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168
Court of Criminal Appeal 30 July 2010

BP v R

[2010] NSWCCA 159

Also reported as (2010) 201 A Crim R 379
Sexual offences
CRIMINAL LAW SENTENCE FOLLOWING TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT OFFENDER AGED 16 YEARS 11 MONTHS ERRONEOUS REGARD TO STANDARD NON PAROLE PERIOD

Citation: BP v R [2010] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2010
Judge(s): Hodgson JA; Johnson J; Rothman J

Background

The applicant, a 16-year-old (almost 17) male, was tried in the Port Macquarie District Court for aggravated sexual intercourse without consent and the alternative count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The jury acquitted him on the aggravated count but found him guilty on the alternative. The offence occurred in the early hours of 6 March 2008 in Kempsey, involving a 19-year-old female victim, in circumstances where both parties had been drinking heavily.

The sentencing judge imposed a total term of six years imprisonment, comprising a non-parole period of four years from 6 March 2008 and an additional term of two years. Because of the applicant's age, the court ordered that the sentence be served as a juvenile offender under the Children (Criminal Proceedings) Act 1987. The applicant was also a repeat juvenile sex offender, having been dealt with for an earlier sexual assault offence.

The applicant sought leave to appeal against the sentence, contending that the sentencing judge had made a number of errors, including giving erroneous regard to the standard non-parole period and misdescribing the sentence imposed for the earlier offence.

  • Whether the sentencing judge erred by applying the standard non-parole period to this offence
  • Whether the sentencing judge misdescribed the sentence previously imposed on the applicant for an earlier sexual assault, thereby distorting the weight given to his criminal history
  • The proper relevance of the applicant's youth and immaturity to the sentencing exercise, including whether youth diminishes culpability for retributive purposes
  • The proper relevance of intoxication to the sentencing exercise
  • Whether a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912
  • How courts should approach sentencing repeat juvenile sex offenders

Decision

The Court of Criminal Appeal granted leave to appeal and unanimously found that the sentencing judge had fallen into error. Two specific errors were identified: erroneous regard to the standard non-parole period and an inaccurate description of the sentence imposed for the applicant's earlier sexual assault. These errors infected the sentencing exercise and justified the Court intervening to substitute a lesser sentence.

On the question of youth, Hodgson JA made three significant observations that went beyond the majority analysis. First, he stressed that youth is not only relevant to rehabilitation over retribution; it may independently reduce culpability in the retributive sense where emotional immaturity or underdeveloped impulse control contributed to the offending. Second, he noted that emotional maturity continues to develop into the early to mid-twenties, meaning that the significance of youth does not end sharply at 18. Third, he cautioned against too readily discounting youth on the basis that an offence was serious or that the offender appeared to have acted as an adult.

Rothman J agreed with Johnson J's reasons but added a reminder that the principles in R v Fernando concerning Indigenous offenders are not confined to remote communities. They point to the systemic discrimination and disempowerment of Indigenous Australians wherever they may live, and a proper understanding of the causes of offending assists courts in fashioning sentences that achieve deterrence and rehabilitation. Rothman J also confirmed that the Children (Criminal Proceedings) Act 1987 establishes a distinct regime for minors, but that youth remaining outside that regime is still entitled to have immaturity weighed at sentence.

The Court ultimately substituted a reduced sentence. Hodgson JA, favouring a slightly shorter term than that proposed by Johnson J on account of the weight he attributed to the applicant's youth, proposed the orders that the full Court adopted.

Orders Made

  • Leave to appeal against sentence granted
  • Sentence imposed at the Port Macquarie District Court on 17 April 2009 quashed
  • Applicant sentenced to imprisonment comprising a non-parole period of three years commencing 6 March 2008 and expiring 5 March 2011, with a balance of term of two years commencing 6 March 2011 and expiring 5 March 2013
  • Earliest date of eligibility for release on parole: 5 March 2011

Key Takeaways

  • Erroneous application of the standard non-parole period, combined with a misdescription of a prior sentence, constituted identifiable errors that justified appellate intervention and re-sentencing under s 6(3) of the Criminal Appeal Act 1912.
  • Youth is relevant to sentencing not only because rehabilitation outweighs retribution for young offenders, but also because emotional immaturity and underdeveloped impulse control may reduce the offender's culpability in the retributive sense, particularly where no significant planning or mature decision-making is apparent.
  • The Court of Criminal Appeal cautioned against treating 18 as a hard boundary for the significance of youth; emotional maturity and impulse control may continue to develop into the early to mid-twenties, and this can remain a material sentencing factor.
  • Sentencing courts should not too readily dismiss an offender's youth simply because the offence was serious or appeared to involve adult-like behaviour; the nature of the offending must be examined for indicia of mature decision-making before that conclusion is reached.
  • The principles in R v Fernando concerning the circumstances of Indigenous offenders apply broadly and are not confined to remote communities; understanding the causes of criminal conduct informs the fashioning of appropriate sentences, though the criminal law is not a vehicle for the attainment of social justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)

Cases
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- TM v R [2008] NSWCCA 158
- R v Slade [2005] 2 NZLR 526
- R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Fernando (1992) 76 A Crim R 58
- R v JW [2010] NSWCCA 49
- MJ v R [2010] NSWCCA 52
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- SBF v R [2009] NSWCCA 231
- TG v R [2010] NSWCCA 28
- R v LNT [2005] NSWCCA 307
- Roper v Simmons 543 US 551 (2005)
- BP v R; SW v R [2006] NSWCCA 172