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9
Court of Criminal Appeal 17 February 2006

Isaac Robert Doolan v Regina

[2006] NSWCCA 29

Also reported as (2006) 160 A Crim R 54
Sexual offencesAssault & violence
WHETHER LESS SEVERE SENTENCES WARRANTED

Citation: Isaac Robert Doolan v Regina [2006] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 17 February 2006
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The appellant was convicted by a jury in the District Court of six offences committed on 21 February 2004: two counts of common assault, three counts of sexual intercourse without consent (under s 61I of the Crimes Act 1900), and one count of aggravated sexual intercourse without consent (under s 61J(1)), where the circumstance of aggravation was a threat made with a brick immediately before the act of digital penetration.

The offences occurred over approximately seven hours in and around Cowra and Bathurst. The appellant and the complainant had previously been in a de facto relationship, which had ended after the complainant obtained an apprehended violence order against the appellant. Significantly, the appellant was on bail at the time of these offences for earlier violence perpetrated against the same complainant.

The sentencing judge in the District Court imposed concurrent fixed terms for the lesser offences, with the most serious offence attracting a non-parole period of five years (commencing after the other terms), producing an effective non-parole period of seven years and a total term of ten years. The appellant sought leave to appeal, arguing the sentencing judge erred in considering certain aggravating factors and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in taking into account specific aggravating factors when imposing sentence
  • Whether those errors, if established, warranted the substitution of less severe sentences under s 6(3) of the Criminal Appeal Act
  • Whether the sentences imposed were manifestly excessive

Decision

Buddin J (with whom McClellan CJ at CL and James J agreed) accepted that the sentencing judge had fallen into error in the manner identified in R v Tadrosse [2005] NSWCCA 145, by incorrectly treating certain matters as aggravating factors. The nature of those specific errors is not elaborated in the available portions of the judgment, but the Court found them to be established.

Despite those errors, the Court turned to whether less severe sentences were nonetheless warranted, applying the primary perspective identified by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704, namely the length of the minimum period of actual incarceration. The standard non-parole periods prescribed by the legislature, even though the sentencing judge had concluded they did not strictly apply, remained a relevant guidepost or benchmark under R v Way (2004) 60 NSWLR 168.

The Court identified a number of weighty considerations operating against any reduction. The appellant had not pleaded guilty, had maintained his innocence throughout (including at the sentence proceedings), and had expressed hostility toward the complainant's account. The offences were serious, occurred over an extended period during which the complainant was under the appellant's control, and included threats of physical violence. Critically, the appellant was on bail at the time for earlier violent offences against the same complainant, a matter the Court confirmed was a recognised statutory and common law aggravating circumstance under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

Taking all those factors into account, the Court concluded it was not open to find that less severe sentences should have been passed. The challenge on the ground of manifest excess also failed for the same reasons.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Errors in the identification of aggravating factors at sentencing do not automatically produce a lesser sentence on appeal; the Court of Criminal Appeal will still assess whether, in all the circumstances, a less severe sentence is warranted in law under s 6(3) of the Criminal Appeal Act.
  • Committing offences while on bail for earlier violent offences against the same complainant constitutes a recognised aggravating circumstance under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, consistent with R v Richards, R v Fernando, and R v Cicekdag.
  • Standard non-parole periods remain a relevant guidepost or benchmark even where a sentencing judge has determined they do not strictly apply: R v Way (2004) 60 NWSLR 168.
  • In dismissing the appeal, the Court gave weight to the appellant's continued maintenance of innocence, his expressed contempt for the complainant's account, and the extended period of control he exercised over the complainant across multiple offences on the same occasion.
  • The primary perspective when reviewing a sentence on appeal is the length of the minimum period of actual incarceration: R v Simpson (2001) 53 NSWLR 704.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
- Criminal Appeal Act (NSW), s 6(3)

Cases
- R v Tadrosse [2005] NSWCCA 145
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- R v Richards [1981] 2 NSWLR 464
- R v Fernando [2002] NSWCCA 28
- R v Cicekdag [2004] NSWCCA 357
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Bellamy [2005] NSWCCA 329
- R v Berg [2004] NSWCCA 300
- R v Blair (2005) 152 A Crim R 462
- R v Hathaway [2005] NSWCCA 368
- R v Johnson [2004] NSWCCA 76
- R v McQueeney [2005] NSWCCA 168
- R v Shankley [2003] NSWCCA 253
- R v Solomon [2005] NSWCCA 158
- R v Walker [2005] NSWCCA 109
- R v Youkhana [2004] NSWCCA 412