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Court of Criminal Appeal 28 February 2003

Regina v Giddy

[2003] NSWCCA 46

Sexual offences
CRIMINAL LAW APPEAL SEVERITY AGGRAVATED INDECENT ASSAULT EARLY PLEA OF GUILTY IMMEDIATE ADMISSIONS

Citation: Regina v Giddy [2003] NSWCCA 46
Court: New South Wales Court of Criminal Appeal
Date: 28 February 2003
Judge(s): O'Keefe J; Bell J

Background

The applicant, a 70-year-old retired schoolteacher and former senior gymnastics coach, pleaded guilty in the District Court to one count of aggravated indecent assault contrary to s 61M of the Crimes Act 1900. The offence involved the indecent touching of a 13-year-old girl at a gymnasium in 1992. No violence was used, and there were no further incidents involving the applicant and the victim.

The applicant had been arrested in March 1997 and remained on bail for nearly six years before being sentenced in December 2002, some ten years after the offence was committed. He had no prior criminal record and made immediate admissions upon arrest.

The matter came before the District Court only because the prosecution had elected to have it dealt with alongside other charges, of which the applicant was ultimately acquitted. The offence would ordinarily have been handled in the Local Court, where the maximum penalty is two years' imprisonment rather than the seven-year maximum applicable in the District Court.

  • Whether the District Court judge erred by failing to consider, or adequately consider, alternatives to full-time imprisonment before imposing an 18-month custodial sentence with a nine-month non-parole period.
  • Whether the sentence imposed was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal found that the sentencing judge had committed appellable error. The judge's Remarks on Sentence revealed an approach that treated the existence of power to impose full-time custody as effectively determinative of the question, without ever turning to consider whether an alternative disposition, such as a suspended sentence, was appropriate. The Court cited Dinsdale v The Queen (2000) 202 CLR 321, in which the High Court confirmed that a sentencing judge must separately and explicitly consider whether a suspended sentence is appropriate before imposing immediate imprisonment.

Having identified that error, the Court of Criminal Appeal proceeded to resentence the applicant under s 6(3) of the Criminal Appeal Act 1912. The Court weighed a range of factors: the objective seriousness of the offence and the breach of trust it involved; the absence of violence or physical harm; the early guilty plea and immediate admissions; the applicant's age, adverse medical condition, and remorse; the significant delay between charge and sentence; the absence of prior convictions; and the low risk of reoffending.

The Court also took into account that the matter was fundamentally one suited to the Local Court, so the lower two-year maximum penalty was a relevant reference point in assessing the appropriate sentence, notwithstanding that the case had been dealt with in the District Court.

Weighing all those factors, the Court concluded that the original sentence of 18 months was manifestly excessive and substituted a 12-month term with its operation suspended, effective from the date of the appeal hearing.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed below set aside.
  • In substitution, the applicant sentenced to 12 months' imprisonment, commencing 5 December 2002 and expiring 4 December 2003, with the operation of that sentence suspended from 26 February 2003 upon the applicant entering a good behaviour bond for the balance of that period.

Key Takeaways

  • A sentencing judge must expressly turn their mind to whether a suspended sentence is appropriate before imposing immediate imprisonment. Proceeding directly to full-time custody after concluding that such a sentence is legally available constitutes an error of principle sufficient to enliven appellate intervention.
  • The Court of Criminal Appeal confirmed the High Court's statement in Dinsdale v The Queen that neither the determination that imprisonment is warranted, nor the fixing of its length, may substitute for the separate question of whether suspension is an appropriate disposition.
  • Where a matter has been elevated to the District Court through prosecutorial election but is objectively suited to the Local Court, the lower court's maximum penalty remains a relevant sentencing consideration.
  • Significant delay between charging and sentencing, prolonged bail periods, an early guilty plea, immediate admissions, advanced age, adverse health, genuine remorse, and an absence of prior convictions can, in combination, support a non-custodial outcome even for offences involving a breach of trust.
  • In resentencing following an identified error, the Court of Criminal Appeal may substitute its own assessment of the appropriate sentence, having regard to all relevant mitigating and aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M (aggravated indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (mitigating and aggravating factors)
- Criminal Appeal Act 1912 (NSW), s 6(3) (power to resentence)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321