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37
Court of Criminal Appeal 21 November 2012

R v GWM

[2012] NSWCCA 240

Sexual offences
CRIMINAL LAW SENTENCE CROWN APPEAL AGGRAVATED SEXUAL ASSAULT OFFENDER 27 YEAR OLD UNCLE OF 11

Citation: R v GWM [2012] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 21 November 2012
Judges: McClellan CJ at CL, Johnson J, Bellew J

Background

The respondent, a 27-year-old man, pleaded guilty to aggravated sexual assault contrary to s.61J(1) of the Crimes Act 1900 after committing penile/vaginal intercourse upon his 11-year-old niece while she slept in her own bed. The offence occurred on 1 September 2011 at the home where the respondent had been living for several months. The victim resisted and asked him to stop; he did not.

The respondent told police he had consumed large quantities of cask wine and cannabis on the day of the offence and had no recollection of what occurred. He initially denied the allegations but pleaded guilty after DNA evidence confirmed the assault. He had been in custody continuously from the date of his arrest.

At the Bathurst District Court on 26 April 2012, the respondent was sentenced to a non-parole period of two years and eight months, with a balance of term of two years and seven months, producing a total head sentence of approximately five years and three months. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge had made several identifiable errors.

  • Whether the sentencing judge erred in assessing the objective gravity of the offence
  • Whether the sentencing judge erred in the treatment of voluntary or self-induced intoxication as a mitigating factor
  • Whether the sentencing judge erred in determining the non-parole period, including by finding "special circumstances" without adequate justification
  • Whether the sentence, taken as a whole, was manifestly inadequate
  • What principles govern the relevance of self-induced intoxication to sentencing for sexual assault and other crimes of violence
  • How courts should approach a submission that serious offending was "out of character"

Decision

The Court of Criminal Appeal allowed the appeal, finding both patent and latent errors in the original sentencing remarks. Johnson J (with whom McClellan CJ at CL and Bellew J agreed) identified that the sentencing judge had understated the objective gravity of the offence. The offence involved penile/vaginal intercourse upon an 11-year-old child, committed in her own home by a family member in a position of trust, with active resistance from the victim. Those features placed the conduct towards the higher end of the range of seriousness.

On intoxication, the Court confirmed and elaborated on the principle that voluntary or self-induced intoxication is not a mitigating factor in sentencing for sexual assault or crimes of violence. A person who deliberately becomes heavily intoxicated and then commits a serious violent or sexual offence cannot rely on that intoxication to reduce the weight of their moral culpability. The sentencing judge had not properly applied this principle. The Court also addressed the "out of character" submission: while prior good character carries some weight, it must not be allowed to significantly moderate the objective seriousness of a grave offence, particularly where the offender had a known and prolonged history of heavy substance abuse.

Regarding the non-parole period, the Court found that the original non-parole period of two years and eight months was grossly disproportionate to the head sentence and to the objective gravity of the offending. A finding of "special circumstances" permitting a reduction in the statutory ratio must be purposeful. Here, the original reduction went well beyond what was justified. The Court accepted that a finding of special circumstances was still appropriate, supported by psychiatric and psychological evidence before the appeal court, because an extended parole period would facilitate rehabilitation and supervision upon the respondent's return to the community.

On resentencing, the Court determined that a head sentence of 10 years before applying the 25 per cent guilty plea discount was appropriate, producing a sentence of seven years and six months. A non-parole period of four years and 10 months was fixed, with the balance of term running to 1 March 2019.

Orders Made

  • Crown appeal allowed
  • Sentence imposed on 26 April 2012 in the District Court quashed
  • Respondent resentenced to imprisonment comprising a non-parole period of four years and 10 months commencing 2 September 2011 and expiring 1 July 2016, with a balance of term of two years and eight months commencing 2 July 2016 and expiring 1 March 2019
  • Recommendation confirmed to the Department of Corrective Services that the respondent receive appropriate counselling and treatment for drug and alcohol addiction, and for any diagnosed psychological or psychiatric illnesses, both during the sentence and while on parole

Key Takeaways

  • Voluntary or self-induced intoxication does not reduce an offender's moral culpability for sexual assault or other crimes of violence; the Court confirmed that deliberately becoming intoxicated and then committing such an offence cannot operate as mitigation.
  • A finding of "special circumstances" justifying a reduction in the standard non-parole period ratio must be purposeful and grounded in identifiable rehabilitative or supervisory needs; a reduction that lacks clear justification will constitute error on appeal.
  • Where an offender contends that serious offending was "out of character", that submission carries limited weight when the offender has a lengthy, known history of substance abuse that directly contributed to the offending.
  • The objective gravity of aggravated sexual assault upon a young child by a family member in a position of trust, accompanied by active resistance from the victim, places the conduct towards the higher end of the sentencing range, and the standard non-parole period of 10 years remains a significant guidepost under Muldrock v The Queen.
  • In Crown appeals where patent and latent errors are both established, the Court of Criminal Appeal will resentence the offender afresh, applying the full range of relevant sentencing principles rather than merely adjusting the original sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s.5D
- Crimes Act 1900 (NSW), s.61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.44
- Crimes (Administration of Sentence) Regulation 2008 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Corby v R [2010] NSWCCA 146
- R v Speechley [2012] NSWCCA 130
- R v Hamieh [2010] NSWCCA 189
- Zreika v R [2012] NSWCCA 44
- R v PGM [2008] NSWCCA 172
- R v KNL [2005] NSWCCA 260; 154 A Crim R 268
- R v Oloitoa [2007] NSWCCA 177
- RR v R [2011] NSWCCA 235
- Waters v R [2007] NSWCCA 219
- R v Mitchell [2007] NSWCCA 296
- BP v R [2010] NSWCCA 159; 201 A Crim R 279
- R v Bourke [2010] NSWCCA 22; 199 A Crim R 38
- Mendes v R [2012] NSWCCA 103
- Director of Public Prosecutions v G [2002] VSCA 6
- Hasan v R [2010] VSCA 352; 31 VR 28
- R v Bradley (1980) 2 Cr App R (S) 12
- R v Kaliti [2001] NSWCCA 268
- R v Fidow [2004] NSWCCA 172
- Collier v R [2012] NSWCCA 213