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Court of Criminal Appeal 7 December 2010

Sharma v R

[2010] NSWCCA 338

Sexual offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE

Citation: Sharma v R [2010] NSWCCA 338
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2010
Judges: McClellan CJ at CL, McCallum J, RA Hulme J

Background

The applicant, a bus driver, pleaded guilty on the day his trial was to commence to one count of indecent assault, with a second count of indecent assault taken into account on a Form 1 (a procedure by which additional offences are acknowledged at sentencing without a separate conviction being recorded). Both offences arose from the same incident involving a 20-year-old woman with a moderate intellectual disability. The applicant had driven the complainant past her destination, parked the bus, locked the doors, and subjected her to a prolonged series of sexual acts she repeatedly resisted and refused.

The sentencing judge in the District Court imposed a non-parole period of two years, with a balance of term of one year, four months and twenty-four days. A 15% discount was applied for the guilty plea, and a finding of special circumstances reduced the non-parole period to approximately 60% of the total sentence.

The applicant sought leave to appeal against that sentence on multiple grounds, including that the sentence was manifestly excessive, that a psychiatric report obtained after sentencing should be admitted as fresh evidence, and that insufficient weight was given to the effect of the sentence on his family and to his prior good character.

  • Whether a psychiatric report obtained after sentencing could be admitted as fresh evidence before the Court of Criminal Appeal
  • Whether the sentencing judge's assessment that the offence fell "well above the mid range of objective seriousness" was legally correct
  • Whether the overall sentence was manifestly excessive having regard to objective and subjective factors
  • Whether the sentencing judge gave sufficient weight to the impact of imprisonment on the applicant's wife and children
  • Whether the sentencing judge adequately considered alternatives to full-time custody and the applicant's prior good character

Decision

Fresh evidence. The Court rejected the application to tender a post-sentence psychiatric report from a consultant psychiatrist. The applicant had disclosed symptoms of depression and suicidal ideation to the author of his pre-sentence report, and that material had been placed before the sentencing judge. The applicant had also been advised of his right to seek psychiatric assessment before sentencing but chose not to pursue it. Because the opportunity to obtain and tender such evidence had existed, the report did not satisfy the principles governing admission of fresh evidence on appeal.

Assessment of objective seriousness. The sentencing judge used language appropriate to offences carrying a standard non-parole period, describing the offence as falling "well above the mid range of objective seriousness." The Court observed this framing was technically inapt because the offence did not carry a standard non-parole period, and noted that such language risks contravening the sentencing approach required by Markarian, which emphasises that sentencing is a single integrated exercise rather than a two-stage process. Despite this, the Court was satisfied the offence was plainly serious, and that when the Form 1 matter was also considered, a sentence toward the upper end of the maximum was appropriate absent compelling subjective factors.

Subjective factors and alternatives to custody. The Court found no error in the sentencing judge's treatment of the applicant's subjective circumstances. The impact of the sentence on the applicant's family was not sufficient to justify a reduced sentence. The sentencing judge had expressly turned her mind to alternatives to full-time custody and was correct to conclude none were available. The applicant's prior good character was held to carry little weight given the nature of the offences.

Overall outcome. Leave to appeal was granted, but the appeal was dismissed. The sentence was found to fall entirely within the sentencing judge's discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a post-sentence psychiatric report will not qualify as fresh evidence where the applicant had a clear opportunity to obtain and tender such a report before the sentencing court and chose not to do so.
  • Using the "above mid-range of objective seriousness" framework is appropriate only for offences that carry a standard non-parole period. Applying that language to other offences risks breaching the Markarian principle, which requires sentencing to be a single, holistic exercise rather than a two-stage calculation.
  • In dismissing the appeal, the Court held that the cumulative weight of the offending conduct, including the additional matter on Form 1, justified a sentence toward the upper end of the statutory maximum even where objective seriousness had been assessed using technically imprecise language.
  • The effect of imprisonment on an offender's family is not, without exceptional circumstances, a basis for imposing a lesser sentence.
  • Prior good character carries reduced mitigating weight where the offending is of a serious sexual nature; no error was established in the sentencing judge's decision to accord it limited significance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L (indecent assault, maximum penalty five years imprisonment)

Cases
- Iglesias v R (2006) NSWCCA 261
- Springer v R [2007] NSWCCA 289; 117 A Crim R 13
- Markarian v The Queen (2005) 228 CLR 357