AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
29
Court of Criminal Appeal 14 July 2010

Corby v R

[2010] NSWCCA 146

Sexual offences
CRIMINAL LAW SENTENCE PLEAS OF GUILTY INDECENT ASSAULT BY 39 YEAR OLD MALE ON 14 YEAR OLD GIRL

Citation: Corby v R [2010] NSWCCA 146
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2010
Judge(s): Beazley JA, Kirby J, Johnson J

Background

The applicant, a 39-year-old man, pleaded guilty in the Dubbo District Court to four offences committed against a 14-year-old girl in early 2009. The victim had limited intellectual capacity and attended a special-needs class at her local high school. The applicant had known the victim's family for several years and was a friend of her father.

The most serious offence (under s 61M(2) of the Crimes Act 1900) involved the applicant kissing the victim on the lips and cuddling her at his home after driving her there during her school lunch break. The three remaining offences (under s 61N(1)) involved the applicant sending multimedia text messages depicting images of his own erect penis to the victim's mobile phone on three separate occasions in January 2009. The applicant had given the victim that phone as a Christmas gift.

At the original sentencing hearing, the District Court imposed nine-month fixed concurrent terms for each s 61N(1) offence and a sentence of 18 months' non-parole period plus an 18-month balance of term for the s 61M(2) offence. The total effective sentence was three and a half years with a two-year non-parole period. The applicant sought leave to appeal on the basis that those sentences were excessive.

  • Whether the sentencing judge committed an error of law by failing to properly assess the objective seriousness of each offence before applying the standard non-parole period framework.
  • Whether the applicant's honest but unreasonable belief that the victim was over 16 years of age was a relevant mitigating factor in sentencing.
  • Whether the applicant's limited cognitive capacity and limited social skills were properly weighed as subjective circumstances.
  • What sentences were warranted in law after a proper assessment of the objective seriousness of each offence and the applicant's subjective circumstances.
  • How the principles of totality, concurrence, and accumulation applied to the four offences sentenced together.

Decision

The Court of Criminal Appeal, with Johnson J delivering the principal judgment (Beazley JA and Kirby J agreeing), found that error was established. The sentencing judge had failed to engage in a proper assessment of the objective seriousness of each offence before arriving at the sentences imposed. This failure constituted legal error that warranted intervention.

On the question of objective seriousness, the Court accepted that the s 61M(2) indecent assault offence, while serious, fell below the mid-range of offending of that type. The physical contact involved kissing on the lips and cuddling rather than more invasive physical acts. The three s 61N(1) offences, involving transmission of indecent images by text message, were also assessed below mid-range, though the Court noted the offensive nature of sending unsolicited images of that kind to a 14-year-old child with limited intellectual capacity.

The Court took into account the applicant's subjective circumstances, including his own limited cognitive capacity and social skills, his guilty pleas, and the fact that he held an honest but unreasonable belief about the victim's age. These factors collectively warranted lesser sentences than those originally imposed. The Court also noted that the applicant's limited intellectual functioning was relevant both to the assessment of moral culpability and to the prospects of rehabilitation with appropriate support.

On questions of structure, the Court ordered that the three s 61N(1) sentences run concurrently with each other, given they involved related conduct over a short period. Partial accumulation of four months was applied to the s 61M(2) sentence to reflect that the indecent assault was temporally removed from the text message offences and involved direct physical contact with the victim.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed and original sentences quashed.
  • For the s 61N(1) offence committed on 26 January 2009: fixed term of three months' imprisonment commencing 10 March 2009 and concluding 9 June 2009.
  • For the s 61N(1) offence committed on 27 January 2009: four months and two weeks' imprisonment commencing 10 March 2009 and concluding 23 July 2009.
  • For the s 61N(1) offence committed on 30 January 2009: fixed term of six months' imprisonment commencing 10 March 2009 and expiring 9 September 2009.
  • For the s 61M(2) offence: non-parole period of 13 months and two weeks commencing 10 July 2009 and concluding 23 August 2010, with a balance of term of 13 months and two weeks commencing 24 August 2010 and concluding 7 October 2011.
  • Order made under s 50 of the Crimes (Sentencing Procedure) Act 1999 directing the applicant's release on parole on 23 August 2010.

Key Takeaways

  • A sentencing court's failure to engage in a genuine assessment of the objective seriousness of each offence before applying the standard non-parole period framework constitutes legal error, sufficient to ground a successful sentence appeal.
  • The Court of Criminal Appeal confirmed that an honest but unreasonable belief by an offender that the victim was over the age of consent is a relevant subjective consideration in sentencing, though it does not excuse the offending.
  • Limited cognitive capacity and impaired social skills in an offender are relevant to the assessment of moral culpability and may reduce the weight given to general deterrence as a sentencing objective.
  • Where related offences involve repetition of similar conduct over a short period, concurrent sentences may be appropriate; partial accumulation becomes relevant where a further offence is temporally distinct and involves a qualitatively different form of offending.
  • Transmitting unsolicited images of an explicit nature to a child via mobile phone constitutes a distinct category of indecency offending, assessed here on its own facts below mid-range given the specific circumstances of the offender and the nature of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Criminal Appeal Act 1912 (NSW)

Cases:
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Hoadley (NSWCCA, 14 September 1990)
- R v Duffy [1999] NSWCCA 321
- R v McEvoy [2010] NSWCCA 110
- Dunn v R [2010] NSWCCA 128
- Hristovski v R [2010] NSWCCA 129
- R v Sellars [2010] NSWCCA 133
- Phan v R [2010] NSWCCA 8
- Porter v R [2008] NSWCCA 145
- Nguyen v R [2007] NSWCCA 14
- R v XX [2009] NSWCCA 115
- Maldonado v R [2009] NSWCCA 189
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- R v Dagwell [2006] NSWCCA 98
- Hudson v R [2008] NSWCCA 90
- R v PGM [2008] NSWCCA 172; 187 A Crim R 152
- Kenny v R [2010] NSWCCA 6
- R v Barrass [2005] NSWCCA 131
- Director of Public Prosecutions v Eades [2009] NSWSC 1352
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Cage [2006] NSWCCA 304