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Court of Criminal Appeal 25 August 2009

Mottram v Regina

[2009] NSWCCA 210

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL ASSAULTS OCCURRING 20 30 YEARS BEFORE SENTENCES IMPOSED WHETHER NON (S6(3) CRIMINAL APPEAL ACT 1912).

Citation: Mottram v Regina [2009] NSWCCA 210
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2009
Judge(s): Macfarlan JA, Grove J, Hoeben J

Background

The appellant was the uncle of two victims, sisters, whom he sexually assaulted over a period spanning from approximately 1972 to 1985. The offences occurred in the Shoalhaven area when the victims were children, ranging in age from around six to twelve years old. The conduct included repeated attempted carnal knowledge and multiple acts of indecent assault against both girls.

In March 2008, the appellant was sentenced in the District Court by Garling DCJ after pleading guilty to six charges. All sentences were imposed concurrently, resulting in an overall term of five years and three months imprisonment, with a non-parole period of three years and three months. The offences themselves had occurred some twenty to thirty years before sentencing.

The appellant sought leave to appeal on the ground that the sentence was excessive. His central argument was that the non-parole period should have been adjusted downward to reflect the sentencing practices that applied at the time the offences were committed, rather than contemporary practices.

  • Whether the sentencing judge was required to apply the sentencing practices that were current at the time the historical offences occurred, particularly in setting the non-parole period.
  • Whether the non-parole period imposed was excessive having regard to those historical practices.
  • Whether, under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal was satisfied that some other, lesser sentence was warranted in law and should have been passed.

Decision

The Court of Criminal Appeal, with Hoeben J delivering the principal judgment and Macfarlan JA and Grove J agreeing, dismissed the appeal. The Court granted leave to appeal but found no basis to interfere with the sentence imposed below.

The Court examined the legal framework governing the sentencing of offenders for historical sexual offences, including the relevance of sentencing practices that prevailed at the time the offences were committed. This is an established area of law in NSW, with a line of earlier Court of Criminal Appeal decisions addressing when and how past practices may inform the non-parole period or overall sentence. The appellant argued that applying those earlier practices should have resulted in a lower non-parole period.

The Court was not persuaded that the non-parole period set by Garling DCJ was inconsistent with the applicable principles. Applying the test under section 6(3) of the Criminal Appeal Act 1912, as elaborated in cases such as R v Simpson and Baxter v R, the Court was not satisfied that a lesser sentence was "warranted in law." The section 6(3) threshold requires the appellate court to form a positive opinion that some other sentence should have been passed, not merely to identify a possible error and arithmetically adjust the result. No such opinion was formed here.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that granting leave to appeal does not automatically lead to a reduction in sentence; the appellate court must form a positive opinion under section 6(3) of the Criminal Appeal Act 1912 that some other sentence is warranted in law before it can intervene.
  • Under section 6(3), the phrase "warranted in law" encompasses the entire body of legal rules and sentencing principles, both statutory and at common law, as the appellate court re-exercises the sentencing discretion rather than simply reviewing the original judge's reasoning in isolation.
  • Where historical sexual offences are sentenced many years after they occurred, sentencing practices that applied at the time of the offences may be relevant, but their application does not automatically produce a lower non-parole period than that imposed under contemporary practice.
  • No error was established in the sentencing judge's approach that would have required the Court to substitute a different sentence.
  • A string of earlier Court of Criminal Appeal decisions, including AJB v R, Baxter v R, MJL v R, and others, formed the relevant jurisprudential backdrop for assessing the treatment of historical sexual offending cases in NSW.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32
- Baxter v R [2007] NSWCCA 237
- Bradbury v R [2008] NSWCCA 93
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- CPW v R [2009] NSWCCA 105
- Featherstone v R [2008] NSWCCA 71
- GRD v R [2009] NSWCCA 149
- MJL v R [2007] NSWCCA 261
- Pearce v The Queen [1998] 194 CLR 610
- PH v R [2009] NSWCCA 161
- R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534