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Court of Criminal Appeal 5 March 2015

PS v R

[2015] NSWCCA 20

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL OFFENCES WITH CHILD NO CAUSAL LINK TO OFFENDING NO ERROR DEMONSTRATED

Citation: PS v R [2015] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 5 March 2015
Judge(s): Hoeben CJ at CL, R A Hulme J, Davies J (with whom the other members agreed)

Background

The applicant pleaded guilty in the District Court to one count of sexual intercourse with a child under the age of ten years, contrary to s 66A of the Crimes Act 1900 (NSW). The victim was his six-year-old niece. Two further counts of indecent assault were taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered in sentencing without separate convictions being recorded).

The sentencing judge in the District Court imposed a non-parole period of three years and six months, with an additional term of three years, giving a total head sentence of six and a half years. The judge reduced the sentence by 35 per cent to reflect the applicant's early guilty plea, his confession to the victim's mother, and his cooperation with authorities.

The applicant sought leave to appeal against sentence on a single ground: that the sentencing judge failed to properly take into account his cognitive and intellectual impairment.

  • Whether the sentencing judge adequately considered the applicant's cognitive and intellectual impairment when imposing sentence
  • Whether, given that impairment, the sentencing judge erred by failing to reduce the weight given to general deterrence
  • Whether the sentencing judge impermissibly increased the weight given to protection of society as a sentencing objective

Decision

Davies J, with whom Hoeben CJ at CL and R A Hulme J agreed, dismissed the appeal, finding no error in the sentencing judge's approach.

On the question of cognitive impairment, the Court found that the sentencing judge had expressly engaged with the psychological evidence. The psychologist reported that the applicant's total IQ fell in the extremely low range, placing him in the bottom one percentile of the population. The sentencing judge accepted that finding, notwithstanding his own impression from observing the applicant give evidence. The Court was satisfied the impairment had been genuinely considered.

On general deterrence, the applicant argued that his intellectual disability warranted a reduction in the weight given to this sentencing purpose, consistent with the principle in R v Engert (1995) and Zaharos v R [2008]. The Court acknowledged that principle but noted a critical limitation: the applicant's intellectual disability had no demonstrated causal connection to the offending. Without that causal link, there was no basis for reducing the weight to be given to general deterrence.

Regarding protection of society, the Court noted that the applicant's own counsel at the sentencing hearing had conceded it was the primary sentencing objective for an offence of this kind. The Court found nothing in the sentencing remarks to suggest the judge had impermissibly elevated that consideration, and observed that even if some additional weight had been given to it, that would not have constituted error. The weight accorded to protection of society remained within the sentencing judge's discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A cognitive or intellectual impairment will not automatically reduce the weight given to general deterrence in sentencing; a causal connection between the impairment and the offending conduct must first be established.
  • The Court of Criminal Appeal confirmed that protection of society is a legitimate and significant sentencing consideration for serious child sexual offences, and the weight given to it lies within the sentencing judge's discretion.
  • In dismissing the appeal, the Court emphasised that where a sentencing judge expressly engages with psychological evidence about an offender's intellectual capacity, an appellate court will not readily find that the factor was overlooked or inadequately considered.
  • No error was established merely because the starting point for the sentence appeared high when viewed in isolation; the maximum penalty of 25 years and the standard non-parole period of 15 years for the offence reflected its serious character.
  • The principle from R v Engert permitting reduced weight for general deterrence where an offender has a mental condition is not engaged unless that condition has some relevant connection to the commission of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under ten years)
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases
- R v Engert (1995) 84 A Crim R 67
- Zaharos v R [2008] NSWCCA 336