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Court of Criminal Appeal 8 October 2002

Regina v O.O

[2002] NSWCCA 416

Sexual offencesAssault & violence

Citation: Regina v O.O [2002] NSWCCA 416
Court: NSW Court of Criminal Appeal
Date: 8 October 2002
Judge(s): Sully J; Howie J

Background

The appellant pleaded guilty in the District Court to three offences: sexual intercourse with a nine-year-old girl (his niece) in circumstances of serious breach of care and control, assault occasioning actual bodily harm to an eleven-year-old boy (his half-brother) by beating him severely with a length of hose, and a common assault on the same boy. All three victims were at the time under the appellant's effective care and control.

Judge Christie sentenced the appellant to six years' imprisonment with a non-parole period of three years and six months on the sexual assault count, with shorter concurrent fixed terms on the assault counts. His Honour found special circumstances, acknowledging the appellant's significant psychiatric needs and the importance of supervised post-release treatment.

On appeal, the appellant sought leave to appeal against sentence. He relied on additional affidavit material, including an updated psychiatric report, arguing that the sentences were manifestly excessive in light of his mental illness at the time of the offences and at the time of sentencing.

  • Whether the sentences imposed by the District Court were within the appropriate range, having regard to the objective seriousness of the offences
  • Whether the appellant's schizophrenic illness at the time of the offences and at sentencing warranted a reduction in the sentences imposed
  • Whether additional psychiatric material placed before the Court of Criminal Appeal established any unfairness in the original sentencing process that would justify appellate intervention

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the substantive appeal, finding that the sentences fell well within the appropriate range of penalty both as to the head sentences and the non-parole period.

Sully J accepted that the additional affidavit material, including an updated report from Dr O'Dea confirming the appellant's schizophrenic illness and its relevance to the assault offences, was important and had its proper place. However, his Honour did not regard it as a sufficiently compelling new element to justify interference with the sentences imposed below. Applying the principles from Veen v The Queen (No 2), Sully J observed that the competing considerations of the individual's circumstances and society's legitimate interest in protection from serious offending against children effectively cancelled each other out in this case.

Howie J agreed and added that the overall leniency of the sentences could only be justified by the combination of the guilty pleas and the appellant's mental disorder at the time of the offences and sentencing. Absent those factors, his Honour considered the sentences would have been inadequate to reflect the objective seriousness of the conduct. Howie J also found that the further reports did not establish that any unfairness had in fact arisen from the appellant's mental state at the time of sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appropriate weight to be given to an offender's mental illness at sentencing must be balanced against the community's legitimate interest in protection from serious offending, particularly where the victims are vulnerable children.
  • Under the principles in Veen v The Queen (No 2), the competing considerations of individual circumstances and community protection can, in a particular case, effectively cancel each other out rather than producing a net reduction in penalty.
  • Where additional psychiatric material is received on appeal to address potential unfairness arising from an offender's mental disorder at the time of sentencing, the Court will only intervene if the material actually establishes that unfairness occurred, not merely that mental illness was present.
  • Howie J's remarks make explicit that guilty pleas and relevant mental disorder were the specific factors justifying sentences that would otherwise have been inadequate for offences of this objective gravity.
  • A sentence for sexual intercourse with a child under ten years, in circumstances of abuse of a care relationship, attracts a statutory maximum of 20 years' imprisonment under s 60A of the Crimes Act 1900 (NSW), underscoring the seriousness with which the legislature and the courts treat such offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60A (sexual intercourse with a child under ten years)
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm)
- Crimes Act 1900 (NSW), s 61 (common assault)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465