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Court of Criminal Appeal 16 May 2006

RJP v Regina

[2006] NSWCCA 149

Sexual offences
CRIMINAL LAW SENTENCING SEXUAL ASSAULTS ON CHILDREN MITIGATING FACTORS TOTALITY SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: RJP v Regina [2006] NSWCCA 149
Court: Court of Criminal Appeal, New South Wales
Date: 16 May 2006
Judge(s): Hidden J, Kirby J, Hislop J

Background

The applicant pleaded guilty in the District Court to multiple counts of sexual offending against two child victims: his sister and a female cousin. The offences spanned approximately two decades, from 1968 to 1987, and involved penile and digital penetration as well as acts of indecency. The victims were aged between six and fourteen years at the times of the various offences.

The applicant was sentenced by Solomon DCJ in 2005, when the applicant was 52 years old. The offending had occurred between 37 and 18 years before sentencing. The District Court imposed a total effective sentence of 12 years imprisonment, structured through a combination of concurrent and cumulative terms across two separate indictments.

The applicant sought leave to appeal against the sentences on four grounds: failure to account for his youth at the time of the earliest offence, failure to find that he was unlikely to reoffend, error in applying the totality principle, and manifest excess in the overall sentence.

  • Whether the sentencing judge failed to give adequate weight to the applicant's youth and immaturity at the time of the first offence (count 1), which was committed when he was approximately 15 years old
  • Whether the sentencing judge was obliged, under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999, to find that the applicant was unlikely to reoffend
  • Whether the sentencing judge erred in accumulating (rather than making concurrent) the sentences for the two separate indictments
  • Whether the overall sentence of 12 years was manifestly excessive

Decision

On the question of the applicant's youth, Kirby J accepted that immaturity at age 14 to 15 was a relevant mitigating factor capable of affecting the applicant's capacity for self-control. However, the court noted that the Form 1 offences against the same victim were committed when the applicant was older, including one offence at approximately 18 years of age, by which point he acknowledged he knew his conduct was unacceptable. Kirby J considered the sentence of seven years with a three-year non-parole period to be at the high end, but within the available sentencing range when the Form 1 matters were taken into account.

On the reoffending question, the court acknowledged there was material that might have supported a finding that the applicant was unlikely to reoffend, including his age at sentencing (52), the age of the offending, and the absence of further offending since his release from a Queensland sentence in 1991. However, the court found no error in the sentencing judge declining to make that finding, given the prolonged nature of the offending, and the absence of any psychological report offering insight into the applicant's current risk.

Regarding totality, the court found that the decision to accumulate the sentences for the two indictments was appropriate. The offences against the sister and the cousin were separate and distinct, occurring at least ten years apart. The court applied the principles from Pearce v The Queen and found that the sentencing judge had correctly imposed appropriate individual sentences before considering questions of cumulation and concurrence.

On manifest excess, the court found that the objective gravity of the offences and the need for general deterrence and retribution justified the overall sentences. The applicant failed to demonstrate error by the sentencing judge or that a more lenient sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not obliged to find that an offender is unlikely to reoffend under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 where the offending was prolonged, serious, and no psychological evidence addresses the offender's current risk profile.
  • Youthful immaturity at the time of an offence remains a relevant mitigating factor in sentencing, including for historical offences sentenced many years later, but its weight can be reduced where accompanying Form 1 matters were committed at a more mature age.
  • Accumulating sentences across separate indictments is appropriate where the underlying offences are distinct and occurred at substantially different times, even where some Form 1 matters overlap chronologically.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention on grounds of manifest excess requires the applicant to demonstrate both error by the sentencing judge and that a more lenient sentence was warranted in law.
  • The presence of a prior interstate conviction for similar offending, combined with an absence of psychological evidence, was sufficient basis for a sentencing court to decline to apply the statutory mitigating factor relating to low likelihood of reoffending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 66A, 67, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(g)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Dar (unreported, NSWCCA, 2 October 1997)
- R v Hearne 124 A Crim R 451