Citation: Regina v Brett James Fitzgerald [2004] NSWCCA 5
Court: Court of Criminal Appeal, New South Wales
Date: 6 February 2004
Judge(s): Sully J, Barr J, Newman AJ
Background
The respondent was in a relationship with the victim's mother for approximately ten years and assumed the role of a de facto stepfather to her daughter. Between November 2001 and June 2002, when the victim was aged fourteen to fifteen years, he committed seven sexual offences against her at various locations, including the family home. The offending included acts of indecent assault and multiple acts of sexual intercourse without consent in circumstances of aggravation.
The respondent pleaded guilty in the District Court to a single charge under section 66EA of the Crimes Act 1900 (NSW), which creates an offence of persistent sexual abuse of a child. Judge Walmsley SC sentenced him to six years and nine months' imprisonment with a non-parole period of three years and six months, incorporating a 25 per cent discount for the guilty plea and a finding of special circumstances.
The Crown appealed to the Court of Criminal Appeal, contending that the sentence was manifestly inadequate.
Legal Issues
- Whether the head sentence of nine years (before the guilty plea discount) was manifestly inadequate for an offence under section 66EA of the Crimes Act 1900
- Whether the 25 per cent discount applied for the guilty plea was appropriate
- Whether the sentencing judge's finding of special circumstances was open on the facts
- How section 66EA operates, including its requirements for conviction and the jury's obligations
Decision
The Court of Criminal Appeal unanimously dismissed the Crown appeal. Sully J, with whom Barr J and Newman AJ agreed, held that the sentencing judge's starting point of nine years' imprisonment was not manifestly inadequate once all relevant objective and subjective considerations were properly balanced.
The Court placed significant weight on the respondent's custodial conditions. While on remand and after sentence, he was held in strict protection with very limited time out of his cell, no work opportunities, and no access to education. Sully J described those conditions as "harsh in the highest degree." Although not itself determinative, this factor bore heavily on the assessment of subjective features, the finding of special circumstances, and the exercise of the Court's discretions.
The 25 per cent guilty plea discount was found to fall within the range of sound sentencing practice. The conclusion on special circumstances was similarly upheld. No error warranting intervention was identified in the sentencing judge's approach.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- Section 66EA of the Crimes Act 1900 (NSW) creates a distinct offence of persistent sexual abuse of a child, carrying a maximum of 25 years' imprisonment, where a person engages in conduct constituting a sexual offence on three or more separate occasions on separate days during any period.
- Under section 66EA(6), conviction requires the jury to be unanimously satisfied beyond reasonable doubt about the same three specific occasions of offending, although the jury need not be satisfied about their dates or order.
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that harsh custodial conditions, including extended cell confinement and lack of rehabilitation opportunities, are a legitimate and weighty consideration in sentencing, even if not determinative on their own.
- A 25 per cent discount for a guilty plea to a serious sexual offence was found to fall within an acceptable range and did not constitute error.
- No error was established in the sentencing judge's finding of special circumstances, which can affect the ratio between the non-parole period and the head sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW)
- Criminal Law Consolidation Act 1935 (SA)
Cases:
- R v D (1997) 69 SASR 413
- S v The Queen (1989) 168 CLR 266