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7
Court of Criminal Appeal 21 November 2005

R v EGC

[2005] NSWCCA 392

Sexual offences
CHILD SEXUAL ASSAULT REHABILITATION

Citation: R v EGC [2005] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 21 November 2005
Judges: Sully J, Hulme J, Latham J

Background

The applicant pleaded guilty in the District Court to three counts of sexual intercourse with a child under 10 years (his then step-daughter, aged between 7 and 10), and one count of aggravated indecent assault of a child under 16 (his then step-son, aged between 4 and 6). The offences occurred between 1986 and 1988. A further aggravated indecent assault was taken into account on a Form 1 (a mechanism under NSW practice that allows additional offences to be noted and reflected in the sentence without separate conviction).

The offences were disclosed to authorities in approximately 1989 to 1991, but the applicant was not charged until 2002 and was not sentenced until October 2004. The District Court imposed an effective term of seven years' imprisonment with a non-parole period of five years and three months.

The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had made a series of specific errors, particularly in his treatment of the significant delay between the offences and sentencing, and the applicant's rehabilitation in the intervening period.

  • Whether the sentencing judge failed to give sufficient weight to the lengthy delay between the commission of the offences and the date of sentencing.
  • Whether the judge failed to adequately consider the applicant's rehabilitation efforts between 1989 and 2002.
  • Whether the judge erred by not accounting for sentencing practices that prevailed at the time of the offences and their initial disclosure.
  • Whether the judge failed to recognise that the applicant had lost the opportunity to participate in a pre-trial diversionary program that was theoretically available when the offences were first reported in 1991.
  • Whether the overall sentences were manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The Court found that the sentencing judge had not adequately addressed the significance of the delay between the offences and sentence, nor had he given appropriate weight to the applicant's demonstrated rehabilitation over a period of more than a decade before being charged.

On the question of delay, the Court acknowledged that the gap of roughly 16 years between the commission of the offences and sentencing was a relevant mitigating factor. Delay of this kind can diminish the utilitarian value of general deterrence and reflects a form of hardship on the offender who has lived under the shadow of potential prosecution. The Court also accepted that the applicant had undertaken genuine and sustained rehabilitative efforts during the period before he was charged.

The Court was not persuaded that the loss of a pre-trial diversionary opportunity constituted a separate ground of error. At the time the offences were reported to authorities in 1991, the applicant had not been charged, and a formal charge was a prerequisite to accessing that program. The failure to participate in such a program therefore did not arise from any fault in the sentencing process.

On totality, the Court considered that an effective sentence of seven years remained appropriate to reflect the overall criminality. However, it found that the structure of the sentence required adjustment, particularly to reflect special circumstances warranting a longer parole period. The Court restructured the sentences on Counts 1, 2, and 3, reducing the non-parole period while preserving the effective total term.

Orders Made

  • Leave to appeal granted; appeal allowed in part.
  • Sentences on Counts 1 and 2 quashed; on each count, a non-parole period of 2 years imposed from 17 September 2005, expiring 16 September 2007, with a balance of term of 2 years expiring 16 September 2009.
  • Sentence on Count 3 quashed; taking into account the Form 1 offence, a non-parole period of 2 years imposed from 17 September 2006, expiring 16 September 2008, with a balance of term of 3 years expiring 16 September 2011.
  • Earliest date for release on parole: 17 September 2008.

Key Takeaways

  • Significant delay between the commission of historical offences and the date of sentencing is a recognised mitigating factor in NSW, capable of affecting the weight given to general deterrence and reflecting hardship on the offender.
  • Rehabilitation undertaken in the period between offending and prosecution can attract meaningful sentencing credit, even where that rehabilitation predates any formal charge.
  • The Court confirmed that an offender cannot rely on the theoretical availability of a diversionary program as a mitigating factor where the formal preconditions for entering that program were never met.
  • In dismissing the totality ground, the Court held that an effective seven-year sentence remained proportionate to the cumulative criminality of repeated, serious child sexual offending against two children over a two-year period.
  • Where special circumstances are found, a sentencing court may restructure the ratio of non-parole to balance-of-term without necessarily reducing the overall length of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61E(1A)
- Pre-Trial Diversion of Offenders Act 1985 (NSW)

Cases:
- Humphries [2004] NSWCCA 370
- R v Holyoak (1995) 82 A Crim R 502
- R v Thompson (unrep) CCA 18 June 1996
- V (1998) 99 A Crim R 297
- R v Blanco (1999) 106 A Crim R 303
- R v Cockerell [2001] VSCA 239
- R v Todd [1982] 2 NSWLR 517
- R v Virgona [2004] NSWCCA 415
- R v Fidow [2004] NSWCCA 172
- R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534
- R v MJR (2000) 54 NSWLR 386
- Dodd (1991) 57 A Crim R 549