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Court of Criminal Appeal 17 December 2008

KING v REGINA

[2008] NSWCCA 316

Also reported as 191 A Crim R 552
Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT DIGITAL PENETRATION PLEA OF GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: King v Regina [2008] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL, Hidden J, Fullerton J

Background

The applicant pleaded guilty in the Lismore District Court to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, with the plea accepted in discharge of a two-count indictment. The offence involved digital penetration of a female victim in a public toilet cubicle. During the assault the victim struggled, fell, and struck the back of her head.

The sentencing judge, Norrish DCJ, imposed a total sentence of 5 years and 10 months, with a non-parole period of 4 years and 3 months. That sentence incorporated a one-sixth discount for the guilty plea, putting the starting point at 7 years. The applicant then sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

The applicant had a significant criminal record including offences of dishonesty and violence, including violence against women, as well as prior periods of imprisonment and parole breaches. There were no prior sexual offences of significance. His Honour took into account the applicant's Aboriginal background, the social disadvantage he had experienced, and his artistic abilities, while remaining guarded about his rehabilitation prospects.

  • Whether the sentence of 5 years and 10 months for sexual intercourse without consent (by digital penetration) was manifestly excessive
  • Whether the sentencing judge gave appropriate weight to the objective seriousness of the offence, having regard to the form of penetration and the circumstances in which it occurred
  • Whether sentencing statistics from the Judicial Commission provided a sufficient basis to challenge the sentence as excessive

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal, with Hidden J delivering the principal judgment and McClellan CJ at CL and Fullerton J agreeing.

Hidden J accepted the applicant's submission that the form of penetration is relevant to the objective gravity of an offence under s 61I, as confirmed by the High Court in Ibbs v The Queen. However, his Honour emphasised that form of penetration is not necessarily determinative, and that all circumstances must be considered. The sentencing judge had appropriately treated this as "not a simple case of digital penetration," noting the applicant had forced his way into a private toilet cubicle, exhibited considerable belligerence, and that the struggle reflected the victim's resistance to an unwanted intrusion into her privacy.

The Court acknowledged that the sentence sat towards the upper end of the range suggested by Judicial Commission statistics for s 61I offences attracting the standard non-parole period. However, it reiterated that raw sentencing statistics are of limited utility. The sentencing judge's assessment of the objective gravity of the offence was clearly open on the facts, and the applicant's serious antecedents provided no basis for reducing the sentence. The sentence was described as severe, but not outside the legitimate exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that while the form of penetration is relevant to the objective seriousness of a s 61I offence, it is not determinative; all surrounding circumstances must be weighed.
  • A characterisation of an offence as "opportunistic" does not automatically place it at the low end of objective seriousness, particularly where the circumstances involve a serious violation of a victim's privacy and significant resistance.
  • Sentencing statistics drawn from Judicial Commission data have a recognised place in sentencing appeals, but the Court reiterated their limited weight when presented as raw figures without contextual analysis.
  • An applicant's serious criminal record, including a history of violence against women and repeated parole breaches, can foreclose any subjective mitigation that might otherwise reduce a sentence within range.
  • In dismissing the appeal, the Court applied the principle from R v Way that the standard non-parole period guides the sentencing exercise, with the final sentence determined by reference to the prescribed maximum and the totality of the offence's objective and subjective features.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum 14 years; standard non-parole period 7 years)

Cases:
- Ibbs v The Queen (1987) 163 CLR 447 (High Court: form of sexual penetration relevant to objective gravity of offence)
- R v Way [2004] NSWCCA 131; 60 NSWLR 168 (Court of Criminal Appeal: application and role of standard non-parole periods in sentencing)