AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 22 August 2013

O'Brien v R

[2013] NSWCCA 197

Sexual offences
CRIMINAL LAW SENTENCING SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: O'Brien v R [2013] NSWCCA 197
Court: Court of Criminal Appeal, NSW
Date: 22 August 2013
Judge(s): Hidden J, Latham J, Adamson J (all agreeing)

Background

The applicant, a man aged approximately 23 to 24 at the time of the offending, was charged with four counts of unlawful sexual intercourse with a 14-year-old child, contrary to s 66C(3) of the Crimes Act 1900. The offending occurred between January and June 2011 in a small rural community where the applicant had known the victim and her family for several years. A separate Form 1 offence of digital penetration was also taken into account on sentencing.

The applicant pleaded guilty in the District Court on the eve of trial and was sentenced by Colefax DCJ on 21 February 2013. An aggregate sentence of three years and seven months was imposed, with a non-parole period of two years and two months, reflecting a 10% discount for the late guilty plea.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge had conflated the two-step process required before imposing imprisonment, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's language ("no other sentence is possible... no sentence other than a period of imprisonment is appropriate") disclosed an error by collapsing the two distinct steps mandated by s 5 of the Crimes (Sentencing Procedure) Act 1999 (the requirement first to consider whether imprisonment is appropriate, and second to consider whether that sentence should be suspended under s 12).
  • Whether the aggregate sentence of three years and seven months was manifestly excessive in all the circumstances.

Decision

Ground 1: Alleged conflation of the two-step process

Section 5 of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to consider, as a threshold question, whether any sentence other than imprisonment is appropriate. If imprisonment is warranted, the court must then separately consider, under s 12, whether that sentence ought to be suspended. The applicant argued that the sentencing judge's remarks merged these two steps into one.

The Court of Criminal Appeal rejected this ground. Reading the remarks on sentence as a whole, Adamson J was satisfied that the sentencing judge had in fact conducted the required two-step analysis. The language used, while potentially compressed, did not reveal any legal error in the approach taken.

Ground 2: Manifest excess

The Court found no error in the sentencing judge's assessment of objective seriousness. The offending was described as deliberate and premeditated, exploiting trust reposed in the applicant by the victim, her mother, and her grandparents. The applicant had used his good character and standing in the community to gain access to the victim. He also twice exposed her to the risk of pregnancy by not using contraception.

The Court noted that the Crown's submission at the sentencing hearing, to the effect that a suspended sentence was an available option, did not amount to a concession that suspension was warranted. Citing Postiglione v R, Adamson J confirmed that courts are not bound by such concessions and must impose sentences in accordance with the public interest. Adamson J also observed, without deciding the point, that s 21A(5A) of the Act arguably precluded the applicant's good character from being treated as a mitigating factor, given that it appeared to have facilitated the offending. However, as the sentencing judge had treated it in the applicant's favour and the provision had not been raised below, it was unnecessary to take the matter further.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A sentencing judge's language must be read in context and as a whole. Compressed or elliptical phrasing does not automatically establish that the mandatory two-step analysis under ss 5 and 12 of the Crimes (Sentencing Procedure) Act 1999 was conflated.
  • The Court of Criminal Appeal confirmed that a Crown submission acknowledging the availability of a suspended sentence does not bind the sentencing court. Courts retain independent responsibility for imposing sentences that accord with the public interest, as affirmed in Postiglione v R.
  • Under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, good character may not be treated as a mitigating factor where it was instrumental in facilitating the commission of the offences. The Court flagged this issue without resolving it, as it had not been raised at first instance.
  • Objective seriousness assessments will take into account factors such as premeditation, exploitation of trust relationships, and conduct that exposed a victim to additional risks beyond the primary offending.
  • Refusing leave to appeal, the Court of Criminal Appeal found that a sentence of three years and seven months (with a non-parole period of two years and two months) for four counts of child sexual offending under s 66C(3) was not manifestly excessive on these facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12, 12(1)(a), 21A(5A)

Cases
- Gommesen v R [2012] NSWCCA 226
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Zamagias [2002] NSWCCA 17
- Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10