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95
Court of Criminal Appeal 20 June 2014

Aslan v R

[2014] NSWCCA 114

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL SEVERITY PLEA OF GUILTY SEXUAL OFFENCES NO ERROR FOUND

Citation: Aslan v R [2014] NSWCCA 114
Court: Court of Criminal Appeal, NSW
Date: 20 June 2014
Judges: Simpson J (leading judgment, at [1]); Adams J (agreeing, at [55]); McCallum J (agreeing, at [56])

Background

The applicant pleaded guilty in the District Court to three counts of sexual intercourse without consent and one count of assault occasioning actual bodily harm, with four further sexual offences taken into account on a Form 1. All offences arose from a single, prolonged attack on a 35-year-old woman in the early hours of 4 June 2011, outside a church in Sydney. The applicant was identified through DNA evidence and had been on parole at the time of the offences.

Haesler DCJ sentenced the applicant under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), imposing a single aggregate sentence of nine years' imprisonment with a non-parole period of six years. The sentencing judge also specified indicative individual sentences for each count, as required by the legislation.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was too severe. He raised several grounds, including that the sentencing judge had mishandled evidence about an acquired brain injury, that the aggregate sentence was manifestly excessive, and that insufficient allowance was made for special circumstances requiring a longer supervised parole period.

  • Whether the sentencing judge erred in assessing the relevance and effect of the applicant's acquired brain injury on his moral culpability and prospects of rehabilitation
  • Whether the aggregate sentence of nine years was manifestly excessive having regard to the nature and number of offences
  • Whether the sentencing judge failed to give adequate weight to special circumstances, resulting in an insufficiently extended parole period for the applicant's rehabilitative needs

Decision

On the brain injury ground, Simpson J found no error in the sentencing judge's treatment of the medical evidence. The material before the court was complex and somewhat inconclusive as to the precise nature and extent of the applicant's brain damage. The sentencing judge had considered the evidence and was entitled to reach the conclusions he did, including finding that the brain injury did not significantly reduce the applicant's moral culpability for the offences.

On manifest excess, the Court rejected the contention that a starting point of 12 years (before discounts for the guilty plea and other factors) was outside the available range. The offences involved five separate instances of sexual intercourse without consent of an invasive and degrading nature, threats to kill, and a physical assault. Simpson J held that the seriousness and multiplicity of the offending placed the starting point firmly within the range open to the sentencing judge.

On special circumstances, the Court accepted that the sentencing judge had found special circumstances and had varied the statutory proportion accordingly, reducing the non-parole period by nine months from what it would otherwise have been. Simpson J considered this reduction not insignificant and noted that, upon release, the applicant would have three years of supervised parole available to him, together with access to pre-release sex offender programmes. The Court was satisfied this represented an adequate supervisory period and found no error.

All three grounds were rejected and the appeal was dismissed, with leave granted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's treatment of inconclusive medical evidence about an acquired brain injury; where such evidence does not clearly reduce an offender's moral culpability, a sentencing court is entitled to give it limited mitigating weight.
  • A starting point of 12 years' imprisonment for five completed sexual offences without consent, committed during a single sustained attack with threats to kill and a subsequent physical assault, was held to be well within the available sentencing range.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court imposing an aggregate sentence must specify the indicative individual sentences for each indictment count but is not required to specify how those sentences would have been accumulated or made concurrent.
  • The Court of Criminal Appeal confirmed that a finding of special circumstances does not require a reduction of any particular magnitude; the adequacy of the reduction depends on the circumstances, including the length and quality of the supervised parole period the offender will actually receive.
  • In dismissing the appeal, the Court emphasised that a non-parole period below six years for this series of offences would have been, at minimum, open to question.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, s 44(2), s 53A
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm), s 61I (sexual intercourse without consent), s 61L (indecent assault)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Engert v R (1995) 85 A Crim R 67
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383