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Court of Criminal Appeal 14 August 2003

REGINA v TOTTEN

[2003] NSWCCA 207

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL OFFENCES PROTECTIVE CUSTODY SPECIAL CIRCUMSTANCES

Citation: Regina v Totten [2003] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 14 August 2003
Judges: Sheller JA, James J, O'Keefe J

Background

The applicant pleaded guilty in the District Court to two offences involving the sexual abuse of a young girl. The first offence was aggravated indecent assault of the complainant when she was between ten and twelve years old. The second was sexual intercourse with a child aged between ten and sixteen years who was under the authority of the applicant. The applicant had entered a de facto relationship with the complainant's mother, and the complainant had come to live in the same household.

At sentencing, Judge McGuire imposed a fixed term of eighteen months for the first offence and five years four months with a non-parole period of four years for the second offence, both sentences commencing 12 September 2002. The applicant sought leave to appeal on several grounds, including that the sentencing judge had erred in declining to find special circumstances.

A significant feature of the appeal was evidence, not available at the original sentencing, that the applicant had spent at least the first eight months of his sentence in protective custody at Junee Correctional Centre. This custody was materially more onerous than conditions in the general prison population.

  • Whether the sentencing judge erred by failing to take into account delays between the offences and the sentencing
  • Whether the sentences imposed were manifestly excessive given the objective seriousness of the offences and the applicant's subjective circumstances
  • Whether the sentencing judge erred in failing to find special circumstances justifying a variation of the statutory ratio between the non-parole period and the total sentence
  • Whether the applicant's conditions of protective custody, being more onerous than those experienced by the general prison population, constituted special circumstances warranting adjustment to the sentence

Decision

The Court of Criminal Appeal rejected the applicant's submission that delays between the offences and sentencing had been improperly overlooked. James J noted that the delays were not unusual in the context of child sexual offences, and no such submission had even been made before the sentencing judge.

On the question of manifest excess, the Court found the sentences were within the permissible range given the objective seriousness of the offending. The offences involved a deliberate breach of trust, the complainant was very young, and the victim impact evidence confirmed lasting harm. The Court confirmed the eighteen-month fixed term for the first offence.

The Court did, however, accept that special circumstances existed for the purpose of re-sentencing on the second, more serious offence. Two factors combined to establish those circumstances: the applicant had served at least the first eight months of his sentence under protective custody conditions that were materially more onerous than those experienced by ordinary prisoners, and a psychologist's report indicated the applicant would require close monitoring and supervision by the Probation and Parole Service after release. That report had not been tendered at the original hearing but was admitted in the appeal for re-sentencing purposes.

Accepting those special circumstances, the Court imposed a slightly reduced total sentence of five years (reduced from five years four months) for the second offence, with the non-parole period reduced to three years six months. This adjusted ratio between the non-parole period and the head sentence reflected the Court's finding that a longer period on parole supervision was warranted.

Orders Made

  • Leave to appeal granted
  • First sentence (eighteen months for aggravated indecent assault, commencing 12 September 2002) confirmed
  • Second sentence quashed and replaced with a term of five years imprisonment commencing 12 September 2002, with a non-parole period of three years six months commencing 12 September 2002 and expiring 11 March 2006

Key Takeaways

  • Protective custody conditions materially more onerous than those in the general prison population can constitute special circumstances justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
  • A finding of special circumstances may also be supported by evidence of a need for extended post-release supervision, where a psychologist's report establishes that close monitoring by the Probation and Parole Service is required.
  • Delays between the commission of a sexual offence against a child and the eventual sentencing do not automatically attract favourable consideration, particularly where the delays are consistent with patterns common to child sexual offence matters.
  • Fresh evidence not tendered at the original sentencing may be admitted on appeal in the Court of Criminal Appeal when the court is re-sentencing the offender.
  • In dismissing most grounds but allowing the appeal on special circumstances, the Court of Criminal Appeal reduced the total head sentence modestly and extended the ratio of parole time to reflect supervision needs rather than to reduce the overall punitive weight of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Burchell (1987) 34 A Crim R 148
- R v Scott [2003] NSWCCA 28
- R v Todd (1982) 2 NSWLR 517
- R v Wahabzadah [2001] NSWCCA 253
- Weininger v The Queen (2003) HCA 11