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10
Court of Criminal Appeal 20 April 2005

Regina v Pearson

[2005] NSWCCA 116

Sexual offences
CRIMINAL LAW SENTENCE AGGRAVATED INDECENT ASSAULT

Citation: Regina v Pearson [2005] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 20 April 2005
Judge(s): James J, Hislop J, Hall J

Background

The appellant, Sharon Mary Pearson, pleaded guilty in the District Court to three counts of aggravated indecent assault, one count of using a child under 14 for pornographic purposes, and one count of being a principal in the second degree to hindering the investigation of a serious indictable offence. The victims of the sexual offences were girls aged 13 at the relevant time. The offences occurred across several occasions between late 2002 and mid-2003, and were committed alongside a male co-offender with whom the appellant was in a relationship.

Judge English of the District Court sentenced the appellant on 30 June 2004, after the proceedings had been conducted with both the appellant and co-offender sentenced together in a single set of remarks. The aggregate effect of the sentences was a total of three and a half years' imprisonment, with a combined non-parole or fixed-term period of two years, commencing 25 March 2004.

The appellant sought leave to appeal, raising several grounds challenging the approach taken by Judge English in sentencing.

  • Whether the sentencing judge impermissibly double-counted the complainant's age as both an element of the offence and an aggravating feature of vulnerability, contrary to the principle in The Queen v De Simoni
  • Whether insufficient weight was given to the appellant's pleas of guilty
  • Whether the sentencing judge made a mistake of fact regarding the appellant's criminal antecedents
  • Whether certain findings of fact were unsupported by evidence
  • Whether the overall sentences were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but ultimately dismissed the appeal. The Court found that certain errors had in fact occurred in the sentencing process, including findings of fact that were not supported by evidence to the requisite standard and that did not arise from the charges on the indictment. The Court characterised these as substantive, not merely technical, errors.

On the double-counting issue, the Court considered whether the sentencing judge had treated the complainant's age as both an element of the offences charged and as a separate aggravating feature relating to vulnerability. This ground was examined carefully given the established principle that a sentencing court cannot treat a circumstance that is already an ingredient of the offence as an additional aggravating factor.

Despite identifying these errors, the Court applied the principles from House v The King (1936) 55 CLR 499 and considered whether a different sentence was "warranted in law" under section 6(3) of the Criminal Appeal Act 1912. After close consideration of the full factual background and the remarks on sentence, the Court concluded it could not say that any other sentence was warranted. The number and seriousness of the offences, and the objective gravity established by the evidence, meant the sentences imposed by Judge English were not disturbed.

Orders Made

  • Leave to appeal against sentences granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that identifying error in a sentencing judge's reasoning does not automatically result in a different sentence being imposed. The appellate court must also be satisfied that another sentence is "warranted in law" before intervening.
  • A sentencing court cannot treat a circumstance that forms an element of an offence as a separate aggravating feature when determining sentence, consistent with the principle established in The Queen v De Simoni (1981) 147 CLR 383.
  • Findings of fact relied upon in aggravation must be established to the requisite standard and must arise from the indictment; reliance on unproven or extraneous facts constitutes a substantive error in the sentencing process.
  • In dismissing the appeal, the Court applied section 6(3) of the Criminal Appeal Act 1912, under which the appellate court may pass a different sentence if one is warranted in law, but found the objective gravity of multiple serious child sexual offences supported the sentences that had been imposed.
  • Where both errors and substantial objective seriousness are present, the appellate court must weigh both considerations when deciding whether to intervene, rather than treating the identification of error as determinative.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 91G(1), 315(1)(a), 345, 346, 347, 547B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- House v The King (1936) 55 CLR 499
- The Queen v De Simoni (1981) 147 CLR 383
- R v Astill (No. 2) (1992) 64 A Crim R 289
- R v Khouzame [2000] NSWCCA 505
- R v Cocking [1999] NSWCCA 311
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- R v Castles [2005] NSWCCA 79
- R v Cramp [2004] NSWCCA 264
- R v Hanslow [2004] NSWCCA 163
- R v Ingrassia (1996) 41 NSWLR 447
- R v Johnstone [2004] NSWCCA 307
- R v Mohamadin [2004] NSWCCA 401
- R v Scott [2003] NSWCCA 286
- R v Wickham [2004] NSWCCA 193