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Court of Criminal Appeal 17 March 2003

R v Lee

[2003] NSWCCA 63

Sexual offencesAssault & violence

Citation: R v Lee [2003] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 17 March 2003
Judge(s): Wood CJ at CL; Studdert J

Background

The applicant pleaded guilty before Judge Payne in the District Court to a charge of assault with an act of indecency contrary to s 61N(2) of the Crimes Act, which carries a maximum penalty of ten years imprisonment. The victim was an eight-year-old child whom the applicant lured into a stairwell under the pretence of taking photographs, before touching her inappropriately. He was also sentenced on a further schedule offence of aggravated indecent assault on a child aged ten or eleven, committed while posing as a medical practitioner.

The District Court sentenced the applicant to four years imprisonment with a non-parole period of two years, commencing 2 August 2001. Her Honour allowed a twenty per cent discount for the early guilty plea, recognised special circumstances justifying a longer-than-usual parole period, and accepted the applicant's remorse as genuine.

The applicant, who had a prior criminal history including a suspended Queensland sentence for indecent treatment of children, represented himself on appeal and filed numerous written submissions raising multiple grounds of complaint against the sentence.

  • Whether the sentencing judge erred in the sentence imposed for the primary offence under s 61N(2) of the Crimes Act
  • Whether the applicant's legal representation at sentencing was incompetent, thereby vitiating the sentencing process
  • Whether the sentencing judge was biased or acted unfairly by reason of evidence heard in a voir dire relating to charges on which the applicant was acquitted or discharged
  • Whether fresh medical evidence provided to the Court of Criminal Appeal warranted a different sentencing outcome
  • Whether assistance provided to NSW Police and Corrective Services was a relevant consideration on the appeal

Decision

Studdert J reviewed all written and oral submissions filed by the self-represented applicant and found no error in either the sentencing process or the sentence itself. His Honour was satisfied that the sentencing judge correctly identified the objective seriousness of both the principal offence and the schedule offence, and appropriately weighed the relevant mitigating and aggravating factors, including the applicant's early plea, genuine remorse, unfavourable criminal history, and the presence of prior suspended sentence and bail conditions at the time of offending.

On the question of alleged legal incompetence, Studdert J noted that the sentencing transcript did not support any finding of improper conduct by trial counsel. The applicant's assertion that he was told to agree with everything the prosecutor said was not accepted as a basis for impugning counsel, given that the applicant had given evidence under oath and no contrary evidence had been adduced.

The bias allegation was similarly rejected. Studdert J observed that the sentencing remarks demonstrated careful consideration of both objective and subjective factors, with no indication that any material from the voir dire had been taken into account. There was no support in the material for any assertion of unfairness or bias.

Regarding the applicant's claimed assistance to police and corrective services, the Court noted that the documentation provided was insufficient for useful evaluation. In any event, Studdert J held that such material was not relevant to whether error had occurred in the sentencing below; it remained available for consideration by the Parole Board or a future sentencing court.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Documents relating to intelligence assistance to be extracted from the court file, sealed in an envelope, retained with the court papers, and released only by order of a judge of the Court of Criminal Appeal

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a twenty per cent utilitarian discount for an early guilty plea was an appropriate sentencing consideration where two young victims were spared the ordeal of giving evidence.
  • Allegations of legal incompetence at sentencing require more than bare assertion: the Court will not readily conclude that counsel acted improperly or that sworn evidence was untruthful, absent cogent contrary evidence.
  • No error was established in the sentencing judge's approach to community protection and deterrence as primary considerations for offences involving the predatory targeting of young children.
  • Where an applicant has provided assistance to police or corrective services, that material does not automatically bear on a sentence appeal; it may instead be taken into account by the Parole Board or a future sentencing court.
  • Under s 61N(2) of the Crimes Act, the maximum penalty for assault with an act of indecency is ten years imprisonment; the Court confirmed that a four-year head sentence with a two-year non-parole period, including a finding of special circumstances, was not demonstrated to be excessive on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 61N(2) (assault with act of indecency; maximum penalty ten years imprisonment)

Cases cited: No cases were cited in the provided text of the judgment.