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Court of Criminal Appeal 7 May 2010

R v Lee

[2010] NSWCCA 88

Sexual offences
CRIMINAL LAW

Citation: R v Lee [2010] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 7 May 2010
Judge(s): McClellan CJ at CL; Simpson J; Hidden J

Background

The respondent, a 25-year-old man, pleaded guilty in the District Court to a series of serious offences involving child pornography and sexual intercourse with a minor. Police discovered over 83,000 image files and 344 multimedia files on his computer equipment, amassed over approximately six to seven years. He also admitted to a sexual relationship with a 13-to-14-year-old girl, which included supply of alcohol and the recording of sexual activity.

The sentencing judge, Goldring DCJ, imposed terms of imprisonment for the pornography possession offences but placed the respondent on a three-year good behaviour bond in respect of the sexual intercourse offences (counts 3 to 8), with a condition of counselling. The Crown appealed, contending the sentences were manifestly inadequate and that the sentencing judge gave excessive weight to the respondent's subjective circumstances.

The appeal was a Crown appeal, meaning the prosecution sought to have the sentences increased. The respondent had by the time of the appeal already served a period of full-time custody, undertaken private psychological counselling, and registered with the Parole Service for a sex offender programme.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the child pornography and sexual intercourse offences
  • Whether the sentencing judge gave too much weight to the respondent's subjective circumstances at the expense of general deterrence
  • Whether the sentences imposed were manifestly inadequate, particularly the good behaviour bonds for the sexual intercourse offences

Decision

The Court of Criminal Appeal, by unanimous agreement, dismissed the Crown appeal. McClellan CJ at CL (with Simpson J and Hidden J agreeing) acknowledged the serious nature of the offences but found that the sentencing judge had not fallen into error of the kind required to justify appellate intervention under the principles in House v The King.

On the question of general deterrence, the court accepted that this is an important sentencing consideration for both child pornography and sexual offences against minors. However, the court found that the respondent's documented emotional immaturity, assessed as having a notional psychological age of 15 years at the time of offending, distinguished his case from that of an ordinary adult offender. This reduced, though did not eliminate, the weight properly given to personal and general deterrence.

The court placed considerable weight on the respondent's genuine remorse, his good prospects for rehabilitation, his moderate-to-low assessed risk of reoffending, and the fact that the period of full-time custody he had already served was particularly arduous given his age, personality, and the nature of his offences. The court noted that returning him to custody would interrupt meaningful rehabilitation progress he had made since release.

The Court acknowledged that a sentence of imprisonment would ordinarily be expected for the sexual relationship offences, and indicated that view directly. Despite this, it concluded the combination of circumstances made the case sufficiently unusual that intervention was not warranted. The appeal was dismissed.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts will only intervene in Crown appeals where a sentencing error is established; a sentence with which an appellate court might disagree does not automatically warrant interference.
  • A respondent's psychological and psychosexual immaturity, supported by expert evidence, can legitimately reduce the weight given to general and personal deterrence, even where the respondent is an adult at law.
  • Sufficient evidence of genuine remorse, active engagement with rehabilitation, and good prospects for reform can, in combination, support a sentencing outcome below what might ordinarily be expected for serious sexual offences against children.
  • The onerous nature of custody for a particular offender, arising from personal characteristics and the nature of the offending, is a factor a sentencing court may take into account when assessing the totality of punishment already suffered.
  • Placing an offender on a good behaviour bond with counselling conditions, rather than imposing a further custodial term, may be upheld on appeal where the sentencing judge's reasoning discloses no identifiable legal error and the subjective factors are compelling.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.19(1)(a)
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3), 66C(4), 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- R v Booth [2009] NSWCCA 89
- R v JW [2010] NSWCCA 49
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- SKA v R [2009] NSWCCA 186