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Court of Criminal Appeal 1 August 2002

REGINA v. MARSHALL

[2002] NSWCCA 311

Sexual offences
CRIMINAL LAW APPEAL SENTENCE MULTIPLE OFFENCES BREACHES OF RECOGNIZENCES EFFECT OF PRIOR OFFENCES

Citation: [2002] NSWCCA 311
Court: New South Wales Court of Criminal Appeal
Date: 1 August 2002
Judge(s): Sperling J; Greg James J

Background

The appellant pleaded guilty in the District Court to aggravated sexual assault upon a male child under the age of 16, an offence under s 61J(1) of the Crimes Act 1900 carrying a maximum penalty of 20 years imprisonment. The offence involved the appellant plying the victim with alcohol, taking advantage of him while he was asleep and unwell, and proceeding despite the victim's attempts to refuse his advances.

The sentencing judge also dealt with two breaches of bonds arising from earlier convictions for aggravated indecent assault. Those bonds, one under s 9 and one under s 12 of the Crimes (Sentencing Procedure) Act 1999, had been imposed by a separate District Court judge in December 2000. Both related to offences committed in July 1994, to which the appellant had also pleaded guilty.

The appellant had a significant prior record including sexual offences against children dating to 1991, a period of imprisonment in South Australia for unlawful sexual intercourse, and several additional schedule matters involving sexual conduct with minors. The sentencing judge imposed a head sentence of six years and six months with a non-parole period of four years and six months for the principal offence, with concurrent and partially consecutive terms for the bond breaches.

  • Whether the sentencing judge's starting point for the sentence calculation was too high having regard to the objective criminality of the offence
  • Whether the resulting sentence was manifestly excessive when considered in light of all the circumstances, including the nature of the specific acts involved
  • Whether the sentencing judge erred in the weight given to the appellant's prior offending when determining the appropriate level of leniency

Decision

The Court of Criminal Appeal found no error warranting interference with the sentence. Greg James J acknowledged that the particular acts constituting the offence were not the most physically invasive form the offence could take, but confirmed the sentencing judge had explicitly addressed this when arriving at the sentence. The question was not whether worse conduct existed within the section, but whether the sentence was appropriate to the crime as actually committed.

The court accepted the sentencing judge's treatment of the bond breaches as an appropriate exercise of discretion. When examining the sentence for the principal offence in isolation, the effective outcome was a head sentence of five and a half years with a non-parole period of three years and six months. The court did not regard this as excessive.

On the question of specific deterrence, the court interpreted the sentencing judge's remarks about the appellant approaching "predatory" conduct not as a finding that he was currently dangerous, but as a legitimate basis for withholding some of the leniency that might otherwise have applied to a first or lesser offender. The appellant's repeated sexual offending against minors across more than a decade was a proper consideration.

The court held that under s 6(3) of the Criminal Appeal Act 1912, interference was only warranted where some other sentence was warranted in law and should have been passed. No such error was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court acts within its discretion in reducing the leniency it might otherwise extend to an offender whose prior record reveals a pattern of sexual offending against minors, even where the offender has pleaded guilty.
  • The Court of Criminal Appeal confirmed that the relevant question on a claim of manifest excess is not whether worse examples of the offence exist within the same statutory provision, but whether the sentence was appropriate to the offence as it was actually committed.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only substitute a sentence where some other sentence was warranted in law and should have been passed. Mere disagreement with the sentencing judge's starting point is insufficient.
  • In dismissing the appeal, the court treated concurrent bond-breach sentences as a relevant but not determinative factor, preferring to assess the appropriateness of the principal sentence on its own terms.
  • Remarks by a sentencing judge about the risk of an offender becoming "predatory" do not necessarily amount to a finding of present dangerousness; they may lawfully reflect the trajectory of an offender's prior record as a basis for specific deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases cited: No specific cases were cited in the judgment.