Citation: EG v R [2015] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 3 March 2015
Judge(s): Hoeben CJ at CL; Harrison J; R A Hulme J
Background
The applicant, a paternal grandfather in his mid-sixties, pleaded guilty in the Lismore District Court to aggravated sexual intercourse with his two-year-old granddaughter, an offence under s 66A(2) of the Crimes Act 1900 carrying a maximum of life imprisonment and a standard non-parole period of 15 years. The single act involved licking the child's genitals during a nappy change and lasted only seconds. The applicant said he had no idea why he did it, and medical evidence confirmed he had suffered a complete loss of sexual function following treatment for prostate cancer.
The applicant came to the attention of police after the child made a disclosure to her mother. Crucially, when police spoke to the applicant they told him there was no evidence and that he would not be prosecuted. After a sleepless night, the applicant voluntarily contacted a Family and Community Services worker and made full admissions, which then led to a formal police interview. The sentencing court found the matter could not have been prosecuted without those admissions.
On 5 March 2014, the District Court sentenced the applicant to a non-parole period of 2 years and 6 months, with a balance of term of 2 years and 6 months. The applicant appealed on the grounds that the sentencing judge gave excessive weight to the Victim Impact Statement, gave inadequate weight to his assistance to authorities, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge placed too much weight on the Victim Impact Statement, particularly given that the harm described went well beyond what might ordinarily be expected from a single act of this nature.
- Whether adequate weight was given to the applicant's voluntary and decisive assistance to authorities, including his admissions made when prosecution was not imminent.
- Whether, taking into account the highly unusual combination of subjective factors, the sentence was manifestly excessive.
Decision
The Court of Criminal Appeal found that the sentencing judge erred by devoting a disproportionate portion of the sentencing remarks (two and a half of ten pages) to the Victim Impact Statement and by accepting its contents at face value. The harm described in the statement went well beyond what might ordinarily be expected from a single, brief act of sexual abuse. While the Court accepted that any sexual abuse of a very young child can cause psychological harm, it found that the sentencing judge had placed too much weight on the extensive and serious consequences described in the statement without sufficient scrutiny.
On the question of assistance to authorities, the Court found that inadequate weight had been given to the applicant's conduct. His admissions were volunteered at a time when the police had explicitly told him he would not be prosecuted, making his cooperation particularly significant. The Court confirmed the established principle from R v Ellis (1986) that a plea of guilty in circumstances where the offender has effectively made a case against himself by confessing warrants a substantial discount.
The Court also considered the applicant's highly unusual subjective circumstances: his advanced age, absence of any prior offending, genuine remorse, complete loss of sexual function rendering any sexual motivation implausible, evidence of cognitive impairment including mild dementia and cerebrovascular disease, and the greater burden that custody imposed on him due to his health and the need to be held in protective custody. These factors, individually significant and collectively exceptional, contributed to the finding that the original sentence was unreasonable and plainly unjust.
The Court noted that the factual circumstances were so unusual as to render comparisons with other s 66A(2) cases of little assistance. Applying the test from Dinsdale v R, the Court was satisfied that the sentencing discretion had miscarried and that a lesser sentence was warranted.
Orders Made
- The sentence imposed by the District Court on 5 March 2014 is quashed.
- In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 1 year, commencing 5 March 2014 and expiring 4 March 2015, with a balance of term of 1 year expiring 4 March 2016.
- The applicant is to be released to parole on the expiration of the non-parole period.
Key Takeaways
- A sentencing court must apply appropriate scrutiny to a Victim Impact Statement where the harm asserted significantly exceeds what might ordinarily be expected from the offending conduct; uncritical acceptance of that statement may constitute error.
- Voluntary admissions made by an offender when police have explicitly indicated they will not prosecute represent a particularly weighty form of assistance to authorities, beyond an ordinary early plea.
- Under the principle established in R v Ellis, an offender who effectively creates the prosecution case against himself through confession is entitled to a substantial sentencing discount.
- The absence of any apparent sexual motivation, where supported by medical evidence, is a relevant mitigating factor in an offence that would ordinarily be regarded as sexually motivated.
- Cognitive impairment, advanced age, deteriorating physical health, and the heightened burden of protective custody are all recognised as capable of reducing the appropriate sentence, and their combined effect may be substantial in an unusual case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(a)
Cases
- DBW v R [2007] NSWCCA 236
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Ellis (1986) 6 NSWLR 603
- R v Gavel [2014] NSWCCA 56
- R v MJB [2014] NSWCCA 195
- R v Tuala [2015] NSWCCA 8
- RP v R [2013] NSWCCA 192
- RR v R [2011] NSWCCA 235
- SW v R [2013] NSWCCA 255