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14
Court of Criminal Appeal 29 August 2012

Stewart v R

[2012] NSWCCA 183

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Stewart v R [2012] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 29 August 2012
Judges: McClellan CJ at CL, Price J, Button J (all agreeing)

Background

The applicant was sentenced in the District Court at Lismore in December 2011 for one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The offence carried a maximum of 14 years' imprisonment and a standard non-parole period of 7 years.

The offending occurred in November 2010 during an evening at which both the applicant and the victim, who had recently ended their relationship and shared a young child, had been drinking. After the victim communicated to the applicant that their relationship was over, the applicant physically restrained her and digitally penetrated her while she actively resisted and said "No." The sentencing judge found the offence was an attempt to assert dominance over the victim following rejection. The applicant was also subject to suspended sentences from Queensland at the time.

The District Court imposed a head sentence of 4 years 6 months' imprisonment, with a non-parole period of 2 years 8 months, after applying a 25 per cent discount for an early guilty plea and finding special circumstances to reduce the statutory ratio. The applicant sought leave to appeal on several grounds, including alleged failures to properly assess objective seriousness and subjective features, and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to properly identify and assess the objective seriousness of the offence
  • Whether the sentencing judge failed to properly assess the applicant's subjective features, including his mental health, disadvantaged background, youth, and remorse
  • Whether the applicant's intoxication at the time of the offence was a relevant mitigating factor
  • Whether the sentence imposed was manifestly excessive

Decision

Button J (with whom McClellan CJ at CL and Price J agreed) dismissed each ground of appeal. The Court found no error in the sentencing judge's treatment of objective seriousness. The offence was characterised as a serious example of the relevant provision: the digital penetration was not fleeting, it was preceded by a physical assault, the victim made her lack of consent unambiguous throughout, and the offence was found to be motivated by a desire to dominate the victim following her rejection of the applicant.

On subjective features, the Court accepted that the applicant faced genuine mitigating circumstances, including his youth (aged 21 at the time), early guilty plea, public acceptance of responsibility, difficult upbringing, mental health difficulties, and the emotional context of the rejection. However, these factors had been taken into account in arriving at a head sentence that was already described as towards the top of the available range before the guilty plea discount was applied.

On the question of intoxication, the sentencing judge had acknowledged the applicant's alcohol and drug use but treated it as an explanation rather than an excuse. The Court of Criminal Appeal found no error in that approach.

The Court concluded that, while the head sentence of 4 years 6 months was stern, it was neither manifestly excessive in itself nor was the non-parole period of 2 years 8 months manifestly excessive. The combination of the serious nature of the offending, the dominance-motivated purpose the sentencing judge found, and the applicant's status as subject to suspended sentences all justified the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An offence of sexual penetration motivated by a desire to dominate the victim following rejection will, in the Court's assessment, very rarely be anything other than a serious offence within the relevant statutory provision.
  • Intoxication at the time of a sexual assault may properly be treated by a sentencing court as an explanation for the offending rather than as a mitigating factor reducing the sentence.
  • In dismissing the appeal, the Court confirmed that a combination of genuine subjective mitigating factors (youth, early plea, remorse, mental health difficulties, disadvantaged background) does not necessarily bring a sentence below the upper range where the objective circumstances are sufficiently serious.
  • No failure to assess objective seriousness was established where the sentencing judge expressly found the offence to be an exercise in dominance over the victim and assessed the physical and psychological circumstances of the offending in detail.
  • The Court's starting point of 6 years' imprisonment before applying the guilty plea discount reflected the cumulative weight of the objective gravity of the offending and the aggravating circumstance of the applicant's suspended sentences being operative at the time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Doolan v The Queen [2006] NSWCCA 29; (2006) 160 A Crim R 54
- King v R [2010] NSWCCA 33
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Coleman (1990) 47 A Crim R 306
- R v Cunningham [2006] NSWCCA 176
- R v Ehrlich [2012] NSWCCA 38
- R v Koloamatangi [2011] NSWCCA 288
- R v Muldrock; Muldrock v R [2012] NSWCCA 108
- Williams v R [2012] NSWCCA 172
- Yang v R [2012] NSWCCA 49
- Zreika v R [2012] NSWCCA 44