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Court of Criminal Appeal 1 April 2008

HUDSON v R

[2008] NSWCCA 90

Sexual offences
CRIMINAL LAW SENTENCING AGGRAVATED INDECENT ASSAULT NO QUESTION OF PRINCIPLE

Citation: Hudson v R [2008] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 1 April 2008
Judge(s): McClellan CJ at CL, James J, Hoeben J

Background

The applicant pleaded guilty in the District Court to one charge of aggravated indecent assault on a girl aged thirteen years, committed on 22 December 2005. The charge arose from an incident in which the applicant, who had been in a long-term de facto relationship with the complainant's mother, sexually touched the complainant while she was staying at his home overnight. The offending was witnessed by another adult resident of the home and came to light after the witness told the complainant's mother what he had seen.

The applicant had originally faced five charges, including offences of sexual intercourse in circumstances of aggravation. Following acquittals on four charges and a hung jury on the fifth, a retrial was set down. At that retrial, the applicant pleaded guilty to the lesser alternative charge of aggravated indecent assault, which the Crown accepted in full satisfaction of the indictment.

The District Court sentenced the applicant to a head sentence of three years and seven months, with a non-parole period of two years and two months, backdated to 17 August 2006. The applicant sought an extension of time to apply for leave to appeal, arguing the sentence was excessive.

  • Whether the sentencing judge assessed the objective seriousness of the offence at too high a level
  • Whether the sentencing judge erred by reference to an earlier comparable case (AIS v Regina), specifically in setting the non-parole period as too large a proportion of the head sentence
  • Whether leave to appeal against sentence should be granted, and if so, whether the appeal should succeed

Decision

James J (with whom McClellan CJ at CL and Hoeben J agreed) granted the extension of time and leave to appeal, but dismissed the appeal. His Honour found no error in the sentencing judge's assessment of objective seriousness. The sentencing judge had placed the offence below the midpoint of the range of seriousness but above the middle of the lower half of that range, a conclusion the Court found was open on the facts.

The applicant's submission comparing the sentence to that in AIS v Regina was rejected. James J reiterated the well-established principle, drawn from R v Morgan, that an appropriate sentence cannot be determined by point-by-point comparison with a single other case. The Court found that even on a direct comparison, no error was demonstrated.

McClellan CJ at CL added a separate observation about the standard non-parole period. His Honour noted that the legislature had prescribed a five-year standard non-parole period for this offence category, reflecting the seriousness with which Parliament views offending in the mid-range. The non-parole period imposed by the sentencing judge (two years and two months) was less than half the standard non-parole period, which the Court regarded as appropriate given the mitigating factors present.

The Court noted factors in the applicant's favour at sentencing, including that the offending was probably impulsive, occurred in the context of a single offence (having regard to the acquittals), and involved no physical violence or emotional manipulation. Factors against the applicant included the nature and range of the conduct, the significant age disparity between the applicant and the complainant, and the abuse of a position of trust.

Orders Made

  • Extension of time for leave to appeal granted
  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • Sentencing appeals cannot succeed by a point-by-point comparison with a single comparable case; the Court confirmed the approach in R v Morgan that individual comparisons do not determine the appropriate sentence.
  • The standard non-parole period for aggravated indecent assault under s 61M of the Crimes Act is five years, and the Court of Criminal Appeal emphasised that sentencing judges must give this benchmark genuine weight, particularly where the sentence approaches the statutory maximum.
  • No error was established in the sentencing judge's placement of the offence below the mid-range of objective seriousness, where that assessment took account of relevant mitigating factors including the impulsive nature of the offending and the absence of violence.
  • A guilty plea entered at a late stage of proceedings, after acquittals on more serious charges and following an unsuccessful attempt to withdraw the plea, was a relevant but contextually limited mitigating factor in the sentencing exercise.
  • In dismissing the appeal, the Court confirmed that a non-parole period set at less than half the standard non-parole period can be appropriate where the objective seriousness of the offence falls in the lower range and other mitigating factors are present.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 61M (aggravated indecent assault; maximum penalty seven years; standard non-parole period five years)
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- AIS v Regina [2006] NSWCCA 305
- R v Morgan (1993) 70 A Crim R 368