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5
Court of Criminal Appeal 31 October 2003

REGINA v HQ

[2003] NSWCCA 336

Sexual offences
CRIMINAL LAW SENTENCE RELEVANCE OF PSYCHIATRIC CONDITION EXISTENCE OF SPECIAL CIRCUMSTANCES WHERE NON WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: REGINA v HQ [2003] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 31 October 2003
Judges: Spigelman CJ, O'Keefe J, Greg James J (Greg James J dissenting in part)

Background

The applicant pleaded guilty in the Gosford District Court to three offences arising from a single course of conduct on the night of 19 January 2002. The victim was his 15-year-old stepdaughter, the only father figure she had ever known. The offences involved two counts of attempted strangulation with intent to commit aggravated indecent assault, and one count of aggravated sexual intercourse without consent.

The sentencing judge, English DCJ, imposed sentences totalling an effective term of 13 years, with an effective non-parole period of 10 years and three months. The sentences were partially accumulated to reflect the fact that, while the offences arose from a single course of events, each count required a separate sentence.

The applicant sought leave to appeal against those sentences on six grounds, the last of which was that the sentences were manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the fact that the applicant would serve his sentences in strict protective custody
  • Whether sufficient weight was given to the applicant's psychiatric condition in mitigation
  • Whether the sentencing judge correctly identified special circumstances justifying a variation from the standard non-parole period proportions
  • Whether the non-parole period was slightly above the statutory proportion and, if so, whether that constituted error
  • Whether the partial accumulation of sentences was erroneous
  • Whether the overall sentences were manifestly excessive

Decision

The majority (Spigelman CJ and O'Keefe J) dismissed the appeal on all grounds. The sentencing judge was found to have been well aware that the applicant would serve his sentence in strict protective custody, having explicitly referred to this in her remarks on sentence. The majority accepted that the conditions of protective custody were a relevant mitigating factor under the sentencing legislation, but found no error in the weight given to it.

On psychiatric condition, the majority found that her Honour had appropriately considered the applicant's mental health, and that no error was established in the treatment of this factor. Similarly, the court found no error in the identification of, or approach to, special circumstances justifying departure from the standard ratio between the non-parole period and the balance of the sentence.

The majority found that any minor excess of the non-parole period above the strict statutory proportion did not constitute error, and that the partial accumulation of sentences was consistent with principle given the multiple distinct offences. Taking into account the extreme gravity of the offences, the breach of trust, the age and vulnerability of the victim, and the lasting harm caused, the majority concluded the sentences were not manifestly excessive.

Greg James J dissented in part. While agreeing the offences were extremely serious, his Honour considered that the effective non-parole period exceeded what was warranted in law, having regard particularly to the guilty plea (including its utilitarian value and the benefit of sparing the victim from giving evidence), and the onerous conditions of protective custody throughout the non-parole period. His Honour was in the minority on this point alone and, following the approach taken in an earlier decision, published his reasons in short form.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Protective custody is a legally recognised mitigating factor in sentencing in NSW, required to be taken into account under the Crimes (Sentencing Procedure) Act 1999, but its weight is a matter for the sentencing judge and will not automatically result in a reduction.
  • In dismissing the appeal, the majority confirmed that a non-parole period marginally above the statutory proportion does not, of itself, constitute a sentencing error sufficient to warrant intervention on appeal.
  • Partial accumulation of sentences is appropriate where a single course of conduct gives rise to multiple distinct offences, provided the overall structure reflects the totality of the criminality.
  • A dissenting judge in the Court of Criminal Appeal who is in the minority as to disposition may publish short-form reasons for their dissent without formally altering the outcome of the appeal.
  • The sentencing court's emphasis on punishment and deterrence for sexual offences committed against children by persons in positions of trust was affirmed as a legitimate and significant sentencing consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Bo Too (unreported, NSW Court of Criminal Appeal, 16 July 1992)
- R v Brindley (1993) 66 A Crim R 204
- R v Fisher (1989) 40 A Crim R 443
- R v GDR (1994) 35 NSWLR 376
- R v Simpson (2001) 53 NSWLR 704
- R v Totten [2003] NSWCCA 207