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24
Court of Criminal Appeal 8 October 2010

R v Daley

[2010] NSWCCA 223

Sexual offences
CRIMINAL LAW CROWN APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER YOUNG PRISON INMATE VULNERABLE WHETHER NON WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Daley [2010] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 8 October 2010
Judges: Hodgson JA, Price J, Fullerton J

Background

The respondent was a prisoner serving a sentence at Kirkconnell Correctional Facility when, in February 2008, he sexually assaulted a 19-year-old fellow inmate in their shared cell. The respondent was 37 at the time. He had previously been convicted of a similar offence against another inmate in 2005, for which he was already serving a sentence that included a non-parole period extending to October 2011.

The respondent pleaded guilty to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. A more serious charge of sexual intercourse without consent in circumstances of aggravation (s 61J) was not pressed, and the Crown accepted the lesser plea in full satisfaction of the indictment. The District Court sentenced the respondent to a term with a non-parole period of 3 years 6 months, commencing 29 November 2009, which extended his effective custodial time by only approximately 1 year and 7 months.

The Crown appealed on the basis that the sentence was manifestly inadequate. The central dispute on appeal concerned the sentencing judge's findings about aggravating factors, the weight given to deterrence, and crucially, the date from which the new sentence was ordered to commence.

  • Whether actual or threatened violence was an element of the offence that could be taken into account as an aggravating factor at sentencing
  • Whether the young victim's status as a prison inmate made him particularly vulnerable for the purposes of sentencing
  • Whether the sentencing judge could permissibly reach a non-conclusive finding on the respondent's future prospects of rehabilitation
  • Whether the duration of the offence was a relevant sentencing consideration
  • Whether the structure of the sentence, including the accumulation date chosen, properly reflected the overall criminality of the conduct
  • Whether the sentence was manifestly inadequate

Decision

Price J (with whom Hodgson JA and Fullerton J agreed) found that the sentencing judge had erred in the commencement date of the new sentence, and that this error had produced an effective non-parole period of only approximately 1 year and 7 months. The Court held this was not merely lenient but manifestly inadequate, given the need for both specific and general deterrence in cases of sexual assault within correctional facilities.

The Court accepted that the victim's youth and status as a recently arrived, low-security prisoner made him vulnerable. The Court also found that the offence involved actual threats of violence, noting the respondent had threatened the victim with a Breville sandwich press and warned him against speaking out. These were properly treated as aggravating features, even though the more serious aggravated charge had not been pursued.

On rehabilitation, the Court found it was permissible for a sentencing judge to reach a non-conclusive finding about prospects of rehabilitation where the evidence did not support a firm positive conclusion. The duration of the offence was also a relevant consideration going to the gravity of the conduct.

Price J concluded that the effective non-parole period should be increased to 2 years and 7 months from the original sentence's commencement, and that this did not constitute a crushing sentence when viewed in the context of the total time to be served. The Court exercised its discretion to intervene, noting that s 68A of the Crimes (Appeal and Review) Act 2001 applied, meaning the double jeopardy principle was not a factor in the resentencing.

Orders Made

  • The Crown appeal against sentence is upheld
  • The sentence imposed in the District Court on 28 April 2010 is quashed
  • The conviction is confirmed
  • The respondent is re-sentenced to 5 years imprisonment, comprising a non-parole period of 3 years 6 months commencing 18 November 2010 and expiring 17 May 2014, with a balance of term of 1 year 6 months expiring 17 November 2015
  • The earliest date of eligibility for release to parole is 17 May 2014

Key Takeaways

  • An effective non-parole period of approximately 1 year and 7 months for a prison rape offence committed by a repeat offender was found to be manifestly inadequate, not merely lenient, where the sentencing judge had failed to give sufficient weight to specific and general deterrence.
  • Threats of violence made during a sexual assault remain relevant aggravating factors at sentencing even where the Crown has accepted a plea to the non-aggravated offence, provided they do not result in a sentence that punishes the offender for an offence of which they were not convicted (consistent with the principle in R v De Simoni).
  • A prisoner's youth and recent arrival at a low-security facility are factors capable of supporting a finding of particular vulnerability as an aggravating circumstance.
  • Under s 68A of the Crimes (Appeal and Review) Act 2001, the Court of Criminal Appeal does not apply the double jeopardy principle when resentencing on a successful Crown appeal.
  • The principle against imposing a crushing sentence requires courts to consider whether a total sentence puts at risk the offender's incentive to rehabilitate, but this consideration does not prevent meaningful accumulation where deterrence and the seriousness of the offending demand it.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW) s 5D
- Crimes (Appeal and Review) Act 2001 (NSW) s 68A
- Crimes Act 1900 (NSW) ss 61I, 61J(2), 61J(2)(a), 61J(2)(b), 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 21A(2), 21A(2)(b), 21A(2)(i), 21A(4)

Cases:
- Doolan v R (2006) 160 A Crim R 54
- House v The Queen (1936) 55 CLR 499
- Malvaso v The Queen (1989) 168 CLR 227
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v AJP (2004) 150 A Crim R 575
- R v De Simoni (1981) 147 CLR 383
- R v Fernando (1992) 76 A Crim R 58
- R v Gebrail (CCA, 18 November 1994, unreported)
- R v Hibberd (2009) 194 A Crim R 1
- R v Johnson [2005] NSWCCA 186
- R v Johnson [2004] NSWCCA 140
- R v King [2009] NSWCCA 117
- R v Lardner (CCA, 10 September 1998, unreported)
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v Simpson (2001) 53 NSWLR 704
- R v Tadrosse (2006) 65 NSWLR 740
- R v Wickham [2004] NSWCCA 193
- RJS v R (1993) 31 NSWLR 649