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Court of Criminal Appeal 25 July 2007

Nelson v Regina

[2007] NSWCCA 221

Sexual offences
SENTENCE APPEAL NO EVIDENCE OF OTHER OFFENCES OFFENCE COMMITTED 35 YEARS AGO OFFENCE NOT IN MID RANGE.

Citation: Nelson v Regina [2007] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 25 July 2007
Judge(s): Tobias JA, Latham J, Mathews AJ

Background

The appellant was sentenced in the District Court in March 2007 for a single count of indecent assault of a female, an offence committed in 1972 under the then-section 76 of the Crimes Act 1900. The maximum penalty applicable at the time of the offence was three years imprisonment. The complainant was 16 years old at the time, and the appellant was 31. He had been in a position of trust over her, and the assault occurred when she refused to continue a prior sexual relationship with him.

The appellant pleaded guilty in November 2006. The sentencing judge imposed a sentence of 14 months with an 8-month non-parole period. The sentencing judge characterised the offence as falling within the mid-range of objective gravity and treated the assault as not being an isolated incident, drawing on the prior sexual relationship described in the agreed facts.

The appellant sought leave to appeal on four grounds: that the sentencing judge had improperly sentenced on the basis of other offences without an evidentiary foundation; that disproportionate weight was given to general deterrence; that the offence was wrongly classified as mid-range in gravity; and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the offence as not isolated and implicitly sentencing on the basis of other, uncharged offences for which there was no proper evidentiary foundation
  • Whether the sentencing judge correctly characterised the objective gravity of the offence as falling within the mid-range for offences under the former section 76 of the Crimes Act 1900
  • Whether the sentence of 14 months imprisonment was manifestly excessive in all the circumstances

Decision

On Ground 1, the Court found that the sentencing judge had drawn on references in the agreed facts to a prior consensual sexual relationship and treated this as establishing that the assault was not an isolated incident, then used that finding to increase the sentence. The Court held this approach was problematic: there was no proper evidentiary basis upon which to sentence for additional uncharged conduct, and the judge's repeated references to the non-isolated nature of the offending clearly affected the sentencing outcome.

On Ground 3, the Court found that the sentencing judge failed to take into account the full range of conduct that fell within the former section 76 at the time of the offence. In 1972, there was no extended definition of sexual intercourse to capture acts such as fellatio, cunnilingus or anal intercourse as rape. All non-penile/vaginal sexual assaults by male offenders against female victims had to be charged under the indecent assault provision. The section therefore covered an extremely broad spectrum of conduct, including very serious assaults.

Given that breadth, the Court concluded that the appellant's offence, which involved non-consensual touching of the breasts and external genitalia, fell at the lower end of the range proscribed by the provision, not the mid-range. Nonetheless, the Court acknowledged that a custodial sentence remained appropriate given the circumstances, particularly the breach of trust involved.

On resentencing, the Court took into account the appellant's age (67), his low assessed risk of reoffending, evidence of genuine remorse, his prior good character, and the considerable utilitarian value of a guilty plea in a case relying on a single complainant's uncorroborated account of events 35 years earlier. The Court substituted a fixed term of four months imprisonment, dated from the original sentencing date, which meant the appellant was entitled to immediate release.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Hosking SC DCJ on 30 March 2007 quashed
  • In lieu, a fixed term of four months imprisonment imposed from 30 March 2007, expiring 29 July 2007, with the appellant entitled to be released on that date

Key Takeaways

  • A sentencing court cannot treat an offence as non-isolated, or increase a sentence on the basis of other conduct, without a proper evidentiary foundation for that conclusion, even where agreed facts hint at a broader pattern.
  • Under the former section 76 of the Crimes Act 1900 (as it stood in 1972), the range of proscribed conduct was exceptionally wide, encompassing all forms of sexual assault short of penile/vaginal intercourse. This context is relevant when assessing where a particular offence sits within the sentencing range for that provision.
  • The Court of Criminal Appeal confirmed that the mid-range characterisation of an offence must account for the full spectrum of conduct captured by the relevant provision, not merely the nature of the immediate act in isolation.
  • In resentencing, the utilitarian value of a guilty plea is a significant mitigating factor, particularly where the Crown's case rests on the unsupported evidence of a single complainant about events occurring decades earlier.
  • Offences committed many years before sentencing require the sentencing court to apply the maximum penalty current at the time of the offence and to assess gravity by reference to the legislative framework as it then existed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 76 (repealed)

Cases:
- R v Moon (2000) 117 A Crim R 497
- R v MJR (2002) 54 NSWLR 368
- AJB v Regina [2007] NSWCCA 51