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7
Court of Criminal Appeal 19 April 2013

ZZ v R

[2013] NSWCCA 83

Sexual offencesFraud & dishonesty
CRIMINAL LAW SENTENCE PLEAS OF GUILTY SEXUAL INTERCOURSE WITHOUT CONSENT INTOXICATED OFFENDER SIGNIFICANT INJURIES TO VICTIM

Citation: ZZ v R [2013] NSWCCA 83
Court: Court of Criminal Appeal, New South Wales
Date: 19 April 2013
Judges: Hoeben CJ at CL, Johnson J, Button J

Background

The applicant, referred to by pseudonym because of his assistance to authorities, pleaded guilty in the Sydney District Court to two sexual assault offences against his then-partner. Both parties had been drinking heavily and using cocaine on the night of 4 March 2010. The offences occurred after a period of consensual sexual activity and escalated into serious non-consensual acts committed with significant violence.

The victim suffered substantial physical injuries during the second offence, including a deep four-centimetre laceration to her forehead when her head was forced against bathroom tiles. Freeman DCJ sentenced the applicant in June 2011, imposing an aggregate head sentence of nine years and six months with a non-parole period of seven years. A combined 50 percent discount had been applied to reflect both the guilty pleas and the applicant's assistance to authorities.

The applicant sought leave to appeal the sentences for the two sexual offences only. No challenge was brought in relation to the separate dishonesty offence, which concerned the fraudulent acquisition of jewellery worth approximately $31,000.

  • Whether the sentencing judge erred in assessing the objective seriousness of Count 1 (sexual intercourse without consent under s 61I of the Crimes Act 1900)
  • Whether the sentencing judge erred in the approach taken to the applicable standard non-parole periods (SNPPs), following the High Court's decision in Muldrock v The Queen [2011] HCA 39
  • Whether the sentences for the sexual assault offences were manifestly excessive

Decision

Ground 1 (objective seriousness of Count 1): Johnson J found error in the sentencing judge's assessment of the objective seriousness of Count 1. The judge had treated that count as above the mid-range of objective seriousness, but the Court of Criminal Appeal considered that characterisation was not adequately supported having regard to the full circumstances and the relevant sentencing benchmarks.

Ground 2 (standard non-parole period methodology): The Court found that the sentencing judge had applied the pre-Muldrock approach from R v Way, treating the SNPP as a statutory benchmark to be used mechanically. Following the High Court's clarification in Muldrock, the SNPP is one of two equally important factors to be considered rather than a fixed reference point. This methodological error was established and justified intervention.

Ground 3 (manifest excess): Despite the errors, the Court did not find the sentences manifestly excessive in the sense of being unreasonable or plainly unjust. The offences were characterised as serious domestic violence offences involving significant physical harm to the victim. The Court acknowledged that the applicant's self-induced intoxication through alcohol and cocaine was a relevant consideration but did not diminish his moral culpability. Claims that the offending was out of character were given limited weight.

Applying s 6(3) of the Criminal Appeal Act 1912, the Court determined that lesser sentences were warranted as a consequence of the identified errors, though substantial custodial sentences remained appropriate. The Court reduced the sentences on both counts, noting that this course could not be characterised as mere tinkering.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence for the dishonesty offence confirmed
  • Sentences for Count 1 (s 61I) and Count 2 (s 61J) quashed and replaced as follows:
  • Count 1: Non-parole period of 3 years, 4 months and 2 weeks commencing 13 August 2011, expiring 26 December 2014; balance of term of 1 year, 1 month and 2 weeks expiring 9 February 2016
  • Count 2: Non-parole period of 4 years and 8 months commencing 13 August 2012, expiring 12 April 2017; balance of term of 2 years and 4 months expiring 12 August 2019
  • Earliest parole eligibility date: 12 April 2017
  • Applicant advised of the existence and potential application of the Crimes (High Risk Offenders) Act 2006

Key Takeaways

  • The Court of Criminal Appeal confirmed that applying the pre-Muldrock methodology from R v Way, by treating the standard non-parole period as a primary benchmark, constitutes error warranting appellate intervention.

  • A finding of sentencing error does not automatically produce a finding of manifest excess. The Court distinguished between error in method and a sentence that is unreasonable or plainly unjust, and both inquiries are conducted separately.

  • Self-induced intoxication through alcohol and drugs does not reduce an offender's moral culpability for serious sexual offences; in this decision, the applicant's combined use of alcohol and cocaine on the night of the offences was treated as a neutral or potentially aggravating circumstance rather than a mitigating one.

  • Where a sentence appeal reveals errors but the overall sentences remain substantially appropriate, the Court will limit its intervention to a reduction that remedies the identified errors without wholesale restructuring of the sentencing exercise.

  • The Crimes (High Risk Offenders) Act 2006 imposes an obligation on the Court to advise offenders sentenced for qualifying sexual offences of the Act's existence and potential application, as reflected in the orders made here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J, 61J(2)(a), 178BA(1), 178B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Morrison v R [2009] NSWCCA 211; 197 A Crim R 103
- R v Coleman (1990) 47 A Crim R 306
- Butler v R [2012] NSWCCA 23
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- R v Mendes [2012] NSWCCA 103
- Essex v R [2013] NSWCCA 11
- Truong v R [2013] NSWCCA 36
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- NM v R [2012] NSWCCA 215
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v GWM [2012] NSWCCA 240
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Zreika v R [2012] NSWCCA 44
- Markarian v The Queen (referenced in the judgment)