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Court of Criminal Appeal 29 November 2006

Regina v J.R.B

[2006] NSWCCA 371

Sexual offences

Citation: Regina v J.R.B [2006] NSWCCA 371
Court: NSW Court of Criminal Appeal
Date: 29 November 2006
Judge(s): James J, Hidden J, Hislop J

Background

The respondent, a man in his early fifties, was convicted by jury of sexual intercourse without consent following two trials in the District Court. The victim was a young adult woman who had known the respondent's family for many years and regarded him almost as a father figure. The offence occurred on the night of 4 December 2003, when the respondent took advantage of the complainant while she was asleep in her own home after consuming alcohol.

DNA evidence matched the respondent's profile to semen recovered from the complainant, to a probability of fewer than one in ten billion. The respondent initially denied having any sexual intercourse with the complainant, but later admitted intercourse while claiming consent. A jury rejected the consent defence.

At sentencing, the District Court judge imposed a non-parole period of only three months, with a balance of term of two years nine months. The Crown appealed, arguing the non-parole period was manifestly inadequate.

  • Whether the three-month non-parole period imposed for the offence of sexual intercourse without consent was manifestly inadequate.
  • Whether the sentencing judge placed excessive weight on his own prior judicial experience in assessing the appropriate sentence.
  • Whether medical hardship suffered by the respondent in custody, including difficulties accessing diabetes medication, constituted a discretionary reason to refuse the Crown appeal.

Decision

The Court of Criminal Appeal granted the Crown leave to appeal and quashed the original sentence. James J, with whom Hidden J and Hislop J agreed, found the non-parole period of three months was manifestly inadequate for an offence carrying a maximum penalty of fourteen years' imprisonment and a standard non-parole period of seven years. While the Crown had conceded at first instance that the offence fell at the lower end of the scale, that concession did not justify a non-parole period as short as three months.

The Court acknowledged the offence lacked associated physical force or planning, and that the sentencing judge had correctly identified it as an unpremeditated, spur-of-the-moment act. However, those mitigating features could not reduce the non-parole period to such a low level, particularly given the serious breach of trust involved and the nature of the offending.

On the question of the sentencing judge's reliance on personal judicial experience, the Court found this was a ground of error. A sentencing court may draw on general experience, but placing undue weight on a judge's own particularised experience in assessing where an offence sits on the scale of seriousness risks departing from the objective facts and established sentencing principles.

Regarding the respondent's medical circumstances, the Court acknowledged that the respondent had suffered genuine hardship in the early period of custody, including two hyperglycaemic episodes caused by denial of his diabetes medication. However, by the time of the appeal hearing, the respondent was housed at the Kirkconnell Correctional Centre, where his medical needs were being appropriately managed. The Court found these circumstances did not constitute a discretionary reason to refuse the Crown appeal, though it made a strong recommendation that the respondent remain at Kirkconnell and continue to receive appropriate treatment.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by Judge Goldring on 14 September 2006 quashed.
  • Non-parole period of fifteen months substituted, commencing 14 September 2006 and expiring 13 December 2007.
  • Balance of term of one year nine months, commencing 14 December 2007 and expiring 13 September 2009.
  • Respondent to be released on parole on 13 December 2007.
  • Strong recommendation that the respondent remain at Kirkconnell Correctional Centre until parole and receive appropriate diabetes treatment and medication while in custody.

Key Takeaways

  • A three-month non-parole period for sexual intercourse without consent was held to be manifestly inadequate, even where the offence fell at the lower end of the scale of objective seriousness.
  • The Court of Criminal Appeal confirmed that a Crown concession placing an offence at the lower end of the seriousness spectrum does not, by itself, justify an unusually low non-parole period divorced from the statutory framework, including the standard non-parole period of seven years under the relevant legislation.
  • Undue reliance by a sentencing judge on his or her own particularised judicial experience, rather than on objective facts and established principle, can constitute a sentencing error on appeal.
  • Where a respondent has suffered genuine hardship in custody due to denial of medical treatment, that hardship may be relevant to the exercise of discretion on a Crown appeal, but it does not automatically warrant refusing the appeal, particularly where conditions have since improved.
  • In allowing a Crown appeal, the Court of Criminal Appeal applied the established practice of substituting a sentence somewhat less than what it considered the original court should have imposed, reflecting the double-jeopardy principle applicable to Crown appeals.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v Crisologo (1997) 99 A Crim R 178
- R v Hartikainen (unreported, Court of Criminal Appeal, 8 June 1993)
- R v May [1999] NSWCCA 40
- R v Wall [2002] NSWCCA 42
- Weininger v The Queen (2003) 77 ALJR 872