Citation: Bradbery v Regina [2008] NSWCCA 93
Court: New South Wales Court of Criminal Appeal
Date: 23 May 2008
Judge(s): Mason P, Latham J, Mathews AJ
Background
The applicant, an 80-year-old retired man with no prior criminal history, pleaded guilty to four charges of indecently assaulting his youngest daughter when she was between 8 and 12 years old. The offences occurred between 1970 and 1975, and were charged under the since-repealed s 76 of the Crimes Act 1900. The offending included digital touching, forced manual contact, and cunnilingus.
The offences did not come to official attention for decades. The victim confronted the applicant in the mid-1990s, but did not report the matter to police until December 2005. Intercepted telephone calls in 2006 captured admissions by the applicant to at least some of the conduct.
The District Court sentenced the applicant to fixed terms of 9 months on each of the first three charges, with a cumulative structure, and a total sentence of 18 months (non-parole period of 9 months, balance of 9 months) on the fourth charge. The aggregate produced a non-parole period of 1 year and 9 months. The applicant sought leave to appeal on the grounds that the sentences were excessive, citing the failure to apply historical sentencing norms, insufficient weight given to delay, and insufficient regard to hardship on his dependent wife.
Legal Issues
- Whether the sentencing judge was required to replicate the sentencing practices that applied at the time the offences were committed in the early 1970s, not current practices.
- Whether the non-parole period set by the District Court reflected contemporary rather than historical sentencing patterns.
- Whether the extraordinary delay between the offending and prosecution warranted a reduction in sentence.
- Whether the severe hardship that imprisonment would cause to the applicant's dependent wife required an adjustment to the sentence.
Decision
The Court of Criminal Appeal found error in the approach taken by the District Court on the first ground, which it considered in conjunction with the delay ground. The court confirmed the established principle that, where offences were committed in a different era, the sentencing court must replicate the sentencing practices that would have applied at that time, rather than impose sentences in line with current norms.
The Court found that the District Court had fallen into error in two respects. First, it failed to apply a non-parole period consistent with the historical pattern, which at the time would have been a much lower proportion of the head sentence. Second, it treated the non-availability of remissions under current law as a relevant consideration in setting the non-parole period. The Court confirmed that the abolition of remissions is not a proper basis for adjusting the non-parole period upward when sentencing for historical offences.
On the wife's hardship ground, the Court acknowledged real and ongoing suffering but held that hardship to third parties, even where extreme, does not ordinarily require a reduction in sentence. The principle, drawn from Regina v Edwards, is that imprisonment routinely causes hardship to others, and only truly exceptional circumstances could justify mitigation on that basis. The circumstances here, while serious, did not meet that threshold.
The Court allowed the appeal, quashed the District Court sentences, and re-sentenced the applicant. The revised sentences reduced the fixed terms on the first three charges from 9 months to 6 months each, and restructured the fourth charge to a non-parole period of 4 months with a balance of term of 12 months. The aggregate sentence remained at 2 years but with a substantially reduced non-parole period of 1 year.
Orders Made
- Leave to appeal granted.
- Appeal allowed; sentences imposed in the District Court quashed.
- Charge 1: fixed term of 6 months imprisonment, commencing 16 July 2007, expiring 15 January 2008.
- Charge 2: fixed term of 6 months imprisonment, commencing 16 August 2007, expiring 15 February 2008.
- Charge 3: fixed term of 6 months imprisonment, commencing 16 September 2007, expiring 15 March 2008.
- Charge 4: non-parole period of 4 months commencing 16 March 2008, expiring 15 July 2008, with a balance of term of 12 months expiring 15 July 2009; the applicant entitled to release on 16 July 2008.
Key Takeaways
- Where an offender is sentenced for conduct committed decades earlier, the sentencing court must replicate the practices and norms that applied at the time of the offending, not impose sentences calibrated to current standards.
- The non-availability of remissions under the modern legislative regime is not a relevant factor when setting a non-parole period for historical offences. Adjusting the non-parole period upward to compensate for the absence of remissions constitutes error.
- The proportion of the non-parole period to the total sentence is a meaningful indicator of whether a court has applied historical or contemporary sentencing patterns. A non-parole period representing 70% of the total sentence, even after a special circumstances finding, signalled departure from historical norms in this case.
- Hardship to a dependent spouse or third party caused by an offender's imprisonment is a recognised consideration but does not ordinarily reduce a sentence. Only circumstances of a truly exceptional nature could ground mitigation on that basis, as confirmed in Regina v Edwards.
- Significant delay between the commission of historical offences and prosecution is a relevant mitigating factor in sentencing, and must be given genuine weight in the overall assessment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76 (repealed)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- Regina v Edwards (1996) 90 ACR 510
- Regina v Dib, NSWCCA, 13 September 1991
- R v MJR (2002) 54 NSWLR 368
- AJB v R [2007] NSWCCA 51
- R v Johnson, NSWCCA, 16 May 1997