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Court of Criminal Appeal 4 March 2010

Mayall, David Graham v R

[2010] NSWCCA 37

Sexual offences
CRIMINAL LAW SENTENCE PAROLE PERIOD

Citation: Mayall, David Graham v R [2010] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 4 March 2010
Judge(s): James J, Howie J, Davies J

Background

The applicant pleaded guilty in the District Court to two counts of indecent assault of children under the age of ten years, contrary to s 61M(2) of the Crimes Act 1900. The offences involved the applicant touching two young girls, aged eight and nine, on their genitals on consecutive nights while staying at their mother's home. The standard non-parole period for this offence is eight years, against a maximum penalty of ten years imprisonment.

Finnane DCJ sentenced the applicant to a total term of seven years imprisonment with a non-parole period of four years. The applicant sought leave to appeal against that sentence on four grounds.

  • Whether the sentencing judge erred by failing to assess the objective seriousness of the offences
  • Whether the sentencing judge erred by failing to allow a discount for the early guilty plea and give reasons for not doing so
  • Whether the sentencing judge failed to find that the applicant had good prospects of rehabilitation
  • Whether the sentences were manifestly excessive

Decision

The Court of Criminal Appeal (Howie J, with James J and Davies J agreeing) found that the sentencing judge had made an error in applying the standard non-parole period. The judge had used the standard non-parole period as though it were for a single mid-range offence, then simply doubled it to account for the two offences, rather than first assessing the overall sentence warranted by the totality of the criminality and then determining an appropriate non-parole period.

Notwithstanding that error, the Court undertook a fresh assessment and concluded that no lesser sentence was warranted. The offences were assessed as mid-range in objective seriousness. The Court noted that comparing different types of child sexual offending is inherently difficult, and declined to adopt any rigid ranking of particular acts.

On the question of the guilty plea discount, the Court found the sentencing judge had implicitly declined to allow a significant discount, given that the applicant was essentially caught at the scene and had admitted to police the following day. The Court found this approach was open on the facts.

Rehabilitation prospects were considered poor. The pre-sentence and psychological reports both indicated the applicant lacked victim empathy, continued to blame the complainants for being in the bed, and showed little genuine remorse. The affidavit filed for the appeal added nothing materially different. The Court concluded that a total non-parole period of four years for two mid-range offences, with the benefit of the standard non-parole period framework, represented the minimum that could properly be imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge cannot simply use the standard non-parole period as a starting point and multiply it to account for multiple offences; the correct approach is to assess the overall sentence warranted and then set a non-parole period.
  • Despite identifying a methodological error in the sentencing judge's approach, the Court of Criminal Appeal declined to intervene where the resulting sentence was not, in substance, unjust or excessive.
  • A significant guilty plea discount is not automatically available where an offender is effectively caught in the circumstances and makes immediate admissions to police; the sentencing court has latitude to limit or decline such a discount on those facts.
  • Where pre-sentence and psychological reports both identify an absence of genuine remorse and a pattern of victim-blaming, a finding of poor rehabilitation prospects is well-founded and will be difficult to disturb on appeal.
  • In dismissing the appeal, the Court noted that sentencing statistics carry reduced weight in cases governed by a standard non-parole period, particularly where statistics suggest the standard non-parole period has routinely been underutilised.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)

Cases
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v Mills [2005] NSWCCA 175; 154 A Crim R 40
- R v King [2009] NSWCCA 117