Citation: NT v Regina [2007] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 24 May 2007
Judge(s): James J, Rothman J, Harrison J
Background
The applicant was the stepfather of the victim, who was aged 10 and 11 at the time of the offending. He was committed to the District Court for sentence on five counts of aggravated indecent assault, two counts of aggravated sexual assault, and one count of attempted aggravated sexual assault. The offences occurred between June 2005 and October 2005 at the family home in Wentworth, NSW.
The applicant pleaded guilty to all charges. On 25 August 2006, Marien DCJ sentenced him to an effective total term of 9 years and 9 months, with a total effective non-parole period of 5 years and 9 months.
The applicant sought leave to appeal, contending that the overall sentence was manifestly excessive. He argued in particular that the sentencing judge had not given sufficient weight to what that judge himself had described as the "exceptional" subjective features of the case, including the applicant's early plea of guilty.
Legal Issues
- Whether the overall sentence was manifestly excessive, having regard to the applicant's early guilty plea.
- Whether the sentencing judge gave sufficient weight to the "exceptional" subjective features he identified when determining the appropriate sentence.
Decision
Harrison J (with whom James J agreed) held that the sentencing judge had committed no error. His Honour found that the sentencing judge had carefully and correctly balanced the serious objective criminality of the offences against the exceptional factors favourable to the applicant. The structure of the sentencing remarks made this balancing exercise clear.
The applicant's argument mischaracterised the sentencing judge's approach. The mere fact that the sentencing judge described the subjective case as "exceptional" and "compelling" did not mean that greater leniency was required. Cases of sexual assault upon young children are properly to be regarded as crimes of the utmost seriousness, and nothing in the applicant's case suggested otherwise.
Rothman J added a brief observation about the nature of the sentencing task. Even for offences that are repugnant, a sentencing judge must assess where the particular conduct falls within the full range of criminality covered by the relevant offence, disregarding general repugnance and focusing instead on relative criminality within that range. The sentencing judge disclosed no error in making that assessment.
Because no error was established, the precondition for appellate interference with the sentence at first instance was not met. The appeal was dismissed.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that cases of sexual assault upon young children are properly to be regarded as crimes of the utmost seriousness, and this characterisation sets the foundation against which all subjective mitigating factors are weighed.
- A sentencing judge's use of language such as "exceptional" or "compelling" to describe an offender's subjective case does not, of itself, require a more lenient outcome. The weight to be given to such factors must be balanced against the gravity of the objective offending.
- Where a sentencing judge carefully and expressly balances objective seriousness against favourable subjective features, an appellate court will not intervene merely because the offender argues more weight should have been given to mitigation.
- Rothman J clarified that the task of placing a particular offence within the range of criminality for that offence type requires the sentencing court to evaluate relative criminality, rather than to respond to the general repugnance of the offending category.
- No error having been demonstrated, the precondition for appellate resentencing was not satisfied, consistent with established authority requiring demonstrated error before an appellate court may interfere with a first-instance sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1), (2) and (3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Pearce v The Queen (1988) 194 CLR 610
- R v AD [2005] NSWCCA 208
- R v BJW (2000) 112 A Crim R 1
- R v Doherty [2006] NSWCCA 133
- R v Doolan [2006] NSWCCA 29
- R v Hopkins [2004] NSWCCA 105
- R v Kennedy [2000] NSWCCA 527
- R v Reyes [2005] NSWCCA 218
- R v Sangalang [2005] NSWCCA 171
- R v Simpson (2001) 53 NSWLR 704
- R v Slack [2004] NSWCCA 128
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v TV [2006] NSWCCA 174
- R v Way (2004) 60 NSWLR 168