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Court of Criminal Appeal 24 March 2006

Steven James Aslett v Regina

[2006] NSWCCA 48

Sexual offencesAssault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCING PARITY WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Steven James Aslett v Regina [2006] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 24 March 2006
Judge(s): Spigelman CJ, Barr J, Howie J

Background

The appellant was an 18-year-old who, together with his uncle and two others, broke into a residential flat late at night and committed a series of violent offences. The group had deliberately targeted the home on the basis that the occupants were Asian, expecting cash and jewellery to be present. Inside, the complainant's father was tied up at knifepoint, while the women of the household were threatened and restrained.

The appellant's uncle, who led the group, took the 16-year-old female complainant (who had turned 16 only seven days earlier) into a separate room and subjected her to rape and sexual assault at knifepoint. The complainant bled and begged the offender to stop. The appellant was not himself the principal in the sexual offences, but was present in company, which is what the law requires to establish the aggravated offences to which he pleaded guilty.

The appellant pleaded guilty in the District Court, at the point his trial was about to begin, to armed robbery in circumstances of special aggravation and three counts of aggravated sexual intercourse without consent in company (along with deprivation of liberty). The sentencing judge imposed a total effective sentence of 24 years, comprising a non-parole period of 17 years and a balance of term of 7 years. The appellant sought leave to appeal.

  • Whether the sentencing judge erred by treating particular features of the offending as aggravating the appellant's criminality when they should not have been
  • Whether the sentencing judge made errors of fact in assessing the offences
  • Whether parity principles were properly applied (that is, whether the appellant's sentence was disproportionate compared to any co-offenders)
  • Whether the sentences were, individually and collectively, manifestly excessive having regard to the appellant's youth, prior good character, guilty plea, and secondary role

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the basis that the sentences were manifestly excessive. Barr J, with whom Spigelman CJ and Howie J agreed, identified errors under the first three grounds: the sentencing judge had, in certain respects, treated features of the offending in ways that overstated the appellant's personal culpability, and made factual findings that could not be sustained.

On the question of manifest excess, the Court rejected a pure substitution-of-discretion analysis, acknowledging the principle from Markarian v The Queen that an appellate court does not simply substitute its own view. However, Barr J concluded that the sentences, taken individually and collectively, fell outside the proper range of the sentencing discretion.

The Court placed particular weight on three mitigating factors: the appellant's youth (18 at the time), his prior good character, and his guilty plea. His role as a secondary offender, rather than the principal who committed the sexual assaults, was also significant. These factors, combined with the identified errors, justified reduction of the sentences.

The revised total effective sentence was a non-parole period of 13 years commencing 28 July 2003, with a balance of term of 7 years. The Court departed from the standard one-third ratio between non-parole period and total sentence (known as the "prima facie ratio"), expressly to recognise the appellant's youth and to preserve his prospects for rehabilitation, supported by material placed before the sentencing court and an affidavit sworn by the appellant.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Original sentences quashed and the following substituted:
  • Count 1: Non-parole period of 5 years (28 July 2003 to 27 July 2008); balance of term of 4 years
  • Count 2: Non-parole period of 10 years (28 July 2005 to 27 July 2015); balance of term of 4 years
  • Count 3: Non-parole period of 9 years (28 July 2007 to 27 July 2016); balance of term of 5 years
  • Count 4: Non-parole period of 7 years (28 July 2009 to 27 July 2016); balance of term of 7 years

Key Takeaways

  • A total effective sentence of 24 years (non-parole period of 17 years) was found to exceed the proper range of sentencing discretion for an 18-year-old co-offender of prior good character who pleaded guilty and was not the principal perpetrator of the sexual assaults, even in the context of extremely serious offending.
  • Where a sentencing judge mistreats particular features of offending as aggravating factors and makes unsustainable findings of fact, those errors may collectively explain and justify a finding that the resulting sentence was manifestly excessive.
  • Departing from the standard prima facie ratio between non-parole period and balance of term can be justified where the offender's youth and rehabilitation prospects warrant a longer opportunity for parole eligibility to be considered.
  • Acknowledging the principle from Markarian v The Queen, the Court of Criminal Appeal confirmed it does not simply substitute its own view of the appropriate sentence; however, where the sentences individually and collectively fall outside the proper range, intervention is warranted.
  • The secondary nature of a co-offender's role remains a relevant mitigating consideration in sentencing, even where the offences to which the offender pleaded guilty are themselves very serious and carry maximum sentences of life imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Markarian v The Queen (2005) 215 ALR 213
- R v Tadrosse [2005] NSWCCA 145
- R v Street [2005] NSWCCA 139