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Court of Criminal Appeal 10 June 2009

SDS v R

[2009] NSWCCA 159

Sexual offences
CRIMINAL LAW SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE OFFENDING

Citation: SDS v R [2009] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 10 June 2009
Judge(s): Giles JA, Buddin J, Harrison J

Background

The applicant pleaded guilty in the District Court to four counts of sexual intercourse with a child aged between 10 and 16 years who was under his authority, contrary to s 66C(2) of the Crimes Act 1900. The offences occurred between April and July 1997. The victim was the applicant's 14-year-old sister-in-law, who had moved into his home during a difficult period in her family life.

The sentencing judge imposed a series of consecutive fixed terms and parole-eligible sentences totalling an effective non-parole period of four years and a total term of six years. A 25 per cent discount was applied for early guilty pleas, making the notional pre-discount starting point eight years. Special circumstances were found, given that it was the applicant's first custodial sentence and his mental health needs on parole.

The applicant sought leave to appeal, arguing the sentences were manifestly excessive. He contended the sentencing judge had not given adequate weight to his mental health condition and had wrongly failed to find good prospects of rehabilitation and a low likelihood of re-offending.

  • Whether the sentences imposed were manifestly excessive, including whether the eight-year starting point was too high given the sentencing patterns applicable to offences committed in 1997
  • Whether the sentencing judge gave adequate weight to the applicant's mental health condition (including depression, dysthymia, anxiety, and borderline personality disorder)
  • Whether the sentencing judge erred in failing to make express findings of good prospects for rehabilitation and low likelihood of re-offending

Decision

On the question of whether the sentences were manifestly excessive, the Court examined seven comparable decisions involving s 66C(2) offences to assess the sentencing pattern prevailing in 1997. The Court noted the established principle that historical offences must be sentenced by reference to the patterns applicable at the time of offending, not contemporary norms. Having reviewed that pattern, the Court was not persuaded that the eight-year starting point was outside the permissible range for offending of this character, particularly given it involved four separate counts across multiple occasions.

On the mental health question, the Court acknowledged that the sentencing judge's reasons were "somewhat economical" given the complexity of the applicant's condition. However, the Court found the sentencing judge was aware of the need to balance competing considerations arising from mental illness in the sentencing context, including the extent to which the condition was linked to the offending. The Court was not persuaded that insufficient weight had been given to the applicant's mental health.

On rehabilitation and re-offending prospects, the Court accepted that the sentencing judge was not obliged to uncritically accept the expert opinion that the applicant posed only a low recidivism risk. The Court noted the sentencing judge would have been justified in approaching those opinions with some scepticism, given the applicant's unresolved mental health issues, his isolated lifestyle, and his inability to maintain employment. The Court was not satisfied the sentencing judge had failed to consider or appropriately weigh these matters.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • When sentencing for historical sexual offences, the Court confirmed that the sentencing pattern prevailing at the time of the offending must guide the exercise, not contemporary sentencing norms.
  • A sentencing judge is not required to accept expert opinions on recidivism risk uncritically, particularly where unresolved mental health issues, social isolation, and long-term unemployment complicate any assessment of rehabilitation prospects.
  • Reasons on mental health need not be elaborate, provided the sentencing judge demonstrates awareness of the relevant competing considerations and seeks to give effect to them in the sentence imposed.
  • No error was established merely because the sentencing judge did not make express findings that the applicant had good prospects of rehabilitation or was unlikely to re-offend, where the relevant matters were taken into account.
  • In dismissing the appeal, the Court reinforced that comparative sentence statistics drawn from very small sample sizes carry limited utility in appellate review of sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(2)

Cases:
- Moon v R (2000) 117 A Crim R 497
- MJR v R (2002) 130 A Crim R 481
- R v Hemsley [2004] NSWCCA 228
- R v RJW (NSWCCA, unreported, 2 August 1994)
- R v PBH (NSWCCA, unreported, 2 May 1996)
- Foster v R (NSWCCA, unreported, 14 July 1998)
- R v Gould [1999] NSWCCA 177
- R v CJB [2000] NSWCCA 161
- R v JCW [2000] NSWCCA 209
- R v DJM (2002) 136 A Crim R 269
- R v LTP [2004] NSWCCA 109
- Leach v R [2008] NSWCCA 73