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Court of Criminal Appeal 11 December 2009

Jalloh v R

[2009] NSWCCA 295

Sexual offences
CRIMINAL LAW SENTENCE TWO OFFENCES OF INDECENT ASSAULT VULNERABLE VICTIM STRONG SUBJECTIVE CASE TRAGIC FAMILY HISTORY

Citation: Jalloh v R [2009] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 11 December 2009
Judge(s): McClellan CJ at CL, Hidden J, Johnson J

Background

The appellant was a 22-year-old man born in Sierra Leone who had survived a rebel massacre that killed his parents and seven siblings when he was seven years old. He later migrated to Australia as a refugee and was assessed as having a mild intellectual disability, with his overall intellectual functioning at the 0.3rd percentile. He had a prior criminal history in New South Wales consisting of minor summary offences dealt with by fines, and had been serving a short custodial sentence for a separate matter at the time of sentencing.

In the early hours of 19 June 2008, the appellant encountered a young woman who had lost consciousness in a toilet cubicle at a Surry Hills hotel. She was heavily intoxicated and later found to have amphetamines in her system, the source of which was unknown and not attributed to the appellant. Over a period of approximately 90 minutes, while the victim drifted in and out of consciousness, the appellant twice sexually touched her without her consent, constituting two counts of indecent assault under s 61L of the Crimes Act 1900. The maximum penalty for each offence was five years' imprisonment.

The District Court sentenced the appellant to two partially accumulated terms, producing a total head sentence of three years with a non-parole period of 18 months. The appellant sought leave to appeal on the ground that the sentences were manifestly excessive, given the strength of his subjective circumstances.

  • Whether the sentences imposed were manifestly excessive, having regard to the appellant's compelling subjective circumstances, including his mild intellectual disability and traumatic history
  • Whether the sentencing judge gave adequate weight to the subjective case alongside the objective seriousness of the offences
  • Whether the degree of accumulation of the two sentences was appropriate

Decision

Johnson J, with whom McClellan CJ at CL agreed, upheld the sentences. His Honour noted that the sentencing judge had the benefit of detailed psychological and social work evidence and expressly acknowledged the appellant's extraordinary personal history. The sentencing judge had correctly applied the relevant principles, including those concerning the reduced moral culpability that may accompany intellectual disability, and had directed that the appellant receive therapeutic and literacy support upon release.

Johnson J emphasised that sentences must reflect the objective seriousness of the offending and bear reasonable proportionality to the circumstances of the crime, as required by s 3A(a) of the Crimes (Sentencing Procedure) Act 1999. He drew on established authority to warn that, while subjective considerations may be powerful and unusual, they must not cause inadequate weight to be given to the objective facts. The offences here were serious, committed against a vulnerable victim who was incapacitated and unable to resist, and were committed while the appellant was subject to conditional liberty.

The Court of Criminal Appeal held that the appellant had not demonstrated that the sentences were unreasonable or plainly unjust. As a court of error, it was not the tribunal's role to substitute its own view of the appropriate sentence, but rather to identify whether sentencing error had been established. No such error was found.

Hidden J agreed, though only after what he described as anxious consideration. His Honour acknowledged the power and unusual nature of the appellant's subjective case, but confirmed that the offences were grave given the distressing circumstances of their commission. On the accumulation question, Hidden J noted it would have been open to the sentencing judge to make the sentences wholly concurrent, but that no error in discretion had been demonstrated by the approach actually taken.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even a compelling and unusual subjective case cannot override the need for sentences to maintain reasonable proportionality to the objective seriousness of the offending.
  • A principle drawn from R v Rushby and R v Dodd was reaffirmed: attention to persuasive subjective considerations must not cause inadequate weight to be given to the objective circumstances of the crime.
  • Where a victim is incapacitated and unable to resist, the objective gravity of a sexual offence is heightened, and the sentencing court must reflect that gravity regardless of the offender's personal circumstances.
  • No error was established simply because an alternative sentencing approach, such as making terms wholly concurrent rather than partially accumulated, would also have been open to the sentencing judge.
  • The Court of Criminal Appeal reiterated its role as a court of error: the relevant question is not what sentence the appellate court would have imposed at first instance, but whether the sentence under review was unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L (indecent assault; maximum penalty five years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a) (purposes of sentencing, including proportionality)

Cases
- Markarian v The Queen [2005] 228 CLR 357
- R v Gent (2005) 162 A Crim R 29
- Edwards v R [2009] NSWCCA 199
- R v Scott [2005] NSWCCA 152
- R v Rushby [1977] 1 NSWLR 594
- R v Dodd (1991) 57 A Crim R 349