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Court of Criminal Appeal 20 November 2006

A.I.S. v Regina

[2006] NSWCCA 355

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT ON 13 YEAR OLD GIRL SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: A.I.S. v Regina [2006] NSWCCA 355
Court: Court of Criminal Appeal, New South Wales
Date: 20 November 2006
Judges: Beazley JA, Sully J, Hislop J

Note: These proceedings are subject to publication and broadcasting restrictions under s 11(1) of the Children (Criminal Proceedings) Act 1987.

Background

The applicant, a 19-year-old swimming coach, pleaded guilty on 5 December 2005 to indecent assault on a 13-year-old girl in circumstances of aggravation under s 61M(1) of the Crimes Act 1900. The offence occurred when the applicant, having known the victim through swimming since she was around seven years old, drove her home after training and instead stopped at a car park. He kissed her, digitally touched her genitals, and placed her hand on his groin, despite her repeated protests.

In the District Court, English DCJ sentenced the applicant on 24 May 2006 to a non-parole period of 9 months, with an overall head sentence of 2 years, 9 months and approximately 18 days. The sentencing judge found special circumstances justifying the shortened non-parole period, and applied a 20 per cent discount to reflect the guilty plea, reducing a notional starting point of 3 years and 6 months.

The applicant sought leave to appeal against the sentence in the Court of Criminal Appeal, arguing the sentence was the product of error and was manifestly excessive.

  • Whether the sentencing judge erred by relying on inappropriate comparable cases to determine the sentencing range
  • Whether the sentencing judge erred by treating herself as bound to impose a sentence of full-time imprisonment
  • Whether the sentence imposed was manifestly excessive in all the circumstances

Decision

Ground One: Comparable cases. Hislop J (with whom Beazley JA and Sully J agreed) found that the sentencing judge's reference to comparable cases was one factor among several, not the sole basis for excluding a non-custodial option. Her Honour had separately considered the age difference between the applicant and the victim, explicitly noting that the applicant's relative youth reduced the objective seriousness of the offence from mid-range to the lower end of mid-range. No error was established on this ground.

Ground Two: Discretion to impose a non-custodial sentence. The Court examined the sentencing judge's remarks and found she had not regarded herself as bound in law to impose imprisonment. Rather, she had exercised a discretion and concluded, on the particular facts, that full-time custody was required to meet the demands of general and specific deterrence. The Court distinguished between a judge treating a sentence type as legally obligatory (which would be error) and a judge concluding as a matter of judgment that no other sentence was appropriate in the circumstances.

Ground Three: Manifest excess. Hislop J acknowledged the head sentence was severe and described it as sitting at the "upper and outer limit" of the available range. His Honour expressed some hesitation before concluding the sentence could not be characterised as falling outside the permissible range. Even if the head sentence had been found to be excessive, the Court observed that the non-parole period of 9 months, already greatly reduced by the finding of special circumstances, could not have been further reduced on any realistic adjustment to the head sentence.

The Court emphasised its limited role as a court of error, confirming it does not substitute its own view for that of the sentencing judge unless error is established and a less severe sentence is warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's reference to comparable cases does not constitute error where those cases form only part of a broader sentencing analysis, and the judge separately addresses distinctions such as the age of the offender.
  • Under the principles affirmed in R v Simpson, the Court of Criminal Appeal will intervene only where error is demonstrated and a less severe sentence is warranted in law, not merely because the appellate court might have sentenced differently.
  • Where a sentencing judge exercises discretion to impose full-time imprisonment rather than treating it as the only lawful option, no error of principle arises even if the outcome is a custodial sentence.
  • Applying the "instinctive synthesis" approach confirmed in Markarian v R, the Court evaluated the overall sentence holistically and found it sat at, but did not exceed, the outer limit of the available range.
  • A finding of special circumstances, which permits a shortened non-parole period relative to the head sentence, may limit the practical scope for reducing the non-parole period on appeal even where some concern exists about the severity of the overall sentence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11(1)
- Crimes Act 1900 (NSW), s 61M(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 6(3)

Cases:
- Markarian v R (2005) 215 ALR 213
- R v Allpass 72 A Crim R 561
- R v Simpson (2001) 53 NSWLR 704
- R v Tait (1979) 46 FLR 386