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Court of Criminal Appeal 22 May 2009

GRD v R

[2009] NSWCCA 149

Sexual offences
CRIMINAL LAW SENTENCING OFFENCES COMMITTED ABOUT 30 YEARS AGO

Citation: GRD v R [2009] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 22 May 2009
Judge(s): McClellan CJ at CL, Grove J, Buddin J

Background

The applicant, a man in his mid-sixties, pleaded guilty in the District Court to nine counts of sexual offending against his step-daughter committed between 1976 and 1980. The offences occurred when the victim was aged between 9 and 13. They included indecent assault and acts of indecency, charged under sections of the Crimes Act 1900 that have since been repealed.

The District Court sentenced the applicant to a total term of six years imprisonment with a non-parole period of three years, commencing August 2007. The applicant appealed to the Court of Criminal Appeal on the ground that the sentences were excessive.

A number of mitigating factors had been accepted at the sentencing hearing: an early guilty plea attracting a 25% discount, genuine remorse, pre-police admissions of wrongdoing to both the victim and his then wife, a deprived childhood, and a clean record since the offending ceased in 1980.

  • Whether the District Court erred in failing to sentence the applicant by reference to the pattern of sentences that prevailed at the time the offences were committed, approximately 30 years before sentencing.
  • Whether the overall sentence imposed was manifestly excessive in all the circumstances.
  • Whether "special circumstances" existed justifying a longer parole period relative to the non-parole period.

Decision

The Court of Criminal Appeal found that sentencing for offences committed decades in the past requires reference to the sentencing patterns and ranges that existed at the time of the offending, not those current at the time of sentencing. Because community expectations and statutory maxima for sexual offences have shifted considerably since the 1970s, applying contemporary sentencing ranges to offences from that era can produce a result that is unjustly severe.

The Court accepted that the District Court had not adequately calibrated the sentences to reflect those historical norms. Taking into account the applicable maximum penalties at the relevant time (six years for indecent assault under s 76, and two years for acts of indecency under s 76A), together with the mitigating factors already identified, the Court found the overall sentence was excessive and required intervention.

The Court also confirmed that special circumstances existed, consistent with the findings of the sentencing judge. This meant that the parole period could extend beyond the standard proportion of the total sentence, to allow for adequate supervision on release given the applicant's age and the gap since his offending.

The Court resentenced the applicant, producing an effective total term of four years with a non-parole period of two years, rendering him eligible for parole on 16 August 2009.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed and the following substituted:
  • Count 1: fixed term of 12 months from 17 August 2007.
  • Count 2: fixed term of 12 months from 17 August 2007.
  • Count 3: fixed term of 18 months from 17 August 2007.
  • Count 4: fixed term of 18 months from 17 August 2007.
  • Count 5: fixed term of 12 months from 17 February 2008.
  • Count 6: fixed term of 12 months from 17 February 2008.
  • Count 7: fixed term of 18 months from 17 February 2008.
  • Count 9: fixed term of 18 months from 17 February 2008.
  • Count 8: non-parole period of 18 months from 17 February 2008, total term of 3 years 6 months.
  • Effective non-parole period: 2 years. Total effective term: 4 years. Parole eligibility: 16 August 2009.

Key Takeaways

  • Where an offender is sentenced for conduct that occurred decades earlier, the sentencing court must calibrate its approach to the patterns and ranges of sentencing that prevailed at the time of the offending, not those that have since evolved.
  • The maximum penalties in force at the time of the offending are a relevant reference point: under the now-repealed provisions, indecent assault carried a maximum of six years and acts of indecency carried a maximum of two years imprisonment.
  • Mitigating factors of genuine weight, including pre-police admissions of wrongdoing, early guilty pleas sparing the victim from giving evidence, demonstrated remorse, and a lengthy offence-free period, can materially reduce sentences even for serious child sexual offending.
  • "Special circumstances" justifying an extended parole tail relative to the non-parole period were established on the facts, consistent with the sentencing judge's original finding.
  • The Court of Criminal Appeal reduced the total effective term from six years (non-parole period three years) to four years (non-parole period two years), reflecting the error in the District Court's application of sentencing norms.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 76 and 76A (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Parole of Prisoners Act 1966 (NSW)

Cases:
- AJB v R (2007) 169 A Crim R 32
- Bradbury v R [2008] NSWCCA 93
- Featherstone v R [2008] NSWCCA 71
- MJL v R [2007] NSWCCA 261
- R v MJR (2002) 54 NSWLR 368
- R v Thomas [2004] NSWCCA 291
- R v Todd [1982] 2 NSWLR 517