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Court of Criminal Appeal 11 August 2004

R v SCHWENKE

[2004] NSWCCA 289

Sexual offences

Citation: R v Schwenke [2004] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 11 August 2004
Judge(s): Hodgson JA, Hulme J, Smart AJ

Background

The respondent, a 22-year-old man, was a friend of the complainant's brother and was staying with the complainant's family at the time of the offence. He and the 13-year-old complainant had developed a boyfriend/girlfriend relationship. On the night in question, the complainant initiated contact, and the respondent sought and received her agreement before proceeding. When she said it hurt and asked him to stop, he did so immediately.

The respondent pleaded guilty to having sexual intercourse with a person under 14 years of age, contrary to s 66C of the Crimes Act, which carries a maximum penalty of 16 years imprisonment. District Court Judge Marien sentenced him to a three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act rather than imposing a custodial sentence.

The Crown appealed, arguing the sentence was manifestly inadequate. The Crown's position was that offences of this nature almost always warrant full-time imprisonment, and that the sentencing judge had given insufficient weight to the seriousness of the offence and certain aggravating factors.

  • Whether the three-year good behaviour bond was manifestly inadequate for an offence of sexual intercourse with a 13-year-old, such that the Crown appeal should be upheld
  • Whether the sentencing judge gave appropriate weight to the seriousness of the offence and relevant aggravating factors, including the complainant's pregnancy
  • Whether the respondent's particular personal circumstances justified a departure from the general sentencing approach for offences under s 66C

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. All three judges agreed that no specific error in the sentencing remarks had been identified by the Crown, meaning the appeal rested entirely on the ground of manifest inadequacy. The Court acknowledged that offences under s 66C are very serious and that custodial sentences are generally appropriate, although suspended sentences may sometimes be warranted.

Hulme J, delivering the principal judgment, conducted a careful review of the respondent's circumstances. These included cognitive and intellectual underdevelopment, removal from school in Year 6, a longstanding alcohol problem, a prior period of poor compliance with supervision, and a psychiatric admission in December 2003 for severe depression with suicidal ideation. Against these matters, the respondent had since September 2003 demonstrated compliance with supervision, maintained full-time employment, and engaged with alcohol counselling. His employer provided a strong positive reference.

On the aggravating factors raised by the Crown, Hulme J accepted that a position of trust and the complainant's pregnancy could in principle aggravate such an offence. However, his Honour found no relevant trust relationship on the facts, and noted that the pregnancy could not be directly attributed to the specific act charged. Hulme J also accepted that the respondent had not demonstrated the degree of remorse typically expected before such a lenient sentence is imposed. Despite this, the cumulation of the respondent's particular circumstances took the case well outside the ordinary sentencing range for s 66C offences.

Hulme J concluded that, once those individual features were properly taken into account, it was impossible to characterise the sentence as falling outside the legitimate exercise of the sentencing judge's discretion. Hodgson JA and Smart AJ both agreed with that reasoning and conclusion.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown appeal on the ground of manifest inadequacy requires more than a demonstration that the sentence was lenient; the sentence must fall outside the range of a legitimate sentencing discretion.
  • Offences under s 66C of the Crimes Act, involving sexual intercourse with a child under 14, are recognised as very serious and will generally attract full-time custodial sentences, though a suspended sentence or good behaviour bond may be appropriate in exceptional circumstances.
  • A sentencing court retains a broad discretion to depart from general sentencing patterns where an offender's particular circumstances, including intellectual underdevelopment, mental health difficulties, and evidence of rehabilitation, are sufficiently compelling.
  • Where a complainant's pregnancy cannot be directly attributed to the specific act of intercourse charged, it carries limited additional weight as an aggravating factor, even if the Court accepted the principle that pregnancy can aggravate such offences in appropriate cases.
  • The absence of genuine remorse or acceptance of wrongdoing is a significant consideration weighing against a non-custodial outcome, though it need not be determinative when other mitigating factors are sufficiently strong.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)
- Crimes Act 1900 (NSW), s 66C (sexual intercourse with a child aged 10 to 14 years)

Cases
- R v Philip Sea (unreported, NSWCCA, 13 August 1990)
- R v Skinner (1993) 72 A Crim R 151
- R v CJB [2000] NSWCCA 161
- R v McClymont (cited in argument; full citation not provided in the judgment text)