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Court of Criminal Appeal 8 April 2005

REGINA v. CAMPBELL

[2005] NSWCCA 125

Sexual offencesAssault & violence

Citation: Regina v Campbell [2005] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 8 April 2005
Judge(s): Grove J, Howie J, Hall J (Hall J delivering the principal judgment)

Background

The applicant, an uncle and carer of his niece, pleaded guilty in the District Court to seven counts of aggravated indecent assault and one count of assault occasioning actual bodily harm under the Crimes Act 1900. The offences were committed between June 1993 and June 1996, when the complainant was under 16 years of age. She had been orphaned following the deaths of both parents and was living in the applicant's care and under his authority at the time of the offending.

The District Court (Ellis DCJ) sentenced the applicant on 26 May 2004, imposing an effective total sentence of seven years imprisonment with a non-parole period of four years commencing 25 May 2004. The sentencing judge found the criminality fell within the worst category of the range for aggravated indecent assault, noting the use of violence, emotional manipulation, gratuitous cruelty, and exploitation of the complainant's vulnerability.

The applicant filed an application for leave to appeal against severity of sentence on 21 December 2004, challenging the weight given to his rehabilitation and contending the sentence was manifestly excessive.

  • Whether the sentencing judge gave sufficient weight to the applicant's rehabilitation during the period of delay between offending and sentencing.
  • Whether the effective total sentence of seven years was manifestly excessive for the offences as charged and found.
  • Whether miscalculations by the sentencing judge in respect of two individual counts warranted revision of the total effective sentence.

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had plainly and repeatedly taken the applicant's rehabilitation into account. The Remarks on Sentence made specific reference to the applicant's abstinence from alcohol, his good prospects of rehabilitation, and the reduced likelihood of reoffending. The Court rejected the submission that the sentencing judge had acknowledged rehabilitation without actually treating it as a mitigating factor.

On the second ground, the Court rejected the contention that the sentence was manifestly excessive. The sentencing judge's unchallenged finding that the offending fell within the worst category of aggravated indecent assault meant that attempts by the applicant to draw favourable comparisons with sentences imposed in other cases were of limited utility. Those comparisons could not demonstrate error in a total effective sentence of seven years with a four-year non-parole period.

The Court also noted, without it having been raised by the parties, that the sentencing judge had made an apparent arithmetical error in calculating the discounted terms for two individual counts. Applying the 20 per cent guilty plea discount to the seven-year maximum should have produced sentences of five years and six months, not six years, for each of those counts. However, the Court found this error in two out of eight counts did not warrant revision of the total effective sentence, which had been reached by accumulating all eight counts.

Orders Made

  • Application for leave to appeal against severity of sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that rehabilitation during the delay between offending and sentencing is a legitimate consideration on sentence, consistent with the approach in Regina v Law; ex parte A-G (1995) 84 A Crim R 142, but the critical question is whether the sentencing court in fact applied that factor, not merely whether it was mentioned.
  • Where a sentencing judge makes repeated and specific reference to rehabilitation as bearing on prospects of reoffending, an appellate court will not readily accept that the factor was overlooked or given insufficient weight.
  • A finding that offending falls within the worst category of the relevant offence type significantly constrains the utility of sentence comparisons drawn from cases involving less serious factual circumstances.
  • Arithmetical errors in calculating discounted terms for individual counts will not necessarily lead to revision of a total effective sentence if the overall sentence remains within an appropriate range for the totality of offending.
  • Aggravating factors recognised under the Crimes (Sentencing Procedure) Act 1999, including abuse of trust, vulnerability of the victim, gratuitous cruelty, and a series of criminal acts, featured prominently in the Court's assessment that the sentence was not manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(b), (d), (f), (g), (l), (m)

Cases
- Regina v Law; ex parte A-G (1995) 84 A Crim R 142 (Qld Court of Appeal)
- SP [2004] ACTCA 16
- CDH [2002] NSWCCA 103
- AJC [2001] NSWCCA 388
- ICC [2002] NSWCCA 119
- MA [2001] NSWCCA 30
- VJV [2004] NSWCCA 415