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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: New South Wales Court of Criminal Appeal
Date: 26 August 2002
Judge(s): Beazley JA, Bell J, Smart AJ

Background

The appellant, a 19-year-old man, pleaded guilty to one count of manslaughter and two counts of aggravated sexual assault (under s 61J of the Crimes Act 1900 (NSW)). The offences arose from a single episode at a party in Putney in October 1999, during which the appellant sexually assaulted a sleeping and intoxicated female guest. The victim died from asphyxiation after the appellant placed his hand over her mouth and nose to prevent her calling for help during the assaults.

The sentencing judge, Howie J in the Supreme Court, imposed fixed terms of eight years on each sexual assault count (concurrent, commencing 7 January 2000) and a sentence of 11 years with a non-parole period of seven and a half years for manslaughter (commencing 7 January 2003). The total effective sentence was 14 years with a non-parole period of 10 and a half years. The sentences were partially accumulated rather than fully concurrent.

The appellant sought leave to appeal against all three components of the sentencing structure, contending they were individually or collectively manifestly excessive and that the sentencing judge had erred in refusing to find special circumstances.

Legal Issues

  • Whether each individual sentence (for the sexual assault and manslaughter offences) was manifestly excessive
  • Whether the overall sentence and non-parole period, viewed on a totality basis, was manifestly excessive
  • Whether the appellant had been doubly punished for the same criminal conduct, contrary to the principle in Pearce v The Queen (1998) 194 CLR 610
  • Whether the sentencing judge erred in declining to find special circumstances justifying a non-parole period below the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The appropriate weight to be given to the youth of the offender, and the relevance of sentencing statistics

Decision

Ground 1: Individual sentences manifestly excessive

Beazley JA (with Bell J agreeing) held that neither the sentences for the sexual assault offences nor the sentence for manslaughter was manifestly excessive. Her Honour acknowledged that the sentencing statistics required careful handling: the JIRS data records only the principal offence per matter, and direct comparisons between a fixed-term sentence and a non-parole period are not appropriate. On the facts, the objective criminality was grave, and the mitigating factors (lack of premeditation, attempts at resuscitation, remorse, youth) were of a minor order only.

On the role of the appellant's youth, the Court confirmed that while youth is a significant sentencing factor and rehabilitation is an important consideration, neither principle operates to override general deterrence and public denunciation where the offending involves serious violence. The appellant was 19 at the time of the offences, not a juvenile, and no specific feature of his personal circumstances required any significant additional allowance beyond what the sentencing judge had already made.

Smart AJ (dissenting in part) agreed that no individual sentence was manifestly excessive but reached a different conclusion on totality, discussed below.

Ground 2: Overall sentence and non-parole period manifestly excessive; double punishment

Beazley JA rejected the submission that the appellant had been doubly punished contrary to Pearce. While acknowledging that the same physical act (placing a hand over the victim's face) formed part of both the second sexual assault count and the manslaughter offence, her Honour found nothing in the sentencing judge's reasons to indicate that the overlap had translated into double punishment. Partial accumulation of the sentences was itself evidence that the judge had avoided double-counting. The overall sentence was severe but not manifestly excessive.

Smart AJ dissented on totality. His Honour accepted that all three sentences were towards the top of the range and that, as a brief single episode in which the appellant never intended to kill, the combined effect was manifestly excessive. He would have reduced the total effective sentence to 12 and a half years by advancing the commencement date of the manslaughter sentence to 7 June 2001.

Ground 3: Failure to find special circumstances

Both Beazley JA and Smart AJ rejected this ground, though for slightly different reasons. Beazley JA held that the appellant had not demonstrated any specific error in the sentencing judge's approach: the statutory proportion under s 44 provided an adequate parole period, and the mere expectation that special circumstances might be found in a case like this did not establish error. Smart AJ, drawing on the re-focused approach in R v Simpson [2001] NSWCCA 534, considered the non-parole period primarily from the perspective of the minimum period of actual incarceration. He concluded that the correct non-parole period on a totality basis was nine years, but would not have disturbed the seven-and-a-half-year non-parole period for manslaughter.

The majority (Beazley JA and Bell J) dismissed the appeal. Smart AJ would have allowed it in part by varying the commencement date of the manslaughter sentence.

Orders Made

The orders proposed by Smart AJ (in dissent) were as follows:

  • Leave to appeal granted
  • Appeal allowed in part
  • Appeals against the eight-year fixed-term sentences on each count of aggravated sexual assault (counts 2 and 3) dismissed
  • Appeal against the 11-year manslaughter sentence (count 1) with a non-parole period of seven and a half years dismissed, but the commencement date varied to 7 June 2001, with the sentence expiring 6 June 2012 and the non-parole period expiring 6 January 2009

The majority orders (Beazley JA and Bell J) were:

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A harsh sentence is not, of itself, manifestly excessive: where the objective criminality is grave, a sentencing judge's exercise of discretion will not be disturbed merely because the outcome is severe or sits towards the top of the statistical range.
  • Sentencing statistics require careful, like-for-like comparison. Because JIRS records only the principal offence and excludes secondary charges, comparing a fixed-term head sentence with a non-parole period drawn from a different case is methodologically unreliable. The Court of Criminal Appeal confirmed this limitation and reinforced the cautions stated in R v Bloomfield (1998) 44 NSWLR 734.
  • The principle against double punishment (confirmed in Pearce v The Queen (1998) 194 CLR 610) applies where the same conduct forms a common element across multiple offences. Partial accumulation of sentences can itself demonstrate that a sentencing judge has avoided punishing an offender twice for the same act, even where factual overlap exists.
  • Youth is a significant mitigating factor but does not automatically reduce the weight given to general deterrence and public denunciation in cases of serious violent and sexual offending. Where an offender aged 19 commits grave crimes in a manner consistent with adult conduct, the principle of rehabilitation does not displace other sentencing objectives.
  • Following R v Simpson [2001] NSWCCA 534, the non-parole period is to be determined primarily by reference to the minimum period of actual incarceration required by all the circumstances, including the objective gravity of the offence and general deterrence, rather than solely by reference to the desirability of a longer supervision period on parole.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated