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10
Court of Criminal Appeal 16 September 2005

Regina v H

[2005] NSWCCA 282

Sexual offencesAssault & violence
CRIMINAL LAW ACT OF INDECENCY ASSAULT AGGRAVATED INDECENT ASSAULT DETENTION OF COMPLAINANTS FOR ADVANTAGE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Regina v H [2005] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 16 September 2005
Judge(s): Studdert J, Bell J, Latham J

Background

The appellant was sentenced in the District Court on 23 August 2002 following guilty pleas to eleven counts of sexual offences committed against four complainants across three separate incidents in August 2000. The offences included acts of indecency, assault, aggravated indecent assault, detention of complainants for advantage, and aggravated sexual intercourse without consent committed in company, as both principal and accessory. The incidents occurred in public locations including on a train and at suburban premises.

At the time the offences were committed, the appellant was seventeen years and four months old and was found to be mildly intellectually handicapped. These two features became central to the appeal against the severity of the sentences.

Judge Finnane QC in the District Court imposed an aggregate sentence of twenty-five years' imprisonment with a non-parole period of fifteen years. The appellant sought leave to appeal on the basis that the sentences were unduly harsh and severe, and that the sentencing judge had erred in his findings and approach.

  • Whether the sentencing judge made errors in his findings of fact or in his approach to sentencing
  • Whether the aggregate sentence of twenty-five years with a fifteen-year non-parole period was unduly harsh and severe
  • Whether the sentencing judge gave adequate weight to the appellant's youth at the time of the offences
  • Whether the sentencing judge gave adequate weight to the appellant's mild intellectual disability (a ground added by leave at the hearing)
  • Whether the overall structure of the sentences, including the accumulation of individual terms, produced a result that was disproportionate in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentences imposed in the District Court were excessive. The Court identified errors in the sentencing judge's findings and approach, including insufficient weight given to the appellant's youth and his mild intellectual disability. These factors were relevant both to moral culpability and to the prospects of rehabilitation.

The Court undertook a fresh sentencing exercise across all eleven counts, restructuring the individual terms and the way they were accumulated. The revised sentences placed significant weight on the fact that the appellant was a juvenile at the time of the offences and had a cognitive impairment, while still reflecting the serious and repeated nature of the conduct and the harm caused to four complainants.

The revised aggregate sentence was sixteen years and six months' imprisonment with a non-parole period of twelve years. This represented a substantial reduction from the original twenty-five year aggregate and fifteen-year non-parole period, though the Court plainly regarded the underlying offending as grave. The longest individual sentence, for the most serious count, was nine years' imprisonment with a six-year non-parole period.

Orders Made

  • Leave granted to appeal against the severity of the sentences imposed
  • Appeal allowed; all sentences imposed in the District Court quashed
  • Count 1: Six months' imprisonment from 18 October 2000 (expires 17 April 2001)
  • Count 2: Six months' imprisonment from 18 October 2000 (expires 17 April 2001)
  • Count 3: Eighteen months' imprisonment from 18 October 2000 (expires 17 April 2002)
  • Count 4 (including four Form 1 offences): Three years and nine months' imprisonment from 18 October 2000 (expires 17 July 2004)
  • Count 5: Three years' imprisonment from 18 October 2002 (expires 17 October 2005)
  • Count 6: Three years' imprisonment from 18 October 2005 (expires 17 October 2008)
  • Count 7: Six years and nine months' imprisonment from 18 October 2002; non-parole period of four years (expires 17 October 2006); sentence expires 17 July 2009
  • Count 8: Nine years' imprisonment from 18 October 2002; non-parole period of six years (expires 17 October 2008); sentence expires 17 October 2011
  • Count 9: Six years and nine months' imprisonment from 18 October 2005; non-parole period of four years (expires 17 October 2009); sentence expires 17 July 2012
  • Count 10: Three years' imprisonment from 18 October 2009 (expires 17 October 2012)
  • Count 11: Seven years and six months' imprisonment from 18 October 2009; non-parole period of three years; first eligible for parole consideration 17 October 2012; sentence expires 17 April 2017

Key Takeaways

  • A sentencing court must give meaningful weight to an offender's youth and intellectual disability as factors bearing on both moral culpability and rehabilitation prospects, even where the underlying offending is of a serious sexual nature.
  • Errors in weighing these mitigating factors can constitute appellable error, justifying the Court of Criminal Appeal's intervention to resentence afresh.
  • The Court of Criminal Appeal reduced an aggregate term from twenty-five years to sixteen years and six months, and the non-parole period from fifteen years to twelve years, demonstrating that even very serious multi-count sexual offending must be assessed through the prism of all relevant personal circumstances.
  • Mild intellectual disability, confirmed on the evidence, was treated as a distinct ground of mitigation, added by leave during the hearing, underscoring that such grounds do not necessarily need to be foreshadowed in original grounds of appeal where there is good reason for the late application.
  • The restructuring of accumulated sentences across eleven counts illustrates the principle that the totality of a sentence must remain proportionate to the overall criminality, even where each individual sentence might be defensible in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCA 518
- Chow v DPP (NSW) (1992) 28 NSWLR 593
- Markarian v R [2005] HCA 25; 79 ALJR 1048
- Power v The Queen (1974) 131 CLR 623
- R v AEM Snr; KEM; MM [2002] NSWCCA 58
- R v Bakewell (unreported) NSWCCA, 27 June 1996
- R v Bailey (1988) 35 A Crim R 458
- R v De Simoni (1981) 147 CLR 383
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Kier [2004] NSWCCA 106
- R v Letteri (unreported) Court of Criminal Appeal, 18 March 1992
- R v MA [2001] NSWCCA 30
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Sharma (2002) 54 NSWLR 300
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Tsiaras (1996) 1 VR 398
- R v Uzabeaga [2000] NSWCCA 381
- R v Wickham [2004] NSWCCA 193
- R v Wright (1997) 93 A Crim R 48
- Wong v R (2001) 207 CLR 584