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Court of Criminal Appeal 25 September 2014

DO v R

[2014] NSWCCA 189

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE CONSIDERATION OF SENTENCE IMPOSED ON CO OFFENDER

Citation: DO v R [2014] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 25 September 2014
Judges: Gleeson JA (with Fullerton J and Garling J agreeing)

Background

The applicant, a woman aged 31 at the time of the offending, pleaded guilty in the District Court to aggravated sexual intercourse with a person aged between 14 and 16 years, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 12 years imprisonment. The victim was a 15-year-old family friend who had regularly babysat the applicant's children.

The offending occurred during a joint criminal enterprise with the applicant's de facto partner (the co-offender), who had threatened both the victim and the applicant to secure compliance. Psychological evidence before the sentencing court addressed the applicant's limited intellectual functioning and her vulnerability to manipulation by the co-offender. The sentencing judge imposed a total term of 3 years imprisonment, with a non-parole period of 18 months.

The co-offender was later sentenced separately to a non-parole period of 4 years and 6 months. The applicant sought leave to appeal, arguing the sentencing judge had failed to properly account for her intellectual disability, had overstated the objective seriousness of her offending, and that her sentence did not adequately reflect the disparity between her role and that of the co-offender.

  • Whether the sentencing judge erred in failing to give adequate weight to the applicant's limited intellectual capacity and vulnerability to manipulation when assessing her moral culpability
  • Whether the sentencing judge erred in failing to reduce the need for general deterrence in light of her intellectual disability
  • Whether the sentencing judge erred in placing the objective seriousness of the offending between the middle and top of the range
  • Whether the applicant had a justifiable sense of grievance arising from the disparity between her sentence and that imposed on the co-offender

Decision

The Court of Criminal Appeal, through Gleeson JA, accepted that the applicant's moral culpability was reduced to some degree by her limited intellectual functioning and her vulnerability to manipulation by the co-offender. The Crown itself acknowledged the co-offender was the prime mover in the joint criminal enterprise. The Court found that the applicant's participation, while a necessary element of the offending, was secondary in comparison to her partner's role.

On the question of objective seriousness, the Court held that the sentencing judge erred: the applicant's offending was properly characterised as below the mid-range, not between the middle and top of the range. This finding was linked directly to the reduced moral culpability flowing from her intellectual limitations and secondary role.

The Court also considered the sentence imposed on the co-offender, as required under the principle in Green v The Queen; Quinn v The Queen [2011] HCA 49. Applying the parity principle from R v Postiglione [1997] HCA 26, the Court was satisfied that a lesser sentence was warranted to properly reflect the different roles, moral culpability, and subjective circumstances of the two offenders. The Court recalculated the sentence from an adjusted starting point of 3 years, applied the 25% guilty plea discount already found by the sentencing judge, and maintained the 50% ratio of non-parole period to head sentence that the judge had applied on the basis of special circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed in the District Court on 12 August 2013 was quashed
  • The applicant was resentenced to imprisonment comprising a non-parole period of 13 months and 15 days commencing 11 August 2013 and expiring 25 September 2014, with a balance of term of 13 months and 15 days commencing 26 September 2014 and expiring 10 November 2015; the applicant was to be released to parole on 26 September 2014

Key Takeaways

  • A sentencing court's failure to give adequate weight to an offender's intellectual disability and vulnerability to manipulation by a co-offender can constitute a legal error warranting appellate intervention.
  • Where two offenders are sentenced for the same offence arising from a joint criminal enterprise, the parity principle requires that any disparity in sentences reflect genuine differences in roles, moral culpability, and subjective circumstances.
  • The Court of Criminal Appeal confirmed that an offender's secondary role in a joint criminal enterprise, combined with intellectual limitations and coercive pressure from a co-offender, may reduce both moral culpability and the objective seriousness of the offending below the mid-range.
  • Under Green v The Queen; Quinn v The Queen, a sentencing court is required to have regard to the sentence imposed on a co-offender; failure to do so in a meaningful way can support a ground of appeal.
  • Recorded post-offence statements in which the applicant appeared to minimise her culpability were weighed against evidence of her intellectual limitations; the Court was not satisfied those statements demonstrated a lack of sincere contrition in the context of the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61I, 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v Postiglione [1997] HCA 26; 189 CLR 295
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- Aslan v R [2014] NSWCCA 114
- Ayshow v R [2011] NSWCCA 240
- Beldon v R [2012] NSWCCA 194
- Elturk v R [2014] NSWCCA 61
- McLaren v R [2012] NSWCCA 284
- R v Koloamatangi [2011] NSWCCA 288
- Sheen v R [2011] NSWCCA 259
- Zreika v R [2012] NSWCCA 44