Citation: Clarke v Regina [2009] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J, Blanch J, Kirby J (Kirby J delivering the principal judgment)
Background
The appellant was convicted by jury in the District Court of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900. The victim was a 14-and-a-half-year-old girl, the half-sister of the appellant's partner. The assault occurred at the appellant's home, where the victim was an overnight guest, and involved the appellant touching the victim's breast and pubic area while she slept.
Coolohan DCJ sentenced the appellant to two years' imprisonment with a non-parole period of 12 months. The sentencing judge found two circumstances of aggravation: a breach of trust, and substantial emotional harm to the victim arising from the offence.
The appellant sought leave to appeal against the sentence on three grounds, contending that the sentencing judge had failed to give adequate weight to subjective factors, had not properly considered non-custodial alternatives, and had placed excessive reliance on the Victim Impact Statement.
Legal Issues
- Whether the sentencing judge erred in finding the offence involved a breach of trust, given that the appellant was not the victim's parent
- Whether the sentencing judge erred in finding the victim suffered "substantial" emotional harm under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, including questions of causation and the threshold for "substantial" harm
- Whether the sentencing judge gave adequate consideration to non-custodial sentencing alternatives
- Whether the overall sentence was manifestly excessive having regard to the appellant's subjective circumstances
Decision
Breach of trust: The Court confirmed that no error arose from the breach of trust finding. A position of trust is not confined to parental or spousal relationships. Because the victim was the sister of the appellant's partner and a guest in his home, the breach of trust finding was properly open to the sentencing judge, and the point was not seriously contested on appeal.
Victim Impact Statement and substantial harm: The appellant argued that the emotional harm described in the Victim Impact Statement was caused by the family disruption following the victim's complaint to police, not by the offence itself, and therefore should not have been treated as substantial harm. Kirby J rejected the causation argument, finding it was entirely predictable that a sexual assault in this context would lead to a complaint, and that family rupture was a reasonably foreseeable consequence. However, the Court did express some reservation about whether the harm, assessed properly, rose to the level of "substantial" within the meaning of the Act. On balance, the Court was not persuaded that any error in this respect materially affected the outcome, given the other established aggravating feature.
Non-custodial alternatives: The appellant contended that the sentencing judge's remarks suggested he had foreclosed the possibility of any non-custodial sentence. The Court disagreed. Reading the remarks as a whole, the sentencing judge had in fact considered alternatives. Periodic detention was not available to the appellant by statute, and a Probation and Parole report assessed him as unsuitable for community service. In that context, the sentencing judge's conclusion that full-time custody was appropriate disclosed no error.
Manifest excess: The Court found the sentence fell within the available range. The offence was below the mid-range in seriousness and the touching had been transitory, but the standard non-parole period remained an important sentencing guidepost. No error warranting appellate intervention under the House v The King standard was established.
Orders Made
- Leave to appeal granted, but the appeal dismissed.
Key Takeaways
- A position of trust for the purposes of sentencing aggravation is not confined to parental or spousal relationships. The Court of Criminal Appeal confirmed it can extend to situations where the offender stood in a position of domestic responsibility or hospitality toward the victim.
- Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, emotional harm must be caused by the offence, but reasonably foreseeable consequences of the offence, including family rupture following a complaint, can form part of that harm.
- The threshold for "substantial" emotional harm requires harm significantly more deleterious than what an ordinary person might be expected to experience; some degree of distress is assumed and does not of itself satisfy the standard (following R v Youkhana).
- In dismissing the appeal, the Court treated the standard non-parole period as a meaningful guidepost indicating the appropriate sentencing range, even where the offence was assessed as below the mid-range in objective seriousness.
- Statutory ineligibility for periodic detention and an adverse community service assessment are relevant factors in determining whether full-time custody is appropriate; the sentencing court is not required to adopt a non-custodial alternative where those options are unavailable or unsuitable.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(2)(k), 54C(1), 65B
Cases:
- R v MAK [2005] NSWCCA 369
- De Rosa v Western Australia [2006] WASCA 57; (2006) 162 A Crim R 344
- R v Youkhana [2004] NSWCCA 412
- R v Wickham [2004] NSWCCA 193
- Siganto v The Queen (1998) 194 CLR 656
- House v The King (1936) 55 CLR 499
- Lovell v Lovell (1950) 81 CLR 513
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Zamagias [2002] NSWCCA 17
- Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168