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12
Court of Criminal Appeal 9 August 2002

R v Fong

[2002] NSWCCA 320

Also reported as (2002) 132 A Crim R 308
Sexual offences
CROWN APPEAL AGGRAVATED SEXUAL ASSAULT S61J CRIMES ACT 1900 ASSERTED LENIENCY OF SENTENCE PLEA OF GUILTY CIRCUMSTANCES OF AGGRAVATION

Citation: R v Fong [2002] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 9 August 2002
Judge(s): Meagher JA; Simpson J; Howie J

Background

The respondent pleaded guilty in the District Court to a charge of aggravated sexual assault under s 61J of the Crimes Act 1900, carrying a maximum penalty of 20 years' imprisonment. The offence involved a violent sexual assault perpetrated against his six-year-old stepdaughter while her mother was at work. The child sustained serious physical injuries requiring surgical intervention under general anaesthetic.

Tupman DCJ sentenced the respondent to five years' imprisonment with a non-parole period of three years. The Crown appealed, contending the sentence was manifestly inadequate given the objective seriousness of the offending.

At the sentencing hearing, the respondent had initially maintained a wholly false account blaming two unknown intruders. He abandoned that account by the time of sentencing proceedings. The only partial mitigating consideration identified was his plea of guilty.

  • Whether the sentence of five years' imprisonment was manifestly inadequate for an offence of this gravity
  • The proper role of "consistency in sentencing" and reliance on earlier cases or ranges as a primary sentencing consideration
  • The correct application of ss 22 and 44(2) of the Crimes (Sentencing Procedure) Act 1999 in the context of a plea of guilty and any finding of special circumstances
  • What sentence the Court of Criminal Appeal should substitute if the appeal was allowed

Decision

The Court of Criminal Appeal unanimously held that the original sentence was manifestly inadequate. Simpson J, delivering the principal judgment, found the offending came very close to being in the worst class of cases of its kind. The victim's age, the deliberate restraint and gagging of the child to prevent escape and screaming, the severe physical injuries, and the complete absence of any credible explanation for the conduct all pointed to the highest level of objective seriousness.

All three judges rejected the respondent's argument that a case called R v Brooker had set a "benchmark" that constrained the sentencing judge to a five-year term. Meagher JA was trenchant in his criticism, holding that courts are bound by the maximum penalty set by Parliament, not by ranges derived from prior District Court decisions or lenient appellate outcomes. An isolated case cannot constitute a "range," nor can it dictate that all subsequent cases be modelled on it.

Simpson J acknowledged that consistency in sentencing is an important goal, but held it is at least equally important for public confidence in the administration of justice that sentences reflect the true nature and seriousness of the crime. Howie J went further, stating that consistency must give way where the particular facts of a case demand a specific sentence for reasons such as denunciation or specific deterrence. The legislature's policy is most clearly expressed through the maximum penalty it prescribes.

The majority (Simpson J and Howie J) settled on a total sentence of 13 years with a non-parole period of 8.5 years. Meagher JA would have imposed a longer sentence of 18 years with a non-parole period of 12 years, finding himself unable to understand how his colleagues arrived at a figure as low as 13 years. The majority figure prevailed by reason of the votes.

Orders Made

  • Appeal allowed; sentence imposed in the District Court quashed.
  • In lieu thereof, the respondent sentenced to imprisonment for 13 years with a non-parole period of 8.5 years.

Key Takeaways

  • A sentencing court is bound primarily by the maximum penalty Parliament has prescribed for an offence, not by ranges or benchmarks derived from earlier cases, including prior appellate decisions.
  • The Court of Criminal Appeal confirmed that an isolated earlier case cannot constitute a "range" for sentencing purposes, and reliance on such a case as a primary determinant is a sentencing error.
  • Where a respondent on a Crown appeal argues for consistency with a prior lenient outcome, that prior outcome must itself have been appropriate and must represent a genuine range rather than an aberrant result.
  • A finding of special circumstances appropriate to a short head sentence does not automatically carry over when a substantially longer sentence is substituted on appeal; the different total term may require fresh consideration.
  • Under s 61J of the Crimes Act 1900, the maximum penalty of 20 years' imprisonment exists to be applied in cases of the utmost gravity; offending that comes close to the worst class of cases must be sentenced with reference to that statutory maximum.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44(2)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Brooker, NSW CCA, unreported, 21 February 1996
- R v AEM [2002] NSWCCA 66, unreported, 12 March 2002