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Court of Criminal Appeal 21 July 2010

Dipangkear v Regina

[2010] NSWCCA 156

Sexual offences
CRIMINAL LAW SENTENCING PRINCIPLES SEXUAL ASSAULT QUESTIONS OF HARDSHIP TO A THIRD PARTY EXCEPTIONAL CIRCUMSTANCES MENTAL ILLNESS OF OFFENDER

Citation: Dipangkear v Regina [2010] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 21 July 2010
Judge(s): Hodgson JA, Whealy J, Buddin J

Background

The applicant pleaded guilty in the District Court of Sydney to one count of sexual intercourse without consent in circumstances of aggravation under s 61J(1) of the Crimes Act 1900, with a further offence of the same character taken into account on a Form 1. Both offences arose from a single attack on a 24-year-old woman in Waterloo in June 2008. The applicant, a stranger to the victim, followed her along Botany Road, struck her in the face with a closed fist, and then digitally penetrated her vagina and anus while she screamed and pleaded for him to stop.

Knight DCJ sentenced the applicant to four years and six months imprisonment, with a non-parole period of two years and three months, commencing 8 February 2009. The sentencing judge assessed the offending as somewhat below the mid-range for the offence, noting that digital penetration generally carries lesser criminality than penile penetration and that the physical injuries, while constituting actual bodily harm, were towards the lower end of that range.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had failed to give proper weight to two matters: the hardship his imprisonment caused his wife and then-unborn child, and his mental illness.

  • Whether the sentencing judge gave proper consideration to the hardship suffered by the applicant's wife and newborn child as a consequence of his full-time imprisonment
  • Whether the sentencing judge gave proper consideration to the applicant's mental illness, including a pre-existing low level of anxiety and depression and a subsequent reactive depression developed in custody

Decision

On the first ground, the Court examined what circumstances are required before hardship to a third party can operate as a significant mitigating factor. The Court confirmed that hardship to innocent family members is a relevant consideration, but that truly exceptional circumstances must exist before such hardship can substantially affect a sentence. On the facts, the applicant's wife faced real difficulties, including illness and the arrival of a newborn, but the Court found these circumstances did not reach the threshold of exceptionality that would warrant a reduced sentence.

On the second ground, the Court assessed two aspects of the applicant's mental health. First, his pre-existing low-level anxiety and depression, stemming from his wife's health difficulties and fertility treatment, was found to have played no significant role in the commission of the offence and could not meaningfully reduce his moral culpability. Second, the reactive depression he developed in custody arose directly from his own criminal conduct and attendant guilt, which the Court noted was a matter the sentencing judge had appropriately weighed.

The Court also addressed a submission that the Victorian Court of Appeal's decision in The Queen v Verdins [2007] VSCA 102 had expanded the ways mental illness may be taken into account at sentencing. Whealy J expressed doubt about that proposition but found it unnecessary to resolve the point, because the sentencing judge had committed no identifiable error on either mental illness issue in any event.

In dismissing the appeal, the Court observed that the sentence imposed was, on any view, a lenient one, and that this leniency itself demonstrated that the sentencing judge had properly engaged with the subjective matters raised.

Orders Made

  • Time extended to allow the application for leave to be made
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Hardship to innocent third parties, including a spouse and newborn child, is a relevant sentencing consideration but does not automatically reduce a sentence. Truly exceptional circumstances are required before such hardship carries significant mitigating weight.
  • A pre-existing mental health condition will not reduce moral culpability at sentencing unless it contributed meaningfully to the commission of the offence. A low-level anxiety disorder unconnected to the offending will not meet that threshold.
  • Reactive depression arising directly from an offender's own criminal conduct and the fact of imprisonment does not, without more, reduce the appropriateness of full-time custody or undermine the objectives of general and specific deterrence.
  • The Court of Criminal Appeal left open the question of whether Verdins has expanded the relevance of mental illness in NSW sentencing, finding the issue unnecessary to determine on the facts before it.
  • In dismissing the appeal, the Court noted that the overall leniency of the sentence reflected that the sentencing judge had genuinely engaged with and weighed the applicant's subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Drug Misuse and Trafficking Act 1988 (NSW)

Cases
- Clarke v Regina [2009] NSWCCA 13
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Cynthia Therese Edwards (1966) 90 A Crim R 510
- Lovell v Lovell (1950) 81 CLR 513
- R v Girard [2004] NSWCCA 170
- R v Hemsley [2004] NSWCCA
- R v Hinton (2002) 134 A Crim R 286
- R v Togias (2001) 127 A Crim R 23
- Wirth (1976) 14 SASR 291
- The Queen v Verdins [2007] VSCA 102