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Court of Criminal Appeal 10 November 2005

Regina v Davies

[2005] NSWCCA 384

Sexual offences
SENTENCING CRIMES ACT S 66A STATISTICS SENTENCE OUTSIDE RANGE.

Citation: Regina v Davies [2005] NSWCCA 384
Court: Court of Criminal Appeal, New South Wales
Date: 10 November 2005
Judge(s): McClellan CJ at CL, Grove J, Hislop J (judgment delivered by Hislop J, with whom the other judges agreed)

Background

The applicant pleaded guilty in the District Court to sexual intercourse with a child under 10 years of age, contrary to section 66A of the Crimes Act 1900. The offence involved a single act of fellatio inflicted on a seven-year-old child during the period from 31 December 2002 to 31 January 2003. The applicant was living with the child and her mother at the time, placing him in a position of authority and trust over the child.

A related charge of aggravated indecent assault on the same child was taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional offences at sentencing without recording a separate conviction). That offence involved a separate incident during the same period.

The District Court sentenced the applicant to 10 years' imprisonment with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentence of 10 years (with a 7.5-year non-parole period) was manifestly excessive for a section 66A offence, having regard to Judicial Commission statistics and comparable appellate decisions.
  • Whether the sentencing judge's implied starting point of over 14 years (before the discount for a guilty plea) was within the range reasonably open on the facts.
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory proportion.

Decision

Hislop J, with whom McClellan CJ at CL and Grove J agreed, accepted that the principal offence was undoubtedly very serious and warranted a substantial custodial term. The sentencing judge's findings, including a gross breach of trust, the young age of the victim, and the absence of any identifiable cause for the offending, all pointed to a sentence well above the mid-range.

However, the Court found that the sentence imposed fell outside the range reasonably open to the sentencing judge to such a degree as to manifest error. Judicial Commission statistics showed that only 5% of offenders sentenced for pre-February 2003 section 66A offences received a head sentence of 10 years or more. A review of comparable appellate decisions revealed only one case where a higher sentence had been imposed, and that involved three separate section 66A counts. The Court treated those statistics with appropriate caution, noting that bare figures say little without case-specific detail, but found them sufficiently instructive alongside the case comparison exercise.

On the question of special circumstances (a finding that allows a court to depart from the standard proportion between non-parole period and total sentence), the Court declined to make such a finding. It agreed with the sentencing judge that the statutory parole period would adequately cover any period of supervised assistance upon the applicant's release.

The Court substituted a sentence of 7 years' imprisonment with a non-parole period of 5 years and 3 months.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentence quashed and replaced with imprisonment for 7 years, commencing 13 September 2004 and expiring 12 September 2011, with a non-parole period of 5 years and 3 months commencing 13 September 2004 and expiring 12 December 2009.

Key Takeaways

  • Judicial Commission statistics and summaries of comparable appellate decisions are legitimate tools in a manifest excess appeal, though courts must apply caution because bare statistics carry limited weight without case-specific context (consistent with Wong v R (2001) 207 CLR 584).
  • A sentence of 10 years with a 7.5-year non-parole period for a single section 66A offence, taken with one Form 1 matter, was found to lie outside the range reasonably open to a sentencing court on these facts.
  • The implied pre-discount starting point of over 14 years was treated as a concrete indicator that the sentencing exercise had miscarried, even absent a specifically identified legal error.
  • Aggravating factors, including a serious breach of trust and the very young age of the victim, justified a sentence well above the mid-range, but did not alone support a result at the very top of the statistical distribution.
  • Declining to find special circumstances, the Court of Criminal Appeal confirmed that the statutory parole period can adequately address a first-time offender's post-release supervision needs where rehabilitation prospects are uncertain.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Everett v R (1994) 181 CLR 295
- Markarian v The Queen [2005] HCA 25
- R v Bloomfield (1998) 44 NSWLR 734
- R v Holder (1983) 3 NSWLR 245
- R v Smith (NSWCCA, 24 November 2003)
- R v Visconti (1982) 2 NSWLR 104
- Wong v R (2001) 207 CLR 584