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Court of Criminal Appeal 21 March 2013

Dawson v R

[2013] NSWCCA 61

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ERROR CONCEDED APPLICANT TO BE RE SENTENCED PRINCIPAL OF TOTALITY

Citation: Dawson v R [2013] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 21 March 2013
Judges: Price J, McCallum J, Schmidt J

Background

The applicant, a man aged 55 at the time of sentencing, had pleaded guilty to five offences against his niece: one count of aggravated indecent assault and four counts of sexual intercourse without consent. The offences occurred while he was living with the victim and her family as the de facto partner of her mother. He received a 25% discount on his sentence for his early guilty plea.

In November 2011, Neilson J sentenced the applicant in the District Court to a total of 9 years imprisonment, with a non-parole period of 6 years and 6 months. The sentencing judge made a finding of special circumstances (a finding that justifies departing from the standard ratio between the non-parole period and the balance of term), but the Crown conceded on appeal that his Honour did not give effect to that finding in the sentences ultimately imposed.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to act on his own finding of special circumstances, failed to apply the totality principle (the principle that the overall sentence should not be disproportionate to the totality of the offending), and gave insufficient weight to the applicant's significant intellectual disabilities beyond the issues of contrition and remorse.

  • Whether the sentencing judge erred by failing to give effect to his own finding of special circumstances
  • Whether the sentencing judge failed to apply the totality principle in constructing the aggregate sentence
  • Whether insufficient weight was given to the applicant's intellectual disabilities as a mitigating factor beyond its relevance to contrition and remorse

Decision

The Crown conceded the first ground, accepting that Neilson J had made a finding of special circumstances but had not translated that finding into a reduced non-parole period relative to the total term. The Court of Criminal Appeal accepted this concession and proceeded to resentence the applicant.

On the totality principle, the Court was not persuaded that the overall sentence was excessive. Schmidt J noted that individual sentences were imposed with considerable leniency, including making the sentences for two counts entirely concurrent, and that the total sentence of 9 years appropriately reflected the cumulative gravity of five separate offences committed against a vulnerable victim in her own home.

On the question of intellectual disability, the Court found no error in the weight given to that factor by the sentencing judge. The applicant's disabilities were documented in neuropsychological reports, but the Court was satisfied that his Honour had considered them properly. The argument that they warranted greater mitigation beyond the context of contrition and remorse was not accepted.

In resentencing, Schmidt J concluded that the overall non-parole period should be reduced by 6 months to correct the error on the special circumstances ground, while leaving the total sentence of 9 years undisturbed. The non-parole periods for counts 4 and 5 were each reduced from 5 years to 4 years and 6 months to achieve this result.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence upheld
  • Original sentence quashed
  • Applicant resentenced as follows:
  • Count 1: non-parole period of 2 years from 6 September 2011, expiring 5 September 2013; balance of term of 1 year expiring 5 September 2014
  • Count 2: non-parole period of 3 years from 6 March 2012, expiring 5 March 2015; balance of term of 2 years expiring 5 March 2017
  • Count 3: non-parole period of 3 years from 6 September 2012, expiring 5 September 2015; balance of term of 2 years expiring 5 September 2017
  • Count 4: non-parole period of 4 years and 6 months from 6 March 2013, expiring 5 September 2017; balance of term of 3 years expiring 5 September 2020
  • Count 5: non-parole period of 4 years and 6 months from 6 March 2013, expiring 5 September 2017; balance of term of 3 years expiring 5 September 2020
  • Earliest date of eligibility for parole: 5 September 2017

Key Takeaways

  • A sentencing judge who makes a finding of special circumstances must give that finding practical effect in the sentence structure; failing to do so constitutes a sentencing error that will warrant intervention on appeal.
  • The totality principle requires courts to assess whether the overall sentence is proportionate to the totality of the offending, not merely whether individual sentences are appropriate in isolation. Here, the Court of Criminal Appeal found no breach of that principle where individual sentences had already been constructed with considerable leniency.
  • Intellectual disability can be a relevant mitigating factor in sentencing, but its weight depends on the circumstances. The Court found no error in the sentencing judge's treatment of that factor where the disability's relevance to contrition and remorse had been considered.
  • Correcting a special circumstances error does not automatically lead to a reduction in the overall head sentence. The Court here reduced only the non-parole period, leaving the total term of 9 years intact.
  • In applying Muldrock v The Queen (2011) 244 CLR 120, the Court confirmed that standard non-parole periods remain a relevant reference point in sentencing for serious sexual offences, without being treated as a statutory minimum or default.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120