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13
Court of Criminal Appeal 20 July 2005

R v ABS

[2005] NSWCCA 255

Sexual offences
CROWN APPEAL

Citation: R v ABS [2005] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 20 July 2005
Judge(s): Buddin J, Brownie AJA, Latham J

Background

The respondent, a 38-year-old man, pleaded guilty in the District Court to six charges of aggravated sexual intercourse without consent committed against his stepdaughter over an 18-month period when she was aged between 12 and 14. Four further similar charges were listed on a Form 1 document to be taken into account at sentencing. Each offence carried a maximum penalty of 20 years' imprisonment.

When the matter came before the sentencing judge (Goldring DCJ) in the District Court, his Honour made an order under s 11(1) of the Crimes (Sentencing Procedure) Act 1999, adjourning the sentencing proceedings until 1 April 2006, approximately 12 months later. The adjournment was intended to allow the respondent to participate in a community-based therapeutic program for sex offenders. The respondent had some mitigating factors, including no prior convictions, early guilty pleas, genuine remorse, and clinical assessments indicating a low risk of re-offending, though he remained unable to explain his conduct or demonstrate sufficient insight into its effect on the victim.

The Crown appealed against the adjournment order, arguing it was inappropriate given the serious objective criminality involved. A s 11(1) order constitutes a "sentence" for the purposes of s 2 of the Criminal Appeal Act 1912, making it amenable to a Crown appeal.

  • Whether the District Court erred in making a s 11(1) adjournment order in circumstances involving offences of serious objective criminality that would ordinarily attract significant full-time custodial sentences
  • Whether the sentencing judge gave disproportionate weight to the respondent's rehabilitation prospects in deciding to defer sentencing
  • Whether unnecessary delay in resolving sentencing proceedings gives rise to unfairness and injustice

Decision

The Court of Criminal Appeal, in reasons delivered by Buddin J (with Brownie AJA and Latham J agreeing), allowed the Crown appeal and quashed the s 11(1) order made in the District Court.

Buddin J found that the sentencing judge had fallen into clear error by suggesting, when making the adjournment order, that some non-custodial outcome might be available at the end of the remand period. Given the serious objective criminality of the offences, the Court held that significant full-time custodial sentences were plainly required. The District Court's approach treated rehabilitation as the decisive sentencing factor, which was not a proper exercise of the sentencing discretion.

The Court also emphasised that rehabilitation, while a legitimate and important consideration, must take its place alongside all of the sentencing purposes identified in s 3A of the Crimes (Sentencing Procedure) Act 1999. It cannot override those other purposes, particularly where the offending is of a gravely serious nature.

On the question of delay, the Court observed that unless postponement of sentencing is genuinely essential to achieve a just result, delay operates unfairly to both the offender and the community. The matter was remitted to the District Court for sentencing to proceed as soon as practicably possible, and bail was revoked.

Orders Made

  • The appeal was allowed
  • The s 11(1) adjournment order made in the District Court was quashed
  • The matter was remitted to the District Court to be relisted before the sentencing judge for the sentencing proceedings to be resolved as soon as practicably possible
  • The respondent was taken into custody (bail revoked)

Key Takeaways

  • A s 11(1) adjournment order under the Crimes (Sentencing Procedure) Act 1999 constitutes a "sentence" for the purposes of the Criminal Appeal Act 1912 and is therefore amenable to a Crown appeal.
  • Where offending is characterised by serious objective criminality, a sentencing court cannot appropriately defer sentencing on the basis that rehabilitation may render a non-custodial outcome available at the end of a remand period.
  • Rehabilitation is a legitimate sentencing consideration, but it must be weighed alongside all of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 rather than treated as determinative.
  • Unnecessary delay in sentencing produces unfairness to both the offender and the community; postponement of sentencing is only justified where it is genuinely essential to achieve a just result.
  • In quashing the adjournment order, the Court of Criminal Appeal confirmed that the serious nature of child sexual offences demands that the full range of sentencing purposes, including punishment and community protection, receive proper weight alongside rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 11(1)
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 2
- Pre-Trial Diversion of Offenders Act 1985 (NSW), ss 2A, 3A

Cases:
- Attorney-General's Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Alamedinne [2005] NSWCCA 68
- R v BJW (2000) 112 A Crim R 1
- R v Burchell (1987) 34 A Crim R 149
- R v CJP [2004] NSWCCA 188
- R v Fisher (1989) 40 A Crim R 442
- R v Holyoak (1995) 82 A Crim R 502
- R v Palu [2002] 134 A Crim R 174
- R v Smith (1993) 69 A Crim R 47
- R v Trindall (2002) 133 A Crim R 119