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Court of Criminal Appeal 25 July 2014

SM v R

[2014] NSWCCA 137

Sexual offences
CRIMINAL LAW SENTENCE APPEAL APPLICATION FOR LEAVE LEAVE GRANTED APPEAL DISMISSED

Citation: SM v R [2014] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 25 July 2014
Judges: Hoeben CJ at CL, Simpson J, Hall J

Background

The applicant, identified by the initials SM, pleaded guilty in the District Court to ten counts of historical sexual offending against his stepsister, committed between September 1977 and December 1983. The offences included multiple counts of assault female and act of indecency, two counts of carnal knowledge, and two counts of sexual assault. Four additional matters were taken into account on a Form 1. The offending began when the victim was five years old and the applicant was fourteen, and continued until the victim was eleven.

The District Court sentenced the applicant on 22 March 2013 to a total effective term of 7 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months. A 25 per cent discount was applied for the guilty pleas. The applicant sought leave to appeal, contending the sentence was tainted by multiple errors and was manifestly excessive.

  • Whether the sentencing judge erred in finding that the delay between the offending and the prosecution was not a mitigating factor
  • Whether the sentencing judge erred by failing to account for the likelihood that the applicant would serve his sentence in protective custody
  • Whether the sentencing judge erred in not reducing the sentence for past assistance provided to authorities
  • Whether the sentencing judge properly took into account the applicant's youth at the time of offending
  • Whether the sentences imposed were manifestly excessive when measured against sentencing practice applicable at the time of the historical offences

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed all five grounds.

On the question of delay, the court found no error in the sentencing judge's approach. On protective custody, the court held that conditions of custody are not generally a basis for reducing sentence, and no error was established. On past assistance to authorities, the court noted that no submission had been made to the sentencing judge on this point and declined to find error on the basis of a matter never put below.

On the question of youthfulness, the court found the sentencing judge had properly taken the applicant's age into account, notwithstanding that the offending continued well into the applicant's late teens and early adulthood. The court also rejected the submission that the sentences reflected current rather than historical sentencing patterns. Hall J identified several distinguishing features of this case: the victim's very young age, the substantial age gap between offender and victim, the persistent and repeated nature of the offending across the entire period, the multiplicity of charges, the Form 1 matters, and the well above mid-range objective seriousness of the two carnal knowledge counts. These features, taken together, placed the sentences well within the available range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error arises from a failure to raise a sentencing ground before the sentencing judge: the Court of Criminal Appeal declined to find error in the absence of a reduction for past assistance because no submission on that matter had been advanced in the District Court.
  • A sentencing judge is not required to reduce a sentence merely because an offender is likely to serve it in protective custody, and the conditions of custody do not ordinarily constitute a mitigating factor.
  • Delay between historical offending and prosecution does not automatically operate as a mitigating factor, and a sentencing judge may properly decline to treat it as such on appropriate facts.
  • In dismissing the manifestly excessive ground, the Court confirmed that the objective gravity of offending must be assessed by reference to the specific circumstances, including the victim's age, the age disparity, the duration and frequency of offending, and the number of charges.
  • Where sentences are structured with substantial concurrency and result in a total effective term proportionate to the overall criminality, an error in form (such as associating Form 1 matters with the wrong count) will not give rise to a practical injustice warranting appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 67, 76, 61D(1), 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bradbery v Regina [2008] NSWCCA 93
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Todd [1982] 2 NSWLR 517
- RJP v Regina [2006] NSWCCA 149
- RJT v R [2012] NSWCCA 280
- Zreika v R [2012] NSWCCA 44