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Court of Criminal Appeal 27 July 2007

SAGE v R

[2007] NSWCCA 224

Sexual offences
SENTENCE APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: SAGE v R [2007] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 27 July 2007
Judge(s): Giles JA; Latham J; Mathews AJ

Background

The appellant was an Australian man, aged nearly 67 at the time of sentencing, who travelled to the Philippines in early 2005 and engaged in sexual activity with multiple boys under the age of 16. Upon his return to Australia, Customs officers searched his luggage and discovered diary notebooks containing detailed entries referencing the ages, physical descriptions, and apparent sexual performances of his victims.

The appellant pleaded guilty in the NSW District Court to five counts of sexual intercourse with a person under 16 whilst outside Australia, and two counts of committing an act of indecency on a person under 16 whilst outside Australia. A further five charges under the indecency provision were taken into account at sentence. McLoughlin DCJ imposed sentences resulting in an aggregate term of seven years and six months imprisonment, with an aggregate non-parole period of four years and six months.

The appellant sought leave to appeal against those sentences in the Court of Criminal Appeal, raising a single ground: that the sentencing judge placed undue emphasis on specific deterrence, producing an overall sentence that was manifestly excessive.

  • Whether the sentencing judge gave undue weight to the principle of specific deterrence in sentencing the appellant
  • Whether the resulting aggregate sentence and non-parole period were manifestly excessive

Decision

The Court granted leave to appeal but dismissed the appeal. Latham J (with Giles JA and Mathews AJ agreeing) found it was clearly open to the sentencing judge to factor specific deterrence into the sentencing exercise. Two expert reports before the court, one from a psychologist and one a Pre-Sentence Report, each offered a guarded prognosis regarding the risk of reoffending. The psychologist concluded the appellant suffered a significant psychosexual disturbance consistent with paedophilia and did not discount the prospect of future offending.

The appellant's own evidence undermined his case on specific deterrence. Although he initially maintained in examination-in-chief that the detailed diary entries were simply record-keeping, he conceded in cross-examination that the diary was kept for titillation purposes. The sentencing judge expressly acknowledged the appellant's claim to have the willpower to resist reoffending, but the expert material provided a sufficient foundation for the weight given to specific deterrence.

The Court found no basis for concluding the individual sentences or the aggregate sentence fell outside the sentencing judge's legitimate discretion. A survey of comparable first-instance sentences for similar offences, involving offenders aged between 40 and 76 with otherwise strong subjective features and guilty pleas, showed sentences of a similar order had been imposed in other jurisdictions. Given the maximum penalties of 17 years (for the sexual intercourse offences) and 12 years (for the indecency offences), and the acknowledged need for some accumulation, the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court acts within its discretion in giving significant weight to specific deterrence where psychological and pre-sentence reports offer only a guarded prognosis on the risk of reoffending, even where the offender has strong subjective features such as advanced age, no prior convictions, and a lengthy productive working life.
  • An appellant who challenges a sentence as manifestly excessive on the basis of undue emphasis on one sentencing factor, without separately challenging any individual sentence or the partial accumulation, must demonstrate that the aggregate sentence itself is beyond the range of a legitimate sentencing discretion.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that comparative sentences imposed in other Australian jurisdictions for equivalent offending are a relevant reference point when assessing whether an aggregate sentence is manifestly excessive.
  • Under sections 50BA(1) and 50BC(1)(a) of the Crimes Act 1914 (Cth), Australian citizens and residents can be prosecuted domestically for child sexual offences committed overseas, and the full weight of applicable sentencing principles, including specific deterrence, applies.
  • No single sentencing error is established merely because an offender presents an otherwise compelling subjective case; where expert evidence supports a continued risk of reoffending, that evidence may properly bear on the weight given to deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 50BA(1), 50BC(1)(a), 16BA

Cases:
- No cases were cited by name in the provided judgment text.