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Court of Criminal Appeal 1 March 2013

Leslie v R

[2013] NSWCCA 48

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCES WHETHER STANDARD NON PAROLE PERIOD ERRONEOUSLY APPLIED WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Leslie v R [2013] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 1 March 2013
Judge(s): McClellan CJ at CL; Latham J; Adamson J

Background

The applicant pleaded guilty to three counts of sexual offences against an eight-year-old child, committed on the night of 18 February 2010. The offences were attempted penile/vaginal sexual intercourse with a child under ten years (count 1), aggravated sexual intercourse by digital/vaginal penetration (count 2), and aggravated sexual intercourse by fellatio (count 3). Two additional offences (entering premises with intent and detaining for advantage) were taken into account on a Form 1 when sentencing for count 2.

The applicant was sentenced in the District Court to an overall term of 23 years and 6 months imprisonment with a total non-parole period of 16 years and 2 months. When combined with a pre-existing Local Court sentence, the overall custodial period became 24 years and 7 months with a non-parole period of 17 years and 3 months.

The applicant appealed to the Court of Criminal Appeal on two grounds: first, that the sentencing judge had wrongly applied a 15-year standard non-parole period to count 1 (which did not carry one), and second, that the sentences were manifestly excessive.

  • Whether the sentencing judge had erroneously treated a 15-year standard non-parole period as applicable to count 1 (attempted sexual intercourse with a child under ten, contrary to s 66B of the Crimes Act 1900), which carries a maximum of 25 years but no standard non-parole period
  • Whether the sentences imposed were, in all the circumstances, manifestly excessive

Decision

The Court upheld both grounds of appeal and unanimously quashed the original sentences.

On the first ground, the Court accepted that the sentencing judge had mistakenly proceeded on the basis that count 1 attracted a standard non-parole period of 15 years. Section 66B carries a maximum penalty of 25 years but no standard non-parole period. The Court was satisfied this error materially influenced the sentence imposed for that count, making it excessive.

On the second ground, the Court held that the applicant's youth was a significant mitigating factor that had not been adequately reflected in the original sentences. McClellan CJ at CL acknowledged that, absent the applicant's youth, sentences of the length imposed would not have been excessive given the gravity of the offences and the maximum penalties available (including life imprisonment for counts 2 and 3). However, the principle that sentences should not be "crushing" and should preserve meaningful opportunities for rehabilitation required the Court to intervene. The sentencing judge's finding of special circumstances was appropriate and was maintained, ensuring a longer supervisory period upon any eventual release to parole.

The Court re-sentenced the applicant to an overall term of 19 years imprisonment with a non-parole period of 13 years, setting the earliest possible release date at 8 March 2024.

Orders Made

  • Leave to appeal granted; the appeal upheld; all District Court sentences quashed
  • Count 1: fixed term of 10 years imprisonment commencing 8 March 2011
  • Count 3: non-parole period of 10 years commencing 8 March 2012, with a balance of term of 5 years
  • Count 2 (including Form 1 matters): non-parole period of 11 years commencing 8 March 2013, with a balance of term of 6 years expiring 7 March 2030
  • Total sentence: 19 years imprisonment with a non-parole period of 13 years; earliest parole eligibility date 8 March 2024

Key Takeaways

  • An error in applying a standard non-parole period to an offence that does not carry one is a legal error capable of vitiating a sentence, even where the overall sentencing exercise may otherwise have been within range.
  • The Court of Criminal Appeal confirmed that, for young offenders, the principle against crushing sentences and the importance of preserving prospects for rehabilitation are weighty considerations that can justify reducing sentences for even the most serious sexual offences against children.
  • Where a sentencing judge finds special circumstances, this finding can be preserved on appeal even where the sentences themselves are set aside, allowing for an extended period of supervision upon parole.
  • Counts 2 and 3 under s 66A(2) of the Crimes Act 1900 carry both a maximum penalty of life imprisonment and a standard non-parole period of 15 years; count 1 under s 66B carries a 25-year maximum but no standard non-parole period, and these distinctions must be correctly applied at sentencing.
  • In upholding the appeal, the Court did not characterise the original sentences as unreasonable absent the applicant's youth, indicating the threshold for intervention on manifest excess grounds in cases of this gravity is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 66A(2) (aggravated sexual intercourse with a child under 10), s 66B (attempted sexual intercourse with a child under 10), s 11(2) (aggravated enter premises with intent), s 86(1)(b) (detain for advantage)

Cases
- Muldrock v The Queen [2011] HCA 39
- R v Fernando (1992) 76 A Crim R 58
- AWKO v R [2010] NSWCCA 90
- Eedens v R [2009] NSWCCA 254
- Ingham v R [2011] NSWCCA 88
- JRM v R [2012] NSWCCA 112
- Kite v R [2009] NSWCCA 12
- MLP v R [2006] NSWCCA 271
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v King [2009] NSWCCA 117
- RJA v R [2008] NSWCCA 137
- RR v R [2011] NSWCCA 235