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Court of Criminal Appeal 20 December 2004

R v Wilkinson

[2004] NSWCCA 468

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE TWO MATTERS ON FORM 1 OPERATION, POOR HEALTH, PROTECTION

Citation: [2004] NSWCCA 468
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2004
Judge(s): McColl JA, Levine J, Hidden J (all agreeing)

Background

The appellant pleaded guilty in the District Court to one count of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J of the Crimes Act. Two further charges under the same provision were listed on a Form 1 (meaning they were taken into account at sentencing without separate conviction). The offences were committed against a complainant aged thirteen to fourteen years who also had a mild intellectual disability, placing her mental age at eight to nine years. The appellant had known the complainant through a prior relationship with her mother.

The offences spanned from approximately April 2001 to September 2002 and came to light when the complainant became pregnant as a result of one of them. During his police interview, the appellant voluntarily provided the information that gave rise to the principal charge and one of the Form 1 matters. Without that co-operation, those charges could not have been framed.

The District Court sentenced the appellant to eighteen years imprisonment with a non-parole period of thirteen and a half years, to commence on the date of his arrest on 9 October 2002. He sought leave to appeal against that sentence on several grounds.

  • Whether the sentencing judge erroneously had regard to the standard non-parole period for s 61J offences, when that provision did not apply to the case on its facts
  • Whether the sentencing judge applied the correct approach to Form 1 matters
  • Whether adequate weight was given to the appellant's plea of guilty, his co-operation with police, his poor health, and his need for protection in custody

Decision

The Court of Criminal Appeal found that the original sentence was infected by error. In particular, the Court accepted that the sentencing judge had impermissibly used the standard non-parole period as a reference point in circumstances where it was not applicable, and that insufficient weight had been given to the significant mitigating factors present in the case.

On the Form 1 matters, the Court confirmed the correct approach: the sentencing judge must take those additional offences into account in arriving at a single sentence for the principal offence, rather than treating them as attracting separate, additional punishment. The offences on the Form 1 were relevant to calibrating the overall sentence but did not operate as independent charges imposing additional terms.

The Court gave close attention to the mitigating factors. The appellant's plea of guilty, his extensive co-operation with police (which was critical to establishing two of the three charges), and an inference of genuine remorse collectively justified a significant reduction. The appellant's serious cardiac condition, his experience of frequent angina attacks in custody, difficulties accessing timely medication, and the restrictive conditions of his protection status were all treated as relevant to the exercise of the sentencing discretion.

Balancing the undeniable gravity of the offences, including the complainant's young age and intellectual disability and the wider pattern of offending reflected in the appellant's extensive criminal history, against those mitigating factors, the Court assessed a starting point of sixteen years and applied a twenty-five percent reduction, arriving at a sentence of twelve years. The Court declined to depart from the standard statutory non-parole period ratio, holding that a minimum of nine years was necessary to reflect the seriousness of the criminality involved.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence passed in the District Court quashed
  • Appellant sentenced to imprisonment for twelve years, with a non-parole period of nine years, commencing 9 October 2002
  • Eligible for release on parole on 8 October 2011

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period under the Crimes (Sentencing Procedure) Act cannot be used as a reference point where its statutory preconditions are not satisfied; doing so constitutes an error warranting intervention on appeal.
  • Form 1 matters are to be incorporated into the sentence for the principal offence rather than treated as generating additional discrete punishment; their role is to inform the overall sentencing exercise.
  • A substantial discount from the sentencing starting point was warranted where an appellant's co-operation with police was directly responsible for enabling additional charges to be brought, combining with a guilty plea and demonstrated remorse.
  • Poor health and restrictive custody conditions (including limited exercise, limited access to education, and delays in receiving medication) are legitimate factors in the sentencing discretion, even where the offending is serious.
  • An extensive history of prior sexual offending remained highly relevant, but under the principle in Veen v The Queen [No 2], the sentence could not be increased beyond what was proportionate to the instant offending solely on the basis of that record.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act (NSW)

Cases
- R v Wilkinson (CCA, unreported, 6 October 1983)
- R v Ohar [2004] NSWCCA 83
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14
- R v McCarroll [1999] NSWCCA 237
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Ellis (1986) 6 NSWLR 603
- R v L (CCA, unreported, 17 June 1996)
- R v Kain [2004] NSWCCA
- Veen v The Queen [No 2] (1988) 164 CLR 465