Citation: Hector v Regina [2003] NSWCCA 196
Court: New South Wales Court of Criminal Appeal
Date: 15 July 2003
Judges: Sheller JA, James J, O'Keefe J
Background
The appellant pleaded guilty in the District Court at Newcastle to sexual intercourse without consent and breaking and entering a dwelling house with intent to commit a serious indictable offence. Three further offences were taken into account on a Form 1, including a separate break-and-enter in which the appellant stole property and took a motor vehicle without the owner's consent.
The offences arose from a single night. The appellant, described as a long-term heroin addict, had watched his victim through her window for approximately five minutes before entering her home in the early hours of the morning. The sentencing judge imposed eight years' imprisonment with a five-year non-parole period for the sexual offence, and a concurrent fixed term of four years for the break-and-enter charge.
On appeal, the appellant challenged the sentences on two grounds: first, that the sentencing judge had impermissibly taken into account an uncharged aggravating circumstance, and second, that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by taking into account a circumstance of aggravation applicable to an offence under s 105A(1)(f) of the Crimes Act 1900, namely that the offender knew the victim was alone, when no such charge had been laid
- Whether the sentences imposed were manifestly excessive in all the circumstances
Decision
On the aggravation ground, the Court rejected the submission that the sentencing judge had treated the appellant's knowledge that his victim was alone as an uncharged aggravating factor in the break-and-enter offence. The two passages from the Remarks on Sentence that the appellant relied upon were read in their proper context: both referred to the circumstances of the sexual offence, not the break-and-enter charge. The Court confirmed the established principle that not every reference by a sentencing judge to a circumstance that could theoretically amount to aggravation will necessarily infringe the relevant common law or statutory rule against punishing an offender for an offence with which they have not been charged.
Sheller JA, agreeing with O'Keefe J, noted that nothing in the Remarks on Sentence supported the conclusion that the sentencing judge had sentenced as if the relevant offence were one charged under s 105A(1)(f) of the Crimes Act.
On manifest excess, the Court found no error. The offences were serious, involving a planned invasion of the victim's home, prolonged observation of the victim, and gross and demeaning sexual abuse. The victim's ongoing fear was a relevant consideration, as was the appellant's significant criminal history, his long-term heroin addiction, and his own acknowledgment that he considered himself a lifelong addict. The Court noted that the sentences imposed remained well below the applicable statutory maxima. Although the appellant had behaved commendably in custody since sentencing, the Court did not consider this a sufficient basis to reduce the sentences.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Not every reference in sentencing remarks to a circumstance that could amount to an aggravating factor will constitute impermissible double-counting or punishment for an uncharged offence; context is determinative.
- Where sentencing remarks are read as a whole, a reference to the offender's awareness that the victim was alone, made in the context of the sexual offence, does not necessarily indicate that the judge sentenced on the basis of an uncharged s 105A(1)(f) aggravated break-and-enter.
- A long-term drug addiction, acknowledged by the offender as lifelong, can properly inform a sentencing judge's assessment of prospects for rehabilitation and may reduce entitlement to leniency beyond a guilty plea discount.
- Positive post-sentence conduct in custody, while commendable, does not automatically provide grounds for reducing sentences on appeal.
- The Court of Criminal Appeal confirmed that sentences well below applicable statutory maxima are not inherently manifestly excessive, even where the offender relies on comparative sentencing statistics.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61I, 105A(1)(f), 112(1), 113(1), 154A(1)
- Road Transport (Driver Licensing) Act 1998 (NSW): s 25A(1)(a)
Cases:
- Regina v Booth (NSWCCA, 12 November 1993, unreported)
- The Queen v De Simoni (1980-1981) 147 CLR 383