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12
Court of Criminal Appeal 26 August 2002

R v Adamson

[2002] NSWCCA 349

Also reported as (2002) 132 A Crim R 511
Sexual offencesHomicide
MANSLAUGHTER AGGRAVATED SEXUAL ASSUALT SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE WHETHER SPECIAL CIRCUMSTANCES RELEVANCE OF STATISTICAL INFORMATION

Citation: R v Adamson [2002] NSWCCA 349
Court: NSW Court of Criminal Appeal
Date: 26 August 2002
Judge(s): Beazley JA; Bell J; Smart AJA

Background

The appellant, a 19-year-old man, pleaded guilty in the Supreme Court to one count of manslaughter and two counts of aggravated sexual assault arising from a single incident at a party in October 1999. The victim, who had consumed significant alcohol during the evening, was asphyxiated when the appellant placed his hand over her mouth and nose during the course of the sexual assaults to prevent her calling for help. The offences were not premeditated.

After the victim became unresponsive, the appellant raised the alarm, attempted to revive her, and was visibly distressed when paramedics arrived. She died in hospital the following day. Howie J in the Supreme Court sentenced the appellant to fixed terms of 8 years on each of the two aggravated sexual assault counts (commencing 7 January 2000), and to 11 years with a non-parole period of 7.5 years on the manslaughter count (commencing 7 January 2003), producing a total sentence of 14 years with a non-parole period of 10.5 years.

The appellant sought leave to appeal against sentence on three grounds: that the individual sentences were manifestly excessive, that the overall sentence and non-parole period was manifestly excessive, and that the sentencing judge erred in failing to find special circumstances justifying a reduction in the statutory minimum non-parole period.

  • Whether the individual sentences imposed for each offence were manifestly excessive
  • Whether the overall sentence and non-parole period, viewed on a totality basis, was manifestly excessive
  • Whether the sentencing judge erred in failing to find special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, which would have permitted a non-parole period below three-quarters of the head sentence
  • The relevance of statistical information in sentencing
  • Whether the structure of partially accumulated sentences resulted in the appellant being punished twice for the same criminal conduct
  • What weight should be given to the appellant's youth, guilty plea, mitigating conduct, and the need for general deterrence

Decision

Majority (Beazley JA and Bell J): Appeal dismissed

The majority held that neither the individual sentences nor the overall sentence was manifestly excessive. The sentencing judge was found to have given appropriate weight to all relevant circumstances, including the objective gravity of the offences, the need for general deterrence, and the appellant's youth. The Court accepted that the three offences, although arising from a single event, were properly treated as distinct criminal acts warranting separate sentences structured with partial accumulation.

On the question of special circumstances, the majority found no error. The sentencing judge was not required to make a formal finding of special circumstances simply because the appellant was young or had no prior custodial experience. The statutory default proportion, under which a non-parole period must be at least three-quarters of the head sentence, was not displaced on the facts as found. The majority also addressed the relevance of statistical sentencing information, noting its limitations as a guide.

Dissent (Smart AJA): Would have partly allowed the appeal

Smart AJA agreed that the individual sentences were not manifestly excessive and that no error arose from the failure to find special circumstances. However, his Honour considered the overall sentence excessive when viewed on a totality basis, and would have advanced the commencement date of the manslaughter sentence to 7 June 2001 to produce a total non-parole period of 9 years. This adjustment was intended to better reflect the applicant's youth, guilty plea, attempts to revive the deceased, and the fact that he would have spent most of his adult life in custody before becoming eligible for release.

Orders

The majority position prevailed. Leave to appeal was granted but the appeal was dismissed, leaving the original sentences undisturbed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that partially accumulated sentences for distinct offences arising from the same transaction do not, without more, amount to punishing an offender twice for the same criminal conduct.
  • The youth of an offender is a relevant mitigating factor in sentencing, but the Court held it does not automatically give rise to a finding of special circumstances sufficient to reduce the non-parole period below the statutory three-quarter proportion.
  • A sentencing court must give appropriate weight to general deterrence even where an offence is unpremeditated and the offender has expressed genuine remorse and taken steps to render assistance after the event.
  • Statistical information about sentences imposed in comparable cases has limited utility and cannot, of itself, establish that a particular sentence is manifestly excessive.
  • Smart AJA's dissent illustrates that totality remains a live consideration even where individual sentences are unimpeachable: his Honour would have adjusted the sentence structure to ensure the cumulative non-parole period more accurately reflected the overall criminality and the offender's personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (non-parole periods and special circumstances)
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Bloomfield (1998) 44 NSWLR 734
- Pearce v The Queen (1998) 194 CLR 610
- R v Hoar (1981) 148 CLR 32
- R v AEM [2002] NSWCCA 58
- R v Hearne (2001) 124 A Crim R 451
- R v GDR (1994) 35 NSWLR 376
- R v Simpson [2001] NSWCCA 534
- R v Harrison (1997) 93 A Crim R 314
- R v Howard (1992) 29 NSWLR 242
- R v GDP (1991) 53 A Crim R 112
- R v Shorten (unreported, NSWCCA, 10 September 1997)
- R v Boney (unreported, NSWDC, Bellear J, 30 October 2000)
- C, S and T (unreported, NSWCCA, 12 October 1987)
- R v Nichol (1991) 57 A Crim R 391
- R v Elliott (unreported, NSWCCA, 14 February 1991)
- Pham and Ly (1991) 55 A Crim R 128
- Phelan (1993) 66 A Crim R 446
- R v Townsend & Cooner (unreported, NSWCCA, 14 February 1993)
- R v Mihailovic (unreported, NSWSC, Badgery-Parker J, 15 April 1991)
- R v Smith [1964] Crim LR 70