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Court of Criminal Appeal 16 December 2005

GJ v R

[2005] NSWCCA 447

Sexual offences
PLEA OF GUILTY FINDING OF SPECIAL CIRCUMSTANCES SUBJECTIVE CIRCUMSTANCES WHETHER SENTENCE MANIFESTLY EXCESSIVE CUSTODIAL SENTENCE WHETHER CUSTODIAL SENTENCE CALLED FOR

Citation: GJ v R [2005] NSWCCA 447
Court: NSW Court of Criminal Appeal
Date: 16 December 2005
Judges: Grove J, James J, Simpson J

Background

The applicant pleaded guilty in the District Court to the aggravated form of inciting a person under the age of 16 to commit an act of indecency, contrary to s 61O(1) of the Crimes Act 1900. The aggravating circumstance was that the complainant, then aged 11, was under his authority as his daughter. The offence involved the child being directed by the applicant to perform a sexual act on him in the family home while his wife was absent.

Kinchington DCJ sentenced the applicant to a total term of 30 months' imprisonment, comprising a non-parole period of 15 months and a balance of term of 15 months. His Honour found special circumstances justifying a departure from the standard statutory ratio between the non-parole period and head sentence. A 25% discount was applied to reflect the guilty plea, together with remorse and contrition.

The applicant sought leave to appeal against the severity of that sentence, arguing it was manifestly excessive and that a non-custodial sentence should have been imposed.

  • Whether a custodial sentence was required, or whether exceptional circumstances needed to be shown to justify one
  • Whether the starting point for the head sentence (before applying the guilty plea discount) was too high relative to the statutory maximum and the objective gravity of the offence
  • Whether the applicant's stated motivation for the offence (described as a "silly experiment" to hurt his wife) was properly treated as an aggravating feature
  • Whether the 25% discount for the guilty plea was appropriate given the timing of the plea
  • Whether the sentence was manifestly excessive having regard to the applicant's subjective circumstances

Decision

Simpson J (Grove J and James J agreeing) dismissed the appeal, finding no error in the sentence imposed by the District Court.

On the question of whether a custodial sentence was necessary, the Court rejected the submission that exceptional circumstances were required before imprisonment could be imposed. Rather, the Court affirmed the opposite proposition: given the serious nature of the offence, it was the applicant who needed to show exceptional circumstances to justify a non-custodial sentence. None were present here. The sentencing judge was correct to conclude that the objective gravity of the conduct, involving a father directing his 11-year-old daughter to perform a sexual act, required full-time imprisonment.

Regarding the applicant's stated motivation, the Court addressed the argument that treating the explanation as aggravating was impermissible. Simpson J found it unnecessary to rule definitively on whether motivation could be an aggravating feature, noting that the sentencing judge had expressly stated the explanation provided "no excuse" and made things "a little bit worse," without appearing to treat it as a formal aggravating circumstance in a technical sense.

On the starting point argument, the Court acknowledged the submission gave it pause. After the 25% discount, the implied starting point was approximately three years and four months, which represented around 66% of the five-year maximum. The Court held this was not disproportionate, noting the offence was a serious manifestation of the relevant category and that the applicant might well have faced a more serious charge. The 25% discount, given the relatively late timing of the plea, was in fact described as generous. The Court also noted that general and specific deterrence carried significant weight in offences of this nature, and that the personal consequences flowing from conviction, such as damage to family reputation, were common to the vast majority of offenders in comparable situations and carried little weight in mitigation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that for serious child sexual offences, a custodial sentence is the default position; it is the offender who must demonstrate exceptional circumstances to justify a non-custodial outcome, not the prosecution to justify imprisonment.
  • A starting point of approximately 66% of the statutory maximum was not found to be disproportionate where the offence represented a serious manifestation of the relevant charge and subjective circumstances provided limited mitigation.
  • Where a guilty plea is entered well after the earliest opportunity, a 25% discount may still be available if genuine remorse and contrition are present alongside utilitarian value, consistent with the principles in R v Thomson; R v Houlton [2000] NSWCCA 309.
  • Personal consequences of conviction, such as loss of family reputation and self-esteem, carry limited mitigatory weight when they are consequences shared by the great majority of offenders convicted of comparable offences.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances can justify varying the standard ratio between the non-parole period and the head sentence, including in cases where extended supervision following release is considered important to rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61O(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- The Queen v de Simoni [1981] HCA 31; 147 CLR 383
- R v Baxter (unreported, NSWCCA, 26 May 1994)