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Court of Criminal Appeal 10 July 2012

BT v R

[2012] NSWCCA 128

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL ASSAULT OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: BT v R [2012] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 10 July 2012
Judge(s): McClellan CJ at CL, Johnson J, Adamson J (all agreeing)

Background

The applicant, a 16-year-old juvenile offender held at the Frank Baxter Juvenile Correctional Centre at Kariong, pleaded guilty to three serious sexual offences committed against a fellow detainee over two consecutive evenings in March 2009. The offences included aggravated indecent assault, aggravated sexual intercourse inflicting actual bodily harm, and sexual intercourse without consent. The victim had been placed in the same room as the applicant and a co-accused due to overcrowding at the facility.

The applicant had a troubled background. He had been under the care of the Department of Community Services since the age of six, and was abandoned by his mother at ten years of age. He had a prior criminal record involving violence and property offences, but no prior sexual offences.

At sentence in June 2010, the applicant received a total effective sentence of ten years with a five-year non-parole period. He sought leave to appeal on the grounds that the sentence for the most serious count was manifestly excessive and that the overall sentence was excessive.

  • Whether the eight-year term imposed for aggravated sexual intercourse inflicting actual bodily harm (count 2) was manifestly excessive
  • Whether the applicant's mental illness had been inadequately taken into account at sentencing
  • Whether the total effective sentence of ten years was excessive given the principles of concurrency, accumulation, and totality

Decision

The Court of Criminal Appeal rejected both grounds of appeal. On the first ground, Adamson J (with whom McClellan CJ at CL and Johnson J agreed) held that the eight-year term for count 2 was neither unreasonable nor plainly unjust. The relationship between the non-parole period and the balance of the term for that count was to be understood by reference to the total effective sentence, and the non-parole period was not manifestly excessive when viewed in that context.

On the mental illness argument, the Court noted that the applicant's counsel had expressly conceded at the original sentencing hearing that there was no causal connection between the applicant's mental health condition and the offending. The Court expressed concern about the significant shift in submissions between the sentencing hearing and the appeal, reiterating that the Court of Criminal Appeal is a court of error, not a forum for recasting a case. While the Court nonetheless considered the submissions, it found no demonstrated error, noting that the applicant had not given evidence at the sentence hearing, which affected the weight attributable to the clinical history recorded in the Justice Health report.

On the totality ground, the Court found the degree of accumulation of sentences to be within the sentencing judge's discretion and appropriate in the circumstances. The offences on the second evening were distinct from those on the first, involving fresh and unprecedented acts of sexual violence against the same victim. The overall sentence was proportionate to the total criminality involved.

The Court added remarks about the institutional context. It observed that neither the applicant nor his co-accused could be absolved of criminal responsibility by reason of the circumstances created by the Department's accommodation arrangements. However, the Court noted that authorities controlling juvenile detention centres carry particular obligations under the Children (Detention Centres) Act 1987 to give paramount consideration to the welfare and interests of persons in their custody, and that overcrowding in such centres can produce conditions inimical to both justice and inmate welfare.

Orders Made

  • Leave to appeal granted, but the appeal dismissed.

Key Takeaways

  • Standard non-parole periods do not apply to offenders who were under 18 years of age at the time of the offence, pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Challenging the sentence on a single count in isolation from a multi-count sentencing exercise carries an inherent risk of artificiality, given that the sentencing judge will have applied principles of concurrency, accumulation, and totality across all counts together.
  • The Court of Criminal Appeal confirmed its role as a court of error in sentencing appeals: an appeal is not an opportunity to advance arguments materially different from those put to the sentencing judge.
  • Where a mental illness argument is expressly abandoned before the sentencing court, reviving it on appeal will receive close scrutiny, particularly where the offender did not give evidence at the sentence hearing and the clinical material is internally inconsistent.
  • The Children (Detention Centres) Act 1987 imposes an obligation on detention authorities to give paramount consideration to the welfare of juveniles in custody, and overcrowding that creates conditions enabling serious offending was identified by the Court as a matter of concern.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61JA, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)
- Children (Detention Centres) Act 1987 (NSW), s 4

Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 124
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Hemsley [2004] NSWCCA 228
- R v Wilson [2005] NSWCCA 219
- R v Wright (1997) 93 A Crim R 48
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Zreika v R [2012] NSWCCA 44
- R v Thalari [2009] NSWCCA 170; 75 NSWLR 307