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Court of Criminal Appeal 2 March 2006

Shannon v Regina

[2006] NSWCCA 39

Sexual offences
CRIMINAL LAW SENTENCE CHILD SEXUAL OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE VULNERABILITY OF THE VICTIM RELEVANCE OF DELAY IN PROSECUTION.

Citation: Shannon v Regina [2006] NSWCCA 39
Court: New South Wales Court of Criminal Appeal
Date: 2 March 2006
Judge(s): Mason P, Barr J, Howie J

Background

The applicant, a man aged 28 at the time of the offending, pleaded guilty mid-trial to three counts of sexual intercourse with a child aged 12, contrary to s 66C(1) of the Crimes Act 1900. The offences occurred over a week in late April 2000 and involved two acts of fellatio and one act of penile penetration. The complainant and the applicant were known to each other and had previously lived in close proximity.

The matter came to police attention through several channels over a number of years, including a letter the applicant had written to the complainant that was found by her mother in 2000, a school counsellor notification in 2002, and a formal police complaint. The applicant was not arrested and charged until August 2003 and was not sentenced until April 2005. He had originally faced nine counts but pleaded guilty to three on the third day of his trial after rejecting an earlier Crown offer to resolve the matter on two counts.

In the District Court, Judge Marien SC imposed cumulative fixed terms of imprisonment on the first two counts and a head sentence of three years imprisonment with an 18-month non-parole period on the third count, producing a total effective sentence of five years imprisonment with an overall minimum of three years. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the total sentence of five years imprisonment with a minimum of three years was manifestly excessive for three offences of sexual intercourse with a child aged 12
  • Whether the sentencing judge gave appropriate weight to the applicant's subjective circumstances, including the delay between the offending and prosecution, and an assault the applicant suffered while on remand
  • Whether the 15 percent discount applied for late guilty pleas was appropriate, given the pleas were entered on the third day of trial after rejection of an earlier offer

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. Howie J, with whom Mason P and Barr J agreed, held that the objective seriousness of the offences was "particularly serious." The applicant had initiated all sexual contact, was aware of the complainant's age, and proceeded despite the complainant's evident unwillingness. The court observed that penile penetration is the most serious form of sexual assault on a young child because it is most likely to cause physical injury.

On the question of delay, the court found that the lengthy passage of time between offending and prosecution did not significantly reduce the applicant's culpability in the circumstances. The Victim Impact Statement demonstrated continuing and serious psychological harm to the complainant, including self-harm, difficulties forming trust and relationships, and sustained emotional distress. The court considered that harm alongside the objective features of the offending.

The court also addressed the discount for the late guilty pleas. Because the pleas were entered on the third day of trial and followed rejection of an earlier Crown offer that would have resolved the matter on two counts only, the sentencing judge applied a 15 percent discount rather than the more usual 25 percent. The Court of Criminal Appeal confirmed this approach was appropriate, noting that guilty pleas in child sexual assault matters carry particular value because they spare the complainant from giving evidence.

Although the court acknowledged the sentence sat at the upper end of the range indicated by comparable decisions and Judicial Commission statistics, it held that the sentence remained within the sentencing judge's lawful discretion. No error warranting appellate intervention was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence at the upper end of the range for child sexual offences is not automatically manifestly excessive, provided it falls within the sentencing judge's discretion and is supported by the objective facts.
  • Penile penetration of a young child was identified by the court as the most serious form of sexual intercourse within the meaning of the relevant offence provision, on the basis that it carries the greatest risk of physical injury.
  • A defendant's knowledge of the child's age, combined with initiation of sexual activity and persistence despite the child's reluctance, are significant aggravating factors in sentencing for offences under s 66C(1) of the Crimes Act 1900.
  • Where a guilty plea is entered late in a trial and follows rejection of an earlier Crown offer to resolve on fewer counts, a discount of 15 percent (rather than the more typical 25 percent) may properly reflect the reduced utilitarian value of the plea.
  • Delay between offending and prosecution does not, of itself, compel a substantial reduction in sentence where the objective seriousness of the conduct and the continuing harm to the victim remain evident.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- R v Hathaway [2005] NSWCCA 368
- R v Barker and Gibson [2006] NSWCCA 20