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36
Court of Criminal Appeal 17 March 2009

Clarke v R

[2009] NSWCCA 49

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITH A CHILD CIRCUMSTANCES OF AGGRAVATION CHILD UNDER AUTHORITY OF OFFENDER

Citation: Clarke v R [2009] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 17 March 2009
Judges: McClellan CJ at CL, James J, Adams J

Background

The appellant pleaded guilty in the District Court to three offences of sexual intercourse with a child in circumstances of aggravation under the Crimes Act 1900. The victim was his step-daughter, who was in his care after her mother left the family home. The offending began shortly after the complainant turned thirteen and continued over an extended period, resulting in the birth of two children. The complainant was sixteen at the time of sentencing.

The sentencing judge (Conlon DCJ) described the offending as falling slightly above the mid-range of objective seriousness. The appellant received concurrent sentences of nine years (non-parole period six years) on two counts under s 66C(2), and a partially concurrent sentence of seven years (non-parole period four years) on a third count under s 66C(4), producing an aggregate sentence of eleven years with a non-parole period of eight years.

The sentencing judge found special circumstances on the basis that the appellant, then aged 41, would be serving a custodial sentence for the first time. The judge also mistakenly identified the maximum penalty for the s 66C(4) offence as fourteen years, when the correct maximum is twelve years.

  • Whether the sentencing judge's adjustment for special circumstances was appropriate, or whether the resulting non-parole period was inadequately extended
  • Whether the misidentification of the maximum penalty for the s 66C(4) offence infected the sentence imposed for that count, requiring intervention on appeal
  • Whether a first custodial sentence alone is capable of constituting "special circumstances" justifying a departure from the standard non-parole period ratio

Decision

On the special circumstances ground, McClellan CJ at CL found that the sentencing judge's adjustment, though modest, was deliberate and within the proper exercise of his discretion. The Court reiterated that any adjustment to the statutory non-parole period ratio is essentially a discretionary matter, and appellate intervention is only warranted where the resulting non-parole period is manifestly inadequate or manifestly excessive. Neither condition was established here.

The Court expressed reservations about whether a first custodial sentence, standing alone, is a sufficient basis for a finding of special circumstances. McClellan CJ at CL noted that many offenders will face custody for the first time, and that repeat offenders may in some cases have a greater need for extended parole supervision. The Court declined to resolve this question definitively, treating the point as doubtful rather than settling it.

On the maximum penalty error, the Court accepted that the judge had incorrectly stated fourteen years rather than twelve years as the maximum for the s 66C(4) offence. However, the Court found that even accounting for the lower correct maximum, the sentence of seven years with a four-year non-parole period was not excessive in light of the circumstances, which included the appellant fathering a second child through continuing unprotected intercourse with his step-daughter.

The Court also noted that the sentencing judge imposed wholly concurrent sentences for the first two counts, which were separate serious offences. The Court observed that identifiable terms for each offence would ordinarily be warranted, but did not alter the overall result. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that adjustments for special circumstances involve substantial discretion, and appellate courts should intervene only where the resulting non-parole period is manifestly inadequate or manifestly excessive.
  • Doubt was expressed about whether the mere fact of a first custodial sentence constitutes special circumstances in its own right, with the Court noting this is a common occurrence and that repeat offenders may sometimes need greater post-release supervision.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, when sentencing for multiple offences, the statutory ratio between the non-parole period and the balance of a sentence applies to each individual count rather than mandating a fixed relationship across the aggregate sentence.
  • A sentencing error in misstating the applicable maximum penalty does not automatically require intervention on appeal; the Court will assess whether the sentence actually imposed was excessive by reference to the correct maximum.
  • In dismissing the appeal, the Court reinforced that the criminality of continuing sexual offending that results in a second pregnancy can be assessed as more serious than earlier offending, even where the applicable maximum penalty for the later offence is lower.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Clissold [2002] NSWCCA 356
- R v Cook [1999] NSWCCA 234
- R v Cramp [2004] NSWCA 264
- R v Fidow [2004] NSWCCA 172
- R v Ibrahim [2005] NSWCCA 43
- R v Kama (2000) 110 A Crim R 47
- R v Kaliti [2001] NSWCCA 268
- R v Simpson (1992) 61 A Crim R 58
- R v Swan [2005] NSWCCA 252