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Court of Criminal Appeal 27 February 2009

Glover v R

[2009] NSWCCA 48

Also reported as 193 A Crim R 292
Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING ACTUAL BODILY HARM INFLICTED

Citation: Glover v R [2009] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 27 February 2009
Judge(s): Buddin J (leading judgment), Grove J, Price J

Background

The applicant, a young man aged 18 at the time of the offence, pleaded guilty in the District Court to a single count of aggravated sexual intercourse without consent. The circumstance of aggravation was the infliction of actual bodily harm on the victim, a 16-year-old girl who was attacked without warning while walking alone at night in Coffs Harbour. The applicant punched her, dragged her to a nearby building, made repeated threats to kill her, and sexually assaulted her for approximately five to ten minutes before fleeing when he heard a siren.

The victim sustained bruising to her eye, grazing and contusions to her temple, and grazes to her knees and back. She was also noted to be very shaken following the attack.

At sentencing in the District Court, the applicant received a non-parole period of 10 years with a total sentence of 15 years imprisonment, commencing from the date of his arrest. The applicant sought leave to appeal, contending the sentence was manifestly excessive and that the offence had been wrongly placed in the worst category.

  • Whether the offence fell into the worst category of aggravated sexual assault, justifying a sentence approaching the 20-year maximum
  • Whether the sentence of 15 years (with a 10-year non-parole period) was manifestly excessive, having regard to the applicant's plea of guilty and subjective circumstances
  • Whether a finding of special circumstances was warranted to allow for an extended parole period

Decision

The Court of Criminal Appeal found that the sentence imposed by Finnane DCJ was manifestly excessive. While the offending was serious and sat above the midpoint of the range for offences of this kind, the Court held it did not represent the worst category of the offence. Buddin J noted that the sentencing judge appeared to have started from a point only around 16 months below the statutory maximum of 20 years, which was difficult to reconcile with the overall circumstances.

The Court gave significant weight to the applicant's subjective background, which was described as extremely dysfunctional. His mother died when he was eight, his father was imprisoned after a violent criminal act, and the applicant was placed in a series of foster homes where he suffered further abuse. He began drinking at 11, left school during Year 7, and had barely any literacy. By the time of sentencing he was 21 and showed genuine signs of maturing and accepting responsibility for his offending.

Grove J added that it was notable, if not surprising, that an 18-year-old serving his first term of imprisonment had received the longest recorded sentence in available sentencing statistics for this category of offence. The Court agreed that the standard non-parole period of 10 years remained a relevant reference point or benchmark, but that a departure from it was justified by the guilty plea and the applicant's subjective circumstances.

The Court also found that special circumstances existed, warranting a longer parole period to allow the applicant extended supervision and support upon release. The same proportion between the non-parole period and overall term used by the sentencing judge was maintained in the new sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In substitution: a non-parole period of 8 years commencing 3 December 2006, with a total term of 12 years commencing 3 December 2006; non-parole period to expire 2 December 2014; total term to expire 2 December 2018

Key Takeaways

  • A sentence of 15 years for aggravated sexual assault, where the offence did not fall into the worst category and the offender had pleaded guilty with strong subjective factors in his favour, was found to be manifestly excessive.
  • The standard non-parole period under the Crimes Act 1900 operates as a reference point or benchmark rather than a default, and departure from it is appropriate where a guilty plea and significant subjective circumstances are established (following R v Way (2004) 60 NSWLR 168).
  • Placing an offence near the statutory maximum requires a sentencing court to be satisfied the offending genuinely approaches the most serious instances of the offence; the Court of Criminal Appeal was not so satisfied here.
  • A chronic adjustment disorder, severe childhood trauma, time spent in foster care, and evidence of genuine maturation were all factors the Court accepted as relevant to the exercise of sentencing discretion.
  • A finding of special circumstances can be made for a young first-time prisoner to ensure adequate supervision during a longer parole period, particularly where post-release support is available and likely to assist rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(2) (aggravated sexual intercourse without consent)

Cases:
- R v Way (2004) 60 NSWLR 168
- Boney v R [2008] NSWCCA 165
- R v AEM (Snr), KEM and MM [2002] NSWCCA 58
- R v Twala (unreported, 4 November 1994, NSWCCA)
- Veen v The Queen (No 2) (1988) 164 CLR 465