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Court of Criminal Appeal 19 November 2003

Regina v Martin

[2003] NSWCCA 354

Sexual offences
CRIMINAL LAW AND PRACTICE SENTENCE ACCUMULATION PAROLE PERIOD

Citation: Regina v Martin [2003] NSWCCA 354
Court: NSW Court of Criminal Appeal
Date: 19 November 2003
Judge(s): Handley JA, Grove J, Adams J

Background

The applicant pleaded guilty in the Gosford District Court to two charges of indecent assault and one charge of sexual intercourse with a child aged between ten and sixteen years while the child was under his authority. Two further similar offences were taken into account on a Form 1. The victim was the applicant's natural daughter, and the offending spanned approximately thirteen years, from when she was around eight years old until she was approximately twenty-one.

The sentencing judge (English DCJ) imposed a structured set of sentences, including a six-year head sentence with a four-year-and-six-month non-parole period on the principal count. Her Honour declined to find special circumstances to vary the statutory ratio between the non-parole period and the head sentence.

The applicant sought leave to appeal on the grounds that the sentencing judge's findings on remorse were unreasonable, and that the non-parole period was disproportionate given the accumulation of sentences.

  • Whether the sentencing judge's findings regarding the applicant's lack of remorse were reasonably open on the evidence
  • Whether the non-parole period was disproportionate to the total effective sentence when the accumulated sentences were considered as a whole
  • Whether it was appropriate for the sentencing judge to make adverse comments about the victim's mother, who was neither a party nor a witness in the proceedings

Decision

The Court of Criminal Appeal upheld the sentencing judge's findings on remorse. Grove J, with whom Handley JA and Adams J agreed, concluded that the sentencing judge was in a superior position to assess credibility. The timing of the applicant's counselling, the character of his letter to the victim, the nature of his interview responses, and the limited weight attributable to the psychological reports all supported a conclusion that genuine remorse had not been established. The Court noted that seeking relief from pangs of conscience is not the same thing as remorse.

On the accumulation issue, Grove J accepted that while special circumstances had not been found, the effective structure of the sentences meant that the non-parole period had not been properly adjusted to reflect the total sentence as a whole. In this particular case, the Court considered it necessary to reduce the non-parole period to make clear that the issue had not been overlooked and that proportionality had been given due weight. Grove J was careful to note this did not establish a general principle that accumulation of sentences always requires a precise statutory adjustment.

Adams J agreed with the outcome but added a separate observation concerning the sentencing judge's adverse comments about the victim's mother. Her Honour had described the mother as someone who "purports to call herself a mother," implying she had acted with complete irresponsibility in that role. Adams J found this comment was inappropriate. The victim's mother was not a witness, had made no statement, was not represented, and had no opportunity to respond. Adams J expressed the view that judges must restrain themselves from criticising persons who have had no opportunity to reply, describing such comments as contrary to the proper judicial function and simply unfair.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Non-parole period on the third count quashed and replaced with a non-parole period of four years and one month, commencing 6 December 2003 and expiring 5 January 2008
  • First date of eligibility for parole specified as 5 January 2008
  • Non-publication order made in respect of any material identifying the complainant

Key Takeaways

  • A sentencing judge's finding on remorse will not be disturbed on appeal where it was reasonably open on the evidence, particularly where the judge had the benefit of observing the offender give evidence and the relevant indicators were equivocal or self-serving.
  • Seeking relief from feelings of guilt or pangs of conscience is not equivalent to remorse for sentencing purposes, as confirmed by the Court of Criminal Appeal in this decision.
  • Where sentences are accumulated, the proportionality between the overall effective head sentence and the non-parole period requires active consideration, even where special circumstances have not been found.
  • In dismissing the challenge to the remorse finding but reducing the non-parole period, the Court signalled that accumulation can affect the practical operation of the statutory ratio without necessarily establishing special circumstances.
  • Adverse judicial comment about a person who is not a party, witness, or otherwise represented in the proceedings is contrary to proper judicial function; Adams J held that fairness requires judges to refrain from such criticism where the person has had no opportunity to respond.

Legislation and Cases Referenced

Legislation
- Provisions governing the ratio between non-parole periods and head sentences (the specific Act was not identified in the provided text, but the reference is to the standard statutory non-parole period provisions operative in NSW at the time)

Cases
- No cases were cited in the provided text