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Court of Criminal Appeal 29 September 2014

DC v R

[2014] NSWCCA 192

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE DELAY ASSISTANCE PROVIDED TO AUTHORITIES

Citation: DC v R [2014] NSWCCA 192
Court: Court of Criminal Appeal, NSW
Date: 29 September 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J

Background

The applicant was found guilty after trial in the District Court of four counts of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The offences were committed in Port Macquarie in 1993 against a 15-year-old complainant, involving a sustained and violent attack at knifepoint on a single night. The circumstance of aggravation in each count was the complainant's age.

The applicant was not identified and charged until 2011, when DNA matching through a Cold Case Justice Project linked him to samples collected from the complainant on the night of the attack. He was sentenced in the District Court in June 2012 to an aggregate head sentence of 7 years, with a non-parole period of 5 years and 3 months.

The applicant, who was self-represented on appeal and appeared by video link, sought leave to appeal against that sentence. His handwritten submissions raised two broad complaints: the delay between offence and conviction, and assistance he claimed to have provided to authorities.

  • Whether the sentencing judge failed to give adequate weight to the delay between the commission of the offences in 1993 and the sentencing in 2012
  • Whether the applicant was entitled to a sentencing discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for assistance provided to authorities
  • Whether the offences should have been dealt with on a Form 1 in connection with an earlier set of proceedings in 2004, rather than as stand-alone charges

Decision

On the delay ground, the Court was satisfied there was no substance in the appeal. The sentencing judge had expressly considered the principle from R v Todd [1982] 2 NSWLR 517, which requires a flexible and understanding approach when sentencing for a stale offence. The Crown's submission, that the Todd principle may not even have applied here and that any leniency afforded was already unduly favourable to the applicant, was noted by the Court as having force, but it was unnecessary to resolve that question given the sentencing judge's evident and careful consideration of the issue.

On the assistance ground, the Court found the argument was not advanced before the sentencing judge and could not be resurrected on appeal. The Court noted that the decision about what submissions to advance was a matter for the applicant and his counsel at first instance. Furthermore, the applicant's assistance to authorities had already been taken into account in his favour in multiple earlier and unrelated sentencing proceedings, as confirmed by a series of unreported decisions spanning from 1991 to 2004.

On the Form 1 argument, the Court accepted the Crown's submission that the gravity of the four sexual assault offences was such that even if the applicant had been charged in 2004, it would not have been appropriate to deal with them on a Form 1 alongside the earlier matter. No error in the sentencing judge's approach was established on any of the grounds advanced.

Orders Made

  • Leave to appeal against sentence refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that grounds of appeal based on submissions not raised before the sentencing judge will generally not be entertained on appeal, as the responsibility for those choices rests with the applicant and counsel at first instance.
  • A sentencing discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 is not available on appeal as a fresh argument where the issue was not litigated at sentence.
  • Where a sentencing judge has expressly considered the R v Todd principle regarding stale offences and afforded some leniency for delay, an appellate court will not readily find error merely because the applicant contends the delay warranted greater weight.
  • Offences of sufficient gravity will not be regarded as appropriate candidates for a Form 1, regardless of whether they could theoretically have been included in earlier proceedings.
  • No error was established in the aggregate sentence of 7 years imposed for four counts of aggravated sexual intercourse without consent involving a 15-year-old complainant, multiple forms of aggravation, and an extensive prior record including prior sexual offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent), s 61K(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 21A(2) (aggravating factors), s 23 (assistance to authorities), s 54B (standard non-parole periods)

Cases:
- R v Todd [1982] 2 NSWLR 517
- R v Kay [2004] NSWCCA 130
- R v Spiers [2008] NSWCCA 107
- R v Ebner [2001] NSWSC 421
- R v Cook (Court of Criminal Appeal, 12 December 1991, unreported)
- R v Cook (Court of Criminal Appeal, 26 June 1995, unreported)
- R v Cook (District Court, Keleman DCJ, 17 December 2004, unreported)