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Court of Criminal Appeal 13 November 2008

Ridley v R

[2008] NSWCCA 299

Sexual offences

Citation: Ridley v R [2008] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 13 November 2008
Judge(s): Bell JA, Blanch J, Hall J

Background

The applicant was the former de facto partner of the complainant's mother. After the family relationship broke down in 2003, the complainant (then aged 17) moved out of the family home with the applicant, and the two began a consensual sexual relationship. A child was born from that relationship in March 2004.

The applicant faced a seven-count indictment in the District Court, including multiple counts of sexual intercourse without consent. The jury acquitted him on those counts. He pleaded guilty at the earliest opportunity to the seventh count: a charge under s73(2) of the Crimes Act 1900, which criminalises sexual intercourse with a person aged 17 but under 18 who is in the "special care" of the accused.

A notable feature of the case was that s73(2) did not exist before 13 June 2003. The conduct had been part of an ongoing consensual relationship that only became a criminal offence partway through. The District Court sentenced the applicant to 12 months' imprisonment with a six-month non-parole period. He served two months before being released on bail pending this appeal.

  • Whether the District Court imposed a sentence that was too severe, warranting intervention under s6(3) of the Criminal Appeal Act 1912
  • Whether the sentencing judge erred by treating the birth of a child as a significant aggravating circumstance, given that the child was in all probability conceived before the conduct was criminalised

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that a less severe sentence was warranted. Blanch J, with whom Bell JA and Hall J agreed, identified several considerations pointing away from imprisonment: the conduct had only become unlawful partway through an already-established consensual relationship; the applicant pleaded guilty at the earliest opportunity; he had no prior criminal convictions; and he held a strong reputation in the community and was found unlikely to re-offend.

Bell JA added a further, distinct basis for finding error. The sentencing judge had treated the birth of a child as a significant aggravating circumstance under s73(2), reasoning that the applicant had continued unprotected sex for his own gratification. Bell JA noted that, given the child's birth date, it was entirely probable the child had been conceived before the offence was even created by statute. Taking that circumstance into account as a significant aggravating factor was, in Bell JA's view, clear error.

The Court quashed the District Court sentence and substituted a deferred sentence, requiring the applicant to enter into a good behaviour bond under s9 of the Crimes (Sentencing Procedure) Act 1999 for three years, with no supervision order.

Orders Made

  • Leave to appeal granted
  • Appeal against severity of sentence allowed
  • Sentence imposed in the District Court quashed
  • In lieu, sentence deferred on condition the applicant enters into a good behaviour bond under s9 of the Crimes (Sentencing Procedure) Act 1999 for a period of three years
  • No order as to supervision

Key Takeaways

  • Where conduct forming part of an ongoing consensual relationship only became a criminal offence after the relationship had already commenced, that chronology is a relevant and potentially weighty consideration on sentence.
  • A sentencing court commits clear error if it treats as a significant aggravating circumstance a consequence (here, the birth of a child) that in all probability arose before the relevant conduct was criminalised.
  • Under s6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will quash a sentence and substitute a lesser one only where it is of the opinion that a less severe sentence is warranted in law and should have been passed.
  • A guilty plea at the earliest opportunity, the absence of prior convictions, good community reputation, and a finding of low risk of re-offending are all matters that bear on the appropriate sentence, including whether imprisonment is warranted at all.
  • Section 9 of the Crimes (Sentencing Procedure) Act 1999 permits a court to defer passing sentence and impose a good behaviour bond, which the Court of Criminal Appeal treated as an available and appropriate alternative to the custodial term imposed below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s73(2)
- Criminal Appeal Act 1912 (NSW), s6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s9

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