Citation: Doe v Regina [2013] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 8 November 2013
Judge(s): Hoeben CJ at CL, Johnson J, Bellew J (delivering the principal judgment)
Background
The applicant was convicted by jury of four counts of sexual intercourse without consent and one count of assault with an act of indecency, all arising from a single prolonged attack on a lone woman in the early hours of 31 January 2004. The offending involved digital penetration, anal intercourse, penile/vaginal intercourse, and a further act of digital penetration, carried out with significant force and causing the victim physical injuries. On 13 April 2007, the sentencing judge imposed an overall term of 11 years imprisonment, comprising a non-parole period of 8 years and an additional term of 3 years, with all sentences to be served concurrently.
Following the dismissal of his conviction appeal in 2008, the applicant took no further steps until late 2012, when he received legal advice that there was "likely merit" in a sentence appeal on the basis of a so-called "Muldrock error." This refers to the High Court's 2011 decision in Muldrock v R, which clarified that sentencing judges should not treat the standard non-parole period as a fixed benchmark or starting point but rather as one of two legislative guideposts. A notice of application for leave to appeal against sentence was not filed until July 2013, prompting the need for a substantial extension of time.
The Crown opposed the extension. The delay between the original sentence and the application was approximately six years.
Legal Issues
- Whether the Court should grant an extension of time in which the applicant could seek leave to appeal against his sentence, given the substantial delay.
- Whether the sentencing judge committed a "Muldrock error" by placing undue emphasis on the standard non-parole period.
- Whether offending involving digital penetration should, as a matter of principle, be treated as less serious than other forms of non-consensual sexual intercourse.
Decision
Bellew J (with whom Hoeben CJ at CL and Johnson J agreed) acknowledged that the sentencing judge's remarks did disclose a Muldrock error. The judge had assessed counts 1, 6, and 8 as falling in the mid-range of objective seriousness and had explicitly equated that assessment with the standard non-parole period of 7 years, which Muldrock subsequently identified as the wrong approach. This established a formal error in the sentencing process, providing a basis for the Court to re-examine the overall sentence.
On the question of digital penetration, the Court rejected the proposition that such offending is inherently less serious than penile penetration. Bellew J endorsed the analysis in R v AJP [2004] NSWCCA 434, explaining that digital penetration can cause significant physical injury, involves a comparable breach of bodily integrity, and must be assessed on its own facts rather than by reference to a hierarchy of penetrative acts. The injuries sustained by the victim in this case illustrated that point directly.
Despite identifying the Muldrock error, the Court declined to grant the extension of time. Counsel for the applicant expressly conceded during the hearing that the overall sentence of 11 years was within the proper range of sentencing discretion. That concession was significant. The Court found that none of the matters raised, including statistical and comparative sentencing material (which the Court noted carries inherently limited weight), demonstrated that the sentence resulted in substantial injustice or that any other sentence was warranted in law. The Court also noted that the applicant had benefited from having all sentences run concurrently, and that some partial accumulation would in fact have been justifiable.
Orders Made
- The application for extension of time is dismissed.
Key Takeaways
- In dismissing the application, the Court of Criminal Appeal confirmed that the mere identification of a Muldrock error does not automatically warrant an extension of time or a reduced sentence; the applicant must also demonstrate that the overall sentence resulted in substantial injustice.
- A concession by the applicant's own counsel that the total sentence fell within the proper range of sentencing discretion weighs heavily against the grant of leave and any appellate intervention.
- Digital penetration without consent is not to be treated as a less serious category of sexual offending than other forms of penetration; its gravity depends on the circumstances of each case, including the degree of force used and any injury caused.
- Statistical and comparative sentencing materials carry limited utility in sentence appeals, given that comparing individual sentences is inherently problematic, a principle the Court reaffirmed by reference to both High Court and Court of Criminal Appeal authority.
- Where all sentences are ordered to run concurrently, an applicant may derive a significant benefit that a court will take into account when assessing whether the overall outcome caused any injustice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), including s 61I (sexual intercourse without consent, maximum 14 years, standard non-parole period 7 years) and s 61L (assault with act of indecency, maximum 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules
Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Abdul v R [2013] NSWCCA 247
- Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Vandeventer v R [2013] NSWCCA 33
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
- Han v R [2009] NSWCCA 300
- Zreika v R [2012] NSWCCA 44
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- MH v R [2011] NSWCCA 230
- R v King [2009] NSWCCA 117
- R v O [2005] NSWCCA 327