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Court of Criminal Appeal 9 December 2002

REGINA v DJM

[2002] NSWCCA 493

Sexual offences

Citation: REGINA v DJM [2002] NSWCCA 493
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2002
Judge(s): Bell J, Buddin J

Background

The applicant pleaded guilty in the District Court at Nowra to two counts of having sexual intercourse with a person aged between ten and sixteen who was under his authority, contrary to section 66C(2) of the Crimes Act 1900. The complainant was the fourteen-year-old niece of the applicant's then-fiancée. The offences occurred during a fishing trip at which an eleven-year-old friend of the complainant was also present.

The sentencing judge, Garling DCJ, imposed concurrent sentences of two years imprisonment with a non-parole period of one year, to be served in full-time custody. The maximum penalty for the offence was ten years imprisonment.

The applicant sought leave to appeal against the severity of those sentences, arguing that the sentencing judge had erred in how he weighed the psychiatric evidence and the applicable principles concerning deterrence for offenders with mental disorders.

  • Whether the sentencing judge erred by placing undue emphasis on general deterrence without adequately engaging with the established principle that general deterrence should be given little weight when an offender suffers from a mental disorder or abnormality.
  • Whether the sentencing judge failed to consider alternatives to full-time custody, including periodic detention or a suspended sentence, as required under the Crimes (Sentencing Procedure) Act 1999.
  • Whether the combination of the applicant's mental condition, prior good character, and low likelihood of re-offending warranted a lesser sentence or a non-custodial order.

Decision

The Court of Criminal Appeal accepted leave to appeal but ultimately dismissed the appeal, finding no appellable error in the exercise of Garling DCJ's sentencing discretion.

On the deterrence issue, the Court acknowledged the established principle that general deterrence should carry diminished weight when an offender suffers from a mental disorder, because such a person is not an appropriate vehicle for making an example to others. However, the Court found that the sentencing judge had engaged carefully with the psychiatric report of Dr Quinn and had taken the applicant's psychological condition into account as part of a broader balancing exercise. The absence of an explicit recitation of the mental disorder/deterrence principle in the sentencing remarks did not, in the Court's view, demonstrate that the judge had misapplied it.

On the question of alternatives to full-time custody, the Court noted that the sentencing judge was not required to formally record why he declined to impose periodic detention or a suspended sentence. The Court held that the judge's careful review of Dr Quinn's report, which had recommended non-custodial management, made it clear the judge had not overlooked those alternatives. Garling DCJ had concluded that the objective seriousness of the offences, involving two counts of sexual intercourse with a fourteen-year-old girl under the applicant's authority, warranted full-time imprisonment, even allowing for the applicant's good character, mental condition, and guilty pleas.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed the principle that general deterrence should ordinarily be given reduced weight when sentencing an offender who suffers from a mental disorder or abnormality, because such an offender is not an appropriate medium for deterring others.
  • A sentencing judge is not required to recite every applicable principle expressly in remarks on sentence, provided the reasoning as a whole demonstrates that competing considerations were balanced.
  • Where psychiatric evidence recommends non-custodial management, a sentencing court is not obliged to follow that recommendation; it must weigh the recommendation against the objective seriousness of the offending and all other relevant factors.
  • No error was established merely because the sentencing judge did not record a formal finding that no penalty other than full-time imprisonment was appropriate, where the sentencing remarks otherwise disclosed a careful and balanced approach.
  • Under the Crimes (Sentencing Procedure) Act 1999, the failure to record satisfaction that alternatives such as periodic detention or a suspended sentence were considered does not, of itself, demonstrate error in the exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(1), 12

Cases
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Foster [2001] NSWCCA 215
- R v Letteri (unreported), NSWCCA, 18 March 1992
- R v Mooney (unreported), 21 June 1978
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Zamagias [2002] NSWCCA 17