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18
Court of Criminal Appeal 7 May 2004

R v Slack

[2004] NSWCCA 128

Sexual offences
CRIMINAL LAW NO QUESTION OF PRINCIPLE

Citation: Slack v R [2004] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2004
Judge(s): Grove J, Simpson J, Sperling J

Background

The appellant was convicted by a jury in the District Court on two counts of aggravated sexual intercourse without consent under section 61J of the Crimes Act 1900, the aggravating circumstance being that the complainant was under 16 years of age. The offences were alleged to have occurred between September and October 2000. The appellant was the father of the complainant's close friend and the complainant was a guest in his home at the relevant time.

At sentencing, Morgan DCJ imposed five years' imprisonment on each count, with a non-parole period of three years, to be served concurrently from 26 June 2003. The appellant challenged both the conviction and the severity of the sentence on appeal.

  • Whether the jury's verdicts were unreasonable and could not be supported on the evidence
  • Whether the sentences imposed were manifestly excessive having regard to the objective features of the offences, in particular the nature and degree of the penetration involved
  • Whether the sentencing judge erred in treating the offences as "extremely serious" without properly contextualising them within the full range of conduct captured by section 61J
  • Whether a victim impact statement could be used to establish adverse facts against an accused to the criminal standard of proof

Decision

Conviction appeal dismissed. The Court unanimously dismissed the appeal against conviction. The Court found that the alleged discrepancies and inconsistencies in the complainant's evidence did not compel a reasonable doubt about the core account of the offences. Those matters had been available to defence counsel to canvass with the jury, and the verdicts were not unreasonable on the evidence.

Sentence found to be manifestly excessive. The Court found that the sentencing judge had failed to properly contextualise the offences within the range of conduct captured by section 61J. That provision encompasses a wide spectrum of conduct, and the maximum penalty of 20 years' imprisonment must be understood as addressing significantly more serious forms of sexual misconduct. The offences in this case involved digital penetration, which on the evidence had to be assumed to have been to a slight degree, with no medical evidence of physical injury.

The trust relationship was noted but did not alter the outcome. All three judges acknowledged the seriousness of the breach of trust involved: the appellant was entrusted with the complainant's care while she was a guest in his home. Simpson J specifically noted that the criminality could not be assessed solely through the lens of the degree of penetration, and that the relationship of trust was a significant aggravating feature. Nonetheless, the Court was unanimous that the original sentences were manifestly excessive given the objective features of the offending.

Victim impact statement. The Court confirmed that a victim impact statement may be given weight in determining the appropriate punishment, but unsworn and untested material of that kind is unlikely to be sufficient to establish adverse facts against an accused where those facts must be proved to the criminal standard.

Orders Made

The majority orders, as proposed by Grove J and agreed to by Simpson J, were:

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentences of the District Court quashed; in lieu thereof, the appellant sentenced on each count to three years' imprisonment commencing 26 June 2003, with a non-parole period of 18 months commencing 26 June 2003 and expiring 25 December 2004
  • Sentences to be served concurrently
  • Appellant directed to be released to parole on 25 December 2004

Note: Sperling J proposed the lesser sentences of two years with a one-year non-parole period. The majority adopted the higher figure of three years with an 18-month non-parole period.

Key Takeaways

  • A sentencing court must contextualise an offence within the full range of conduct captured by the relevant statutory provision. Failing to do so, and characterising as "extremely serious" conduct that sits at the lower end of that range, can constitute error warranting intervention on appeal.
  • Under section 61J of the Crimes Act 1900, the maximum penalty of 20 years' imprisonment is calibrated to address the most serious instances of offending; sentences for less serious conduct within the section's reach must be proportionate to that scale.
  • Where the degree of penetration is unspecified in the evidence, a sentencing court must proceed on the basis that it was to the slightest degree, consistent with the definition of sexual intercourse in section 61H.
  • A victim impact statement may inform the assessment of punishment but does not, without more, establish adverse facts to the criminal standard required in sentencing proceedings.
  • In dismissing the conviction appeal, the Court confirmed that inconsistencies in a complainant's evidence do not automatically mandate a reasonable doubt, particularly where those matters were available to be addressed before the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28

Cases:
- Ibbs v The Queen (1987) 163 CLR 447
- M v The Queen (1994) 181 CLR 487
- Siganto v The Queen (1998) 194 CLR 656
- Henry (1999) 46 NSWLR 346
- Jones (1997) 149 ALR 598
- MFA (2002) 77 ALJR 139
- R v Dent (NSWCCA, 14 March 1991, unreported)
- Ford (NSWCCA, 9 April 1998, unreported)
- Hall (NSWCCA, 28 September 1995, unreported)
- RKB (NSWCCA, 30 June 1992, unreported)