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Court of Criminal Appeal 17 May 2012

GN v R

[2012] NSWCCA 96

Sexual offences
CRIMINAL LAW APPEAL ON SENTENCE STANDARD NON PAROLE PERIODS MULDROCK INTELLECTUAL IMPAIRMENT

Citation: GN v R [2012] NSWCCA 96
Court: Court of Criminal Appeal, NSW
Date: 17 May 2012
Judges: Basten JA; Blanch J; Beech-Jones J

Background

The applicant pleaded guilty to one count of aggravated sexual intercourse with a child under the age of 10 years, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The victim was his stepdaughter, aged nine years and four months at the time. The offence occurred on 4 December 2009 while the victim's mother was in hospital.

The applicant had two prior convictions for offences involving indecent conduct with young children, though on both prior occasions he received bonds rather than custodial sentences. Psychological evidence established that he was intellectually disabled, falling within the extremely low range on verbal ability testing. He had also suffered prolonged and severe sexual abuse throughout his own childhood.

In the District Court, Lakatos DCJ sentenced the applicant to a non-parole period of eight years with a balance of term of two years and eight months, after applying a 25 per cent discount for the guilty plea. The applicant sought leave to appeal, arguing the sentencing judge erred by following the approach required under R v Way, which the High Court had since overruled in Muldrock v The Queen.

  • Whether the sentencing judge fell into error by applying the R v Way methodology for standard non-parole periods, which was overruled by the High Court in Muldrock after the sentence was imposed
  • Whether, applying the correct Muldrock approach, a lesser sentence was warranted in law
  • Whether the applicant's intellectual disability and other personal circumstances warranted a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a balance of term exceeding one-third of the non-parole period

Decision

The Court unanimously accepted that the sentencing judge had erred by following R v Way, which required the standard non-parole period to serve as a "first port of call" in sentencing. The High Court in Muldrock rejected that approach, holding that the standard non-parole period is simply one of two legislative guideposts and is not to be treated as a starting point or default. Because the error tended to produce a higher sentence than would otherwise have been imposed, the Court found it material and proceeded to resentence.

Basten JA (with Blanch J agreeing) held that the appropriate non-parole period was six years rather than eight. His Honour emphasised the significant mitigating weight of the applicant's severe intellectual disability and his own prolonged childhood sexual victimisation, both of which reduced his moral culpability. At the same time, his Honour acknowledged the countervailing tension identified in Veen v The Queen [No 2]: a mental abnormality that reduces culpability may simultaneously increase the risk to the community, but cannot be used to impose a sentence more severe than the culpability alone would warrant.

On the question of special circumstances, Basten JA and Beech-Jones J reached different conclusions, with the majority view resulting in the Court setting a balance of term of three years. Basten JA found that special circumstances existed given the applicant's intellectual impairment, his lack of prior custodial experience, and the need for supervision and treatment on release. Beech-Jones J disagreed on this point, finding that the evidence did not establish that varying the statutory ratio would materially further the objectives of specific deterrence, rehabilitation, or denunciation in this case.

The majority orders of Basten JA and Blanch J prevailed. Leave to appeal was granted and the sentence was reduced, with a non-parole period of six years and a balance of term of three years replacing the original sentence.

Orders Made

  • Leave to appeal granted
  • Original sentence set aside
  • Non-parole period of six years imposed, dating from 8 December 2009 and expiring 7 December 2015
  • Balance of term of three years imposed, expiring 7 December 2018
  • Applicant eligible for release on parole on 8 December 2015

Key Takeaways

  • A sentencing judge who applied the R v Way methodology before Muldrock was decided made a legal error through no fault of their own, but the error remained material and warranted resentencing where it appeared to have produced a heavier sentence than the correct approach would have yielded.
  • Intellectual disability in a sexual offender operates as a double-edged factor at sentencing: it may diminish moral culpability, warranting a shorter sentence, but it may also indicate an elevated risk of reoffending, warranting community protection. Under Veen [No 2], risk to the community cannot be used to increase a sentence beyond what the offender's culpability alone justifies.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires more than identifying distinctive features of an offender's case. The question is whether those features specifically warrant a longer balance of term relative to the non-parole period, for example to facilitate a identified rehabilitation program or period of supervision.
  • Where the evidence does not establish that extending the balance of term would make an appreciable difference to rehabilitation or reoffending risk, a special circumstances finding is not warranted simply because the offender is intellectually impaired or has not previously served a custodial sentence. This was the view of Beech-Jones J, who would have dismissed the appeal on sentencing quantum.
  • The Court of Criminal Appeal confirmed that Muldrock applies to sentences under review on appeal even where the sentencing judge could not have known about it, provided the error was not immaterial to the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 28, 44, 54A; Division 1A, Part 4
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465
- Markarian v R [2005] HCA 25; 228 CLR 357
- Butler v R [2012] NSWCCA 23
- DPP (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Koloamatangi [2011] NSWCCA 288
- R v Engert (1995) 84 A Crim R 67
- R v Muldrock; Muldrock v R [2010] NSWCCA 106