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9
Court of Criminal Appeal 28 February 2003

REGINA v Kevin James SCOTT

[2003] NSWCCA 28

Sexual offences

Citation: Regina v Kevin James Scott [2003] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 28 February 2003
Judge(s): O'Keefe J; Bell J

Background

The applicant pleaded guilty in the District Court at Lismore to five counts of sexual intercourse with a child aged thirteen (contrary to s 66C(1) of the Crimes Act 1900) and one count of aggravated indecent assault on the same child (contrary to s 61M(1)). He also asked the sentencing judge to take into account six further offences on a Form 1, including additional acts of indecency against the same complainant, a common assault on a second complainant (who was kissed without consent), and an aggravated indecent assault on a third complainant aged ten.

The offending occurred over roughly six months in 2000, primarily at a park and at the victim's high school in Coffs Harbour. The applicant, a mature-aged man, had groomed the thirteen-year-old victim by giving her small amounts of money before escalating to repeated sexual offending, including incidents inside school classrooms during morning recess.

Judge Patten of the District Court sentenced the applicant to five years imprisonment on count one, with a non-parole period of two and a half years, and concurrent terms of two years on each of counts two to six. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the head sentence of five years with a two-and-a-half-year non-parole period on count one was manifestly excessive in all the circumstances.
  • Whether sufficient weight was given to the applicant's subjective circumstances, including his age, health conditions (diabetes and an eye condition), favourable progress in custody, and remorse.
  • Whether the conditions of the applicant's custody (including protection status as a sex offender) warranted a reduction in sentence.
  • Whether the concurrent structure of all sentences was appropriate given the principles in Pearce v The Queen.

Decision

Bell J (with whom O'Keefe J agreed) dismissed the appeal, finding that no lesser sentence was warranted in law. The Court granted leave to appeal but concluded the sentences imposed by Patten DCJ were not manifestly excessive given the nature and extent of the criminality involved.

On the question of the applicant's subjective circumstances, the Court acknowledged his favourable progress in custody, his involvement with a religious group, his remorse, and his health difficulties. However, these matters did not, in the Court's view, justify reducing the head sentence or the non-parole period.

Regarding custody conditions, Bell J applied the approach from R v Burchell, which recognised that sex offenders serving sentences on protection status may experience more onerous custody conditions. However, the Court was not persuaded on the evidence that the applicant's conditions, including his placement in a special facility, were sufficiently burdensome to warrant a reduction.

The Court confirmed that the sentence on count one was required to reflect the additional criminality captured by the six Form 1 offences. These offences spanned six months and involved two further complainants, including the aggravated indecent assault on a ten-year-old child. Consistent with R v Morgan, R v Bavadra, and R v Barton, the sentencing court was required to factor that criminality into the principal sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Form 1 offences must be reflected in the principal sentence, even where they involve different complainants, provided the sentencing court takes that additional criminality into account consistently with established authority.
  • Where a sexual offender is held on protection status, evidence about the actual conditions of custody is necessary before a sentencing court can make an informed assessment of whether a reduction in sentence is warranted. General references to protection status are insufficient.
  • Favourable subjective circumstances, including remorse, progress in custody, and health conditions, did not displace the objective seriousness of sustained sexual offending against a child over a six-month period involving multiple complainants.
  • Concurrent sentences across multiple counts arising from related offending were not challenged as incorrect in principle, consistent with the High Court's approach in Pearce v The Queen.
  • A head sentence of five years with a non-parole period of two and a half years for repeated digital penetration of a thirteen-year-old, together with six Form 1 offences involving further complainants, was upheld as within the proper exercise of sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61M(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- AB v The Queen (1999) 198 CLR 111
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Regina v Allpass (1993) 72 A Crim R 561
- R v Barton [2001] NSWCCA 63
- R v Bavadra (2000) 115 A Crim R 152
- R v Boon (unreported), NSWCCA, 17 November 1983
- R v Burchell (1987) 34 A Crim R 148
- Regina v Gorman [2002] NSWCCA 516
- R v Letteri (unreported), NSWCCA, 18 March 1992
- R v Morgan (1993) 70 A Crim R 368
- R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
- R v Thomson (2000) 49 NSWLR 383
- R v Tran [2002] NSWCCA 440