and pleaded guilty. While he was not entitled to the full discount recognised in R v Ellis simply by virtue of early reporting (given the mother was already taking action), the totality of those circumstances warranted a discount of around thirty per cent. The Court also found that the sentencing judge appeared not to have factored the applicant's deafness and underlying psychiatric illness into the head sentence calculation.

The Court recalculated the sentence. It set a starting point of four years and four months, applied the thirty per cent discount, and arrived at a head sentence of approximately three years. Special circumstances were found, having regard to the applicant's hearing impairment, the contribution of that impairment to his mental condition, and the additional difficulties he would face in protective custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • In substitution: imprisonment for three years commencing 12 October 2001, with a non-parole period of 21 months commencing on the same date and expiring 11 July 2003, upon which date the applicant was to be released on supervised parole.

Key Takeaways

  • A prior record for similar offending can properly limit a sentencing discount and reduce any entitlement to leniency, but it cannot be used to increase a sentence beyond what the objective seriousness of the offending and the offender's subjective features would otherwise justify.
  • Where an offence falls toward the lower end of the seriousness continuum, a sentence approaching the statutory maximum will generally be inconsistent with principle and out of accord with comparable sentencing patterns.
  • Judicial Commission statistics, while not determinative, provide relevant guidance, and a sentence significantly above the statistical range for comparable cases requires justification.
  • The Court of Criminal Appeal confirmed that an offender's self-reporting to authorities and prompt admissions to police are relevant mitigating factors capable of contributing to a sentencing discount, though the extent of that contribution depends on the surrounding circumstances.
  • An underlying and lifelong psychiatric condition is a significant subjective factor that must be addressed in fixing the head sentence, not merely acknowledged in the context of special circumstances.

Legislation and Cases Referenced

Legislation:
- No legislation specifically cited.

Cases:
- R v Ellis (1986) 6 NSWLR 603 (discount for early assistance and guilty plea)