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5
Court of Criminal Appeal 4 August 2003

R v SG

[2003] NSWCCA 220

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PLEA OF NOT GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: SG v R [2003] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 4 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The applicant, a 23-year-old New Zealand resident, was convicted in the District Court of seven counts of having sexual intercourse with a person under the age of 16 years, contrary to s 66C(1) of the Crimes Act 1900. The offences involved his 14-year-old cousin and arose from three separate incidents: one at the applicant's apartment and two at the complainant's family home. The jury acquitted him of the more serious charges under s 61J (which required proof of non-consent) and instead found him guilty of the statutory alternative.

The applicant had pleaded not guilty, went to trial, and gave evidence denying the allegations. The sentencing judge at the District Court imposed an overall term of three years' imprisonment with an effective non-parole period of 18 months, with all sentences running concurrently from 8 November 2002. Notably, the sentences for each group of offences escalated in length, with the District Court expressly treating the earlier offences as a reason to increase the terms for subsequent groups.

The applicant sought leave to appeal, contending that the sentencing judge had given insufficient weight to delay, rehabilitation, good character, and other subjective factors, and that the resulting sentences were manifestly excessive. The applicant also argued that the construction of the sentences was inconsistent with the principles in Pearce v The Queen.

  • Whether the sentencing judge misapplied the principles in Pearce v The Queen by escalating sentence lengths for each group of offences, rather than fixing individually appropriate sentences and then applying totality
  • Whether the sentencing judge treated the absence of consent, or the applicant's conduct of his defence, as aggravating circumstances in a way that constituted error
  • Whether the overall sentences were manifestly excessive having regard to delay, rehabilitation, character, the subjective circumstances of the applicant, and the range of appropriate sentencing options

Decision

The Court found that the sentencing judge's approach offended Pearce v The Queen. The correct method is to fix an individually appropriate sentence for each count and then address totality when deciding whether terms should run concurrently or cumulatively. Instead, the sentencing judge increased the sentences for later groups of offences because earlier offences had already been committed. This produced terms disproportionate to the objective criminality involved and constituted a sentencing error.

The Court also identified ambiguity in the sentencing remarks regarding consent and the applicant's conduct of his defence. Because s 66C(1) is a strict liability offence, the absence of consent was strictly irrelevant. If the remarks treated a not guilty plea and vigorous cross-examination of the complainant as aggravating the criminality (rather than merely as reasons to deny a discount for contrition), that would have been a serious error under Siganto v The Queen.

On the question of manifest excess, the Court accepted that the sentencing judge had turned his mind to the applicant's good character, rehabilitation prospects, the delay in prosecution, alternatives to full-time custody, and the fact that the offences could have been dealt with summarily. Despite this, the Court found the overall sentences fell outside the proper range of sentencing discretion. The errors identified may have led the sentencing judge to treat the conduct as objectively more serious than was warranted.

The Court re-sentenced the applicant to fixed terms across all counts, running concurrently from the original commencement date. Fixed terms (without a non-parole period and parole supervision component) were considered appropriate given the interconnected nature of the offending, the applicant's strong rehabilitation prospects, his residence in New Zealand, and the limited utility of imposing probation and parole supervision in those circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Sentences imposed in the District Court quashed
  • Counts 1 and 2: fixed terms of 9 months' imprisonment, concurrent, from 8 November 2002
  • Counts 3 and 4: fixed terms of 9 months' imprisonment, concurrent, from 8 November 2002
  • Counts 5 and 6: fixed terms of 12 months' imprisonment, concurrent, from 8 November 2002
  • Count 7: fixed term of 12 months' imprisonment, from 8 November 2002

Key Takeaways

  • Under Pearce v The Queen, a sentencing court must first fix an individually appropriate sentence for each count, then consider whether totality requires concurrent or cumulative service. Escalating sentence lengths for successive groups of offences because prior offences had already been committed inverts this process and constitutes error.
  • A plea of not guilty and vigorous cross-examination of a complainant may, at most, deny an offender the benefit of a discount for contrition and remorse. Treating those matters as positive aggravating factors that increase the criminality of the offending is a separate and impermissible step, as affirmed by reference to Siganto v The Queen.
  • Section 66C(1) of the Crimes Act 1900 is a strict liability offence: the presence or absence of consent is irrelevant to the elements of the charge, and must not be imported as an aggravating circumstance at sentence.
  • Fixed terms of imprisonment (without a parole component) were appropriate in these circumstances given the offending formed part of a continuing enterprise, making accumulation unnecessary, and given the applicant's overseas residence and strong rehabilitation prospects.
  • Sufficient subjective mitigation, including good character, delay in prosecution, and favourable rehabilitation prospects, can collectively bring an otherwise serious sentence outside the proper range, even where alternatives to full-time custody have already been correctly rejected.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 66C(1)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Siganto v The Queen (1998) 194 CLR 656
- Cheung v The Queen (2001) 76 ALJR 133
- Regina v Doan (2000) 50 NSWLR 115
- Regina v Isaacs (1997) 41 NSWLR 374
- Regina v Sewell [2002] NSWCCA 453