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16
Court of Criminal Appeal 23 April 2014

Greenwood v Regina

[2014] NSWCCA 64

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Greenwood v Regina [2014] NSWCCA 64
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2014
Judges: Bathurst CJ, Hoeben CJ at CL, Adams J

Background

The applicant was convicted after a judge alone trial of two offences: sexual intercourse without consent (cunnilingus) under s 61I of the Crimes Act 1900, and indecent assault under s 61L of the same Act. The victim was an 18-year-old woman who had consumed a very large amount of alcohol during an evening out and had passed out in the front seat of a motor vehicle. The applicant, aged 36 and in a relationship with the victim's godmother, committed both offences while the victim was unconscious and entirely unaware.

The offences came to light when the victim's godmother returned to the car and observed the applicant in the act. DNA evidence confirmed the indecent assault. The victim had no memory of events from partway through the evening until she woke in hospital, where she reported soreness consistent with the offending.

The sentencing judge in the District Court imposed an overall sentence of 4 years and 6 months' imprisonment, with a non-parole period of 3 years and 4 months. The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence imposed for sexual intercourse without consent and indecent assault was manifestly excessive, having regard to the sentencing judge's characterisation of the principal offence as below mid-range in objective seriousness.
  • Whether the sentencing judge gave adequate weight to the specific form of the sexual act (cunnilingus) as affecting the sentence's proportionality.
  • Whether loss of employment following conviction should have been taken into account as extra-curial punishment (that is, punishment experienced outside the formal sentencing process) to reduce the sentence.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Hoeben CJ at CL, with Bathurst CJ and Adams J agreeing, held that the sentence was not manifestly excessive and represented an appropriate exercise of the sentencing judge's discretion.

The Court accepted the sentencing judge's characterisation of the principal offence as below mid-range, but noted this did not automatically mandate a substantially lower sentence. The victim's complete unconsciousness was itself a significant aggravating feature: it rendered her entirely vulnerable and that vulnerability was deliberately exploited. The offending was further aggravated by the fact that the applicant was on conditional liberty (bail) at the time. There was no evidence of remorse. The Court affirmed that general deterrence and denunciation carried particular weight in offences of this nature.

On the question of the specific sexual act, the Court declined to treat cunnilingus as categorically less serious than other forms of sexual intercourse without consent for sentencing purposes. The Court considered a range of comparable decisions and found the sentence fell within the appropriate range.

The Court also rejected the submission that loss of employment should have reduced the sentence as extra-curial punishment. Citing Einfeld v Regina, the Court noted that job loss is a near-inevitable consequence of a conviction for this type of offence, and that treating it as a mitigating factor risks producing the unjust result that employed offenders receive shorter sentences than those who were unemployed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's characterisation of an offence as below mid-range does not, of itself, require a substantially reduced sentence where other factors, including the victim's complete vulnerability and the offender's aggravated circumstances, remain significant.
  • A victim's unconsciousness at the time of a sexual offence is an aggravating feature, not merely a neutral circumstance: the Court treated the victim's helpless state as something the applicant knowingly exploited.
  • Under the Court's analysis of extra-curial punishment, loss of employment following conviction for a serious sexual offence carries little or no mitigating weight, because such loss is a near-inevitable consequence of conviction for offences of that kind.
  • Relying on Einfeld v Regina, the Court identified a risk of unfairness in treating employment-related consequences as mitigation, since doing so may systematically favour previously employed offenders over those who were unemployed at the time of sentencing.
  • General deterrence and public denunciation of exploitative sexual conduct against vulnerable individuals remained central considerations, even where the offender had no prior relevant criminal history and demonstrated prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Adam Jolly v R [2013] NSWCCA 76
- BP v R [2010] NSWCCA 159
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Doe v R [2013] NSW 248
- Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v GWM [2012] NSWCCA 240
- R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
- RO v R [2013] NSWCCA 162