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Court of Criminal Appeal 26 November 2013

Opacic v R

[2013] NSWCCA 294

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL INDECENT ASSAULT ERROR NOT MADE OUT ASSERTED MANIFEST EXCESS INDECENT ASSAULT SERIOUS

Citation: Opacic v R [2013] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 26 November 2013
Judge(s): Macfarlan JA, Latham J, R A Hulme J (judgment of R A Hulme J)

Background

The appellant had pleaded guilty in the District Court to two offences arising from a single incident on the night of 21 December 2010. He impersonated an undercover police officer to coerce a sex worker into his vehicle in Darlinghurst, then drove her to an isolated car park in Hillsdale, approximately 10 kilometres away, where he indecently assaulted her by touching her breast and forcing her hand onto his exposed penis. The complainant, a young Scottish woman on a working holiday visa, was told she faced fines and deportation. She fled the vehicle when she realised her door was unlocked.

The District Court sentenced the appellant to 2 years 9 months for the aggravated impersonation offence and 2 years 6 months for the indecent assault, accumulated by 6 months, producing a total effective sentence of 3 years with a minimum custodial component of 1 year 9 months. The appellant applied to the Court of Criminal Appeal for leave to appeal, contending the sentencing judge had inadequately characterised the seriousness of the offences and that the sentences were manifestly excessive.

  • Whether the sentencing judge failed to adequately characterise the seriousness of the two offences before imposing sentence
  • Whether the individual sentences and the total effective sentence were manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing judge had addressed the seriousness of the offences, albeit succinctly, following submissions and discussion at the hearing. The real question raised by the facts was whether the offences were serious enough to warrant full-time custody, and the judge's treatment of that question disclosed no identifiable error.

On the manifest excess ground, the Court noted that the aggravated impersonation offence was a relatively new provision, making statistical comparison with other sentences of limited assistance. Turning to the indecent assault, the Court accepted that the physical acts involved may have been less severe than in some comparable cases, but emphasised the aggravating circumstances: the complainant had been lured into a vehicle under false pretences, driven to an isolated location at night, and subjected to the assault while visibly frightened. The Court also noted the premeditated nature of the impersonation, observing that the appellant had driven past the complainant approximately four times before initiating contact, and had maintained the pretence of being a police officer during subsequent recorded telephone conversations weeks later.

The Court found that the sentences, both individually and in combination, were not manifestly excessive. The substantial concurrency built into the structure of the sentences, together with the finding of special circumstances reducing the non-parole periods, meant the overall sentencing outcome was within range. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's characterisation of the offences; a succinct treatment of seriousness following submissions and discussion is not, of itself, a ground for appellate intervention.
  • Where an offence is newly enacted and relatively uncommon, statistical comparison with sentences imposed in other cases provides limited assistance to an appellate court assessing manifest excess.
  • An indecent assault that involves comparatively restrained physical conduct may nonetheless attract a substantial sentence where the surrounding circumstances, including deception, isolation, and exploitation of the complainant's vulnerability, significantly increase objective seriousness.
  • The Court of Criminal Appeal confirmed that deliberate, premeditated conduct, maintained over a period of weeks, properly negates any submission that an offence was impulsive, a factor relevant to the assessment of moral culpability on sentence.
  • Upholding the total effective sentence, the Court treated the substantial concurrency of the two sentences, combined with the special circumstances finding under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as part of the overall sentencing structure rather than indicators of inadequacy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L (indecent assault), 546D(2) (aggravated impersonation of a police officer)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Police Act 1900 (NSW)
- Police Amendment (Miscellaneous) Act 2006 (NSW)

Cases:
- Belghar v R [2013] NSWCCA 245
- BT v R [2012] NSWCCA 267
- Corby v R [2010] NSWCCA 146
- House v The King (1936) 55 CLR 499
- Huntington v R [2007] NSWCCA 196
- Jiang v R [2010] NSWCCA 277
- Lipchin v R [2013] NSWCCA 77
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Hibberd [2009] NSWCCA 20
- R v McEvoy [2010] NSWCCA 110
- Speechley v R [2012] NSWCCA 130
- Zreika v R [2012] NSWCCA 44