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35
Court of Criminal Appeal 11 March 2009

R v Hibberd

[2009] NSWCCA 20

Also reported as (2009) 194 A Crim R 1
Sexual offences
CRIMINAL LAW CROWN APPEAL PARTICULAR OFFENCE SEXUAL INTERCOURSE WITHOUT CONSENT RELEVANT FACTORS SENTENCE MANIFESTLY INADEQUATE

Citation: R v Hibberd [2009] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 11 March 2009
Judge(s): Tobias JA, James J, Price J

Background

The respondent was convicted in the District Court of multiple counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The offences were grouped into two clusters, with sentences structured so that several counts ran concurrently. The sentencing judge imposed what the Crown later challenged as an inadequate sentence for count 4, which involved non-consensual digital penetration.

The Crown appealed on the basis that the sentence for count 4 was manifestly inadequate and that the overall sentencing structure failed to reflect the full criminality of the respondent's conduct. In particular, the Crown argued that the sentencing judge had underweighted the objective seriousness of the offence by treating digital penetration as inherently less serious than other forms of sexual penetration.

The Court of Criminal Appeal heard the appeal on 8 December 2008 and delivered judgment on 11 March 2009.

  • Whether the sentence imposed for count 4 (sexual intercourse without consent by digital penetration) was manifestly inadequate.
  • Whether there is a rule of law or sentencing principle that non-consensual digital penetration is necessarily less serious than other forms of sexual penetration, such as penile penetration.
  • Whether the overall sentence adequately reflected the totality of the respondent's criminality, taking into account the structure of concurrent and cumulative terms.
  • Whether the Court should exercise its discretion to intervene on a Crown appeal, notwithstanding the double jeopardy considerations.

Decision

The Court upheld the Crown appeal, finding that the sentence for count 4 was manifestly inadequate. Price J, with whom Tobias JA and James J agreed, concluded that the sentencing judge had fallen into error in assessing the objective seriousness of the digital penetration offence. The overall sentence structure, particularly the concurrency afforded to offences that occurred on separate occasions and caused distinct harm to the complainant, failed to capture the totality of the respondent's offending.

On the central legal question, the Court rejected any proposition that digital penetration must be treated as less serious than penile penetration as a matter of law. Drawing on the High Court's analysis in Ibbs v The Queen (1987) 163 CLR 447, the Court confirmed that the seriousness of any particular act of sexual penetration depends on the facts and circumstances of each case, not on the category of penetration involved. Section 61I creates a single offence encompassing multiple forms of penetration, and the maximum penalty is reserved for the worst cases across all categories.

The Court acknowledged that some earlier decisions of the Court of Criminal Appeal, including Regina v Santos Da Silva (1995), had suggested digital penetration was likely to be less serious than penile penetration. The Court in this case clarified that no such canon of law exists. While the nature of the penetration is one relevant factor in assessing objective seriousness, it cannot be treated as determinative or applied as a blanket rule.

Applying double jeopardy principles, the Court resentenced the respondent on count 4 to a term toward the lower end of the available range. The revised sentence for count 4 was increased, producing an overall effective sentence of 10 years with a non-parole period of 7 years and 6 months.

Orders Made

  • The Crown appeal against sentence was upheld.
  • The sentence imposed in the District Court for count 4 (sexual intercourse without consent, contrary to s 61I of the Crimes Act) was quashed.
  • In substitution, the respondent was sentenced for count 4 to 7 years imprisonment, comprising a non-parole period of 4 years and 6 months commencing 23 July 2009 and expiring 22 January 2014, with a balance of term of 2 years and 6 months expiring 22 July 2016.
  • Sentences for counts 1, 2, 3, 5, 6 and 7 were confirmed.
  • The earliest date for release to parole was set at 22 January 2014.

Key Takeaways

  • There is no rule of law requiring that non-consensual digital penetration be treated as less serious than other forms of sexual penetration. The Court of Criminal Appeal confirmed that the objective seriousness of any act of sexual assault depends on the particular facts and circumstances of the case.
  • Ibbs v The Queen (1987) 163 CLR 447 remains the foundational authority on this point. The High Court held that the inclusion of multiple categories of penetration within a single offence carries no implication that each category is equally heinous; seriousness is assessed across a spectrum anchored to the worst possible case of the offence.
  • Earlier NSW decisions suggesting digital penetration is "likely" to be less serious were not overruled outright, but the Court made clear that no such proposition has the status of a sentencing canon.
  • Where separate offences occur on different occasions and cause distinct harm to the complainant, a sentencing court must take care to ensure that concurrent sentencing arrangements do not obscure the true extent of an offender's criminality, consistent with Pearce v The Queen (1998) 194 CLR 610.
  • On a successful Crown appeal, the double jeopardy principle applies, meaning the resentenced term will generally fall toward the lower end of the range that would otherwise be appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61, 61H, 61I, 61L, 562I(1), 562(1)
- Criminal Procedure Act 1986 (NSW): s 166

Cases
- House v The Queen (1936) 55 CLR 499
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Fernando [2002] NSWCCA 28
- Regina v Gebrail (NSW CCA, 18 November 1994, unreported)
- Regina v Santos Da Silva (NSW CCA, 30 November 1995, unreported)
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Allpass (1994) 72 A Crim R 561
- R v Davis [1999] NSWCCA 15
- R v Hallocoglu (1992) 29 NSWLR 78
- R v Hiron [2007] NSWCCA 336
- R v Jeffries [2008] NSWCCA 144
- R v Johnson [2004] NSWCCA 140
- R v McNaughton [2006] NSWCCA 242
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v Ponfield (1999) 48 NSWLR 327
- R v Simpson (2001) 53 NSWLR 704
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168