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Court of Criminal Appeal 6 February 2003

R v Shepherd

[2003] NSWCCA 9

Sexual offences
SEXUAL INTERCOURSE WITHOUT CONSENT VICTIM AN ELDERLY WOMAN AT HOME PLEA OF GUILTY SPECIAL CIRCUMSTANCES 4 YEARS, NON PAROLE PERIOD 2 YEARS.

Citation: R v Shepherd [2003] NSWCCA 9
Court: Court of Criminal Appeal, New South Wales
Date: 6 February 2003
Judge(s): Heydon JA, Hulme J, Hidden J

Background

The respondent, a 19-year-old Aboriginal man, pleaded guilty in the District Court to sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence was committed at night against a 69-year-old woman inside her own home. Williams DCJ described the offence as a "very serious matter" and identified the victim's age and the home setting as "very severe aggravating features."

Williams DCJ sentenced the respondent to four years' imprisonment with a non-parole period of two years. His Honour found special circumstances, producing a non-parole period that was proportionally shorter than the statutory default. A discount of one year had already been applied for the guilty plea.

The Crown appealed to the Court of Criminal Appeal, arguing that the sentence was manifestly inadequate and failed to reflect the sentencing judge's own observations about the seriousness of the offence and the need for both general and specific deterrence.

  • Whether the head sentence of four years and non-parole period of two years were manifestly inadequate for a mid-range offence of sexual intercourse without consent under s 61I of the Crimes Act 1900.
  • Whether sufficient weight was given to the aggravating features of the offence, including the victim's vulnerability and the home setting.
  • Whether the respondent's youth and Aboriginal background were properly treated as mitigating factors.
  • Whether the non-parole period, even if special circumstances were warranted, adequately reflected the respondent's criminality.

Decision

The Court divided. Hulme J (dissenting) concluded that the sentence was manifestly inadequate, reasoning that the offence fell at least at the midpoint of seriousness for s 61I offences given the victim's age, defencelessness, and the violation of her home. His Honour noted that a medium-to-high risk of reoffending had been assessed by a psychologist, and that youth carried little mitigating weight where the offender had conducted himself as an adult. Hulme J would have re-sentenced to a head term of six years with a non-parole period of three years.

Hidden J (with whom Heydon JA agreed) acknowledged that the objective facts were such that a significantly higher sentence "might properly have been imposed" and that the sentence was "undoubtedly lenient." However, his Honour found that the sentence fell within the mid-range of Judicial Commission statistics for s 61I offences and was broadly consistent with comparable cases decided by the Court of Criminal Appeal.

Hidden J concluded that leniency alone does not satisfy the threshold for intervention on a Crown appeal. The relevant question is whether the sentence demonstrates such inadequacy as to call for the Court's intervention, and the majority held it did not. The appeal was dismissed by majority.

Orders Made

  • Appeal dismissed by majority.

Key Takeaways

  • In dismissing the Crown appeal, the majority confirmed that a sentence may be "undoubtedly lenient" without reaching the threshold of manifest inadequacy required to justify appellate intervention on a Crown appeal.
  • A conviction for sexual intercourse without consent under s 61I of the Crimes Act 1900 is aggravated where the victim is elderly and defenceless and the offence is committed inside the victim's home, placing such conduct at least at the mid-range of objective seriousness.
  • Where an offender commits a serious sexual assault as an adult, youth carries limited mitigating weight, particularly where there is no suggestion the offender lacked understanding of the nature of their conduct.
  • Judicial Commission sentencing statistics, while to be approached with caution, formed part of the majority's analysis in assessing whether the sentence fell within an acceptable range.
  • The Court of Criminal Appeal confirmed that an Aboriginal offender may receive consideration under the principles in R v Fernando (1992) 76 A Crim R 58, though the extent of that consideration depends on the specific subjective circumstances established at sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Criminal Appeal Act 1912 (NSW)

Cases
- Ibbs v R (1987) 163 CLR 447
- Veen v R [No 2] (1988) 164 CLR 465
- R v Peel (1971) 1 NSWLR 247
- Dodd (1991) 57 A Crim R 349
- R v Fernando (1992) 76 A Crim R 58
- R v Previtera (1997) 94 A Crim R 76
- R v Spinks (unreported, CCA, 7 August 1997)
- R v Preston (unreported, CCA, 9 April 1997)
- R v Wotherspoon (unreported, CCA, 4 December 1992)
- R v Balfour (unreported, CCA, 23 July 1996)
- R v Radford (unreported, CCA, 4 March 1998)
- R v Hanley (unreported, CCA, 9 October 1998)
- R v Henry (1999) 46 NSWLR 346
- R v Tran [1999] NSWCCA 109
- R v Tony Giam (No 2) [1999] NSWCCA 378
- R v AEM Snr [2002] NSWCCA 58
- R v Simpson (2001) 53 NSWLR 704