Citation: [2002] NSWCCA 468; (2002) 135 A Crim R 401
Court: NSW Court of Criminal Appeal
Date: 15 November 2002
Judge(s): Wood CJ at CL; Dowd J
Background
The applicant was convicted in the Lismore District Court of attempting to cause a child under 14 years of age to participate in child prostitution, contrary to section 91D(1)(a) of the Crimes Act 1900. The maximum penalty for this offence, including the attempt, was 14 years imprisonment.
The facts were unusual. The applicant visited a sex worker at her premises, paid her $180, and during the encounter expressed a sexual interest in her young daughter. He negotiated a payment of $600 to have access to the child for sexual purposes. Several days later, he made a further call seeking to proceed with the arrangement. The sex worker continued the conversation to gather information for police, and the offence was never physically completed because the applicant was prevented from carrying it through.
The sentencing judge imposed a term of four years imprisonment with a non-parole period of two years, finding special circumstances to justify the reduced non-parole period. A 20 per cent discount was applied to reflect the utilitarian value of an early guilty plea. The applicant sought leave to appeal on the ground that the sentence was excessive, arguing in part that the impossibility of the attempt succeeding should have reduced its objective seriousness.
Legal Issues
- Whether the impossibility of successfully completing an attempt to commit a criminal offence reduces the objective seriousness of that offence for sentencing purposes.
- Whether the sentence of four years imprisonment with a two-year non-parole period was excessive in all the circumstances.
Decision
The Court acknowledged that where an attempt was always predestined to fail, or was unlikely to succeed, that fact can in principle reduce the objective seriousness of the offence. This proposition derives from Regina v Taouk (1992) 65 A Crim R 307, in which Badgery-Parker J observed that an attempt unlikely to succeed or with no real prospect of success may warrant a reduced assessment of objective seriousness. The Court accepted that principle as correct.
However, the Court found the principle had no practical application on these facts. The attempt in this case was carried almost to completion. The applicant had made all necessary preparations, negotiated payment, and was only prevented from proceeding because the sex worker alerted police. Dowd J observed it would be difficult to conceive of an attempt that went further in its execution.
Weighing the principle from Taouk against the particular circumstances, the Court held that the objective seriousness of this offence was so high that no reduction in sentence was warranted. The sentencing judge's careful consideration of both objective and subjective factors, including the medical evidence placed before the court, was acknowledged. The Court found no lesser sentence than four years imprisonment could have been appropriate, and accordingly declined to interfere.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under the principle in Regina v Taouk, the impossibility or unlikelihood of an attempt succeeding is a relevant sentencing consideration that may reduce the objective seriousness of an attempt offence, but it is not determinative and must be weighed against all other circumstances.
- Where an attempt is carried almost to completion and involves conduct of the gravest seriousness, the impossibility principle will carry little or no mitigating weight.
- The Court of Criminal Appeal confirmed that each sentencing exercise involving an attempt offence requires an individual assessment of the seriousness of the substantive offence attempted, alongside the deliberateness and sophistication of the conduct.
- In dismissing the appeal, the Court signalled that the protection of children from sexual exploitation represents an especially weighty sentencing consideration, capable of overriding any reduction that might otherwise flow from the impossibility of completion.
- No error was established in the sentencing judge's approach, including the finding of special circumstances and the application of a 20 per cent discount for an early guilty plea.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 91D(1)(a), 344A
- Crimes (Sentencing Procedures) Act 1999 (NSW), s 44
Cases:
- Regina v Taouk (1992) 65 A Crim R 307