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Court of Criminal Appeal 16 September 2009

McCartney v R

[2009] NSWCCA 244

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE LATE PLEA OF GUILTY PAROLE PERIOD

Citation: McCartney v R [2009] NSWCCA 244
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2009
Judge(s): Spigelman CJ, McClellan CJ at CL, Grove J

Background

The applicant, a 22-year-old carpenter with no prior convictions, pleaded guilty in the Wagga Wagga District Court to sexual intercourse without consent, knowing the complainant was not consenting. The offence occurred in December 2007 at his parents' home near Moama, New South Wales, after the applicant and the complainant had been drinking at a hotel in Echuca. Despite the complainant explicitly telling the applicant on multiple occasions that she would not sleep with him, the applicant proceeded to have sexual intercourse with her. He desisted when she began to cry.

The sentencing judge, Goldring DCJ, imposed a total term of two years and six months imprisonment, comprised of a non-parole period of one year and three months and a balance of term of one year and three months. The standard non-parole period for the offence is seven years, and the maximum penalty is fourteen years imprisonment. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the head sentence of two years and six months was manifestly excessive given the circumstances of the offence
  • Whether the sentencing judge failed to adequately account for the applicant's level of intoxication as a mitigating factor
  • Whether the sentencing judge placed excessive weight on the victim impact statement in declining to suspend the sentence
  • Whether the sentencing judge failed to give sufficient weight to general deterrence and community protection considerations, in particular the applicant's youth and recent serious illness

Decision

Ground 1: Manifest excess. The Court of Criminal Appeal found no error in the sentence. Grove J observed that the contrast between the sentence imposed (two years and six months) and both the maximum penalty (fourteen years) and the standard non-parole period (seven years) made it obvious that the sentencing judge had assessed the applicant's criminality as falling in the very low range of seriousness. The court noted that the applicant had not entered his guilty plea at the earliest opportunity, and no complaint was made about the approximately 16.6% discount applied to reflect its utilitarian value.

Ground 2: Intoxication. The court rejected the argument that the sentencing judge had failed to account for the applicant's intoxication. The judge had expressly found that both parties were affected by alcohol, but there was no evidence before him as to the degree of the applicant's intoxication. Grove J noted that the applicant had been able to drive his utility vehicle after the hire car dropped them off, and that the applicant's own acknowledgment that alcohol affected his judgment "only stated the obvious" and did not, in the circumstances, amount to a matter of mitigation.

Ground 3: Victim impact statement. The applicant argued that the victim impact statement did not comply with the relevant regulation and that the sentencing judge gave it excessive weight in refusing to suspend the sentence. The court found no error in the account the judge gave of the statement's contents. The victim impact statement had been tendered without objection, and the court held the judge's reliance on it was not improper.

Ground 4: General deterrence. The applicant contended that the sentencing judge placed too much weight on general deterrence and not enough on his youth and recent illness. The court was unpersuaded, noting that the applicant had trade qualifications and held a supervisory position, which bore on the assessment of his maturity. The Court concluded that the sentence imposed lay within the lowest echelon of the available range for this serious offence and that no lesser sentence should have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence of two years and six months for sexual intercourse without consent, against a standard non-parole period of seven years, was held to reflect an obvious assessment of the offence as falling within the very low range of culpability, and was upheld as not manifestly excessive.
  • Where a victim impact statement is tendered at sentence without objection, a sentencing court does not err by taking its contents into account, even if the statement did not strictly comply with the relevant procedural regulation.
  • An offender's self-reported acknowledgment that alcohol affected his judgment does not automatically constitute a mitigating factor, particularly where the evidence does not establish the actual degree of intoxication and the offender retained sufficient capacity to drive a vehicle.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that general deterrence is a weighty sentencing consideration for offences of sexual intercourse without consent, regardless of the other favourable subjective circumstances available to the offender.
  • Where an offender holds trade qualifications and occupies a supervisory position, a sentencing court may reasonably take those factors into account when assessing maturity, limiting the weight given to youth as a mitigating consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Regulation, reg 10(2)
- Criminal Appeal Act (NSW), s 63

Cases:
- Olbrich v The Queen (1999) 199 CLR 270
- R v Slack [2004] NSWCCA 128
- R v Thomas [2007] NSWCCA 269