Citation: Cowling v R [2015] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 12 August 2015
Judges: Leeming JA (with Hamill J and Fagan J agreeing)
Background
The appellant pleaded guilty to one count of indecent assault (s 61L, Crimes Act 1900) and one count of sexual intercourse without consent (s 61I, Crimes Act 1900). The offences occurred in December 2013, when the appellant sexually assaulted the victim while she was asleep on a couch at the home of a mutual friend. The victim had known the appellant through that mutual friend for approximately five years.
The primary judge sentenced the appellant to an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 5 months, incorporating a 25% discount for early guilty pleas. The appellant sought leave to appeal on two grounds, both of which the Crown ultimately conceded were made out.
Legal Issues
- Whether the primary judge erred by treating the offender's relationship with the victim as an abuse of "a position of trust or authority" within the meaning of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, thereby increasing the objective seriousness of the offence
- Whether the primary judge erred by treating the victim's physical movements (such as closing her legs) as amounting to resistance that demonstrated the offender's persistence, and relying on that persistence as a further aggravating feature
Decision
The Crown conceded both grounds of appeal, and the Court of Criminal Appeal accepted those concessions as properly made. On the first ground, Leeming JA confirmed the well-settled principle, drawn from Karl Suleman v R [2009] NSWCCA 70, that a mere breach of trust between friends does not satisfy the statutory aggravating factor under s 21A(2)(k). Something more than an ordinary friendship must be established before that factor can be applied.
On the second ground, the Court accepted the Crown's concession that the primary judge had drawn an inference about the offender's persistence from the agreed facts without a sufficient basis. The statement of agreed facts recorded that the victim was pretending to be asleep throughout the assault and made movements in an attempt to cause the offender to stop, but those facts did not support a finding that the offender was aware of, and persisted in the face of, active resistance.
Because both errors went to the objective seriousness of the offending, the original sentence could not stand. The Court re-sentenced the appellant, taking into account comparable cases, the offender's antecedents, evidence of remorse, and his engagement with rehabilitation programs for substance abuse. Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act were found to apply, justifying a shorter ratio between the non-parole period and the head sentence.
The Court imposed a lower aggregate sentence of 2 years and 4 months, with a non-parole period of 18 months. Leeming JA indicated the component sentences as 2 years and 3 months (non-parole period of 17 months) for the sexual assault and 9 months for the indecent assault, with the aggregate reflecting the overall criminality of a single course of conduct.
Orders Made
- Leave to appeal granted
- Appeal allowed; sentence imposed on 9 October 2014 quashed
- Appellant re-sentenced to an aggregate term of 2 years and 4 months imprisonment, commencing 9 October 2014, with a non-parole period of 18 months expiring 8 April 2016
- Appellant to be released on parole at the conclusion of the non-parole period, pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- Under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, a pre-existing friendship, even one involving mutual trust, does not by itself constitute a "position of trust or authority" for the purposes of the statutory aggravating factor. Something beyond ordinary friendship must be established.
- Inferences drawn from a statement of agreed facts must be supportable by those facts. Where the facts do not clearly establish that an offender was aware of a victim's resistance, a sentencing court cannot treat persistence in the face of that resistance as an aggravating feature.
- Where the Crown formally concedes that grounds of appeal are made out, the Court of Criminal Appeal will ordinarily accept those concessions and proceed to re-sentence, provided the concessions are themselves properly founded.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act may be established where an offender has a history of substance abuse and demonstrable engagement with rehabilitation programs, resulting in a reduced ratio between the non-parole period and the head sentence.
- In re-sentencing, the Court of Criminal Appeal assessed the objective criminality as somewhat lower than comparable cases such as McCartney, Sabapathy, and JRB, while also noting that the offender's antecedents and rehabilitation prospects were less favourable than those defendants.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 44, 50, 53A
- Crimes Act 1900 (NSW), ss 61H, 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5
Cases:
- Karl Suleman v R [2009] NSWCCA 70
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Olbrich v The Queen [1999] HCA 54; 199 CLR 270
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Ibbs v R (1987) 163 CLR 447
- McCartney v R [2009] NSWCCA 244
- Sabapathy v R [2008] NSWCCA 82
- R v JRB [2006] NSWCCA 371
- R v PGM [2008] NSWCCA 172
- CS v R [2014] NSWCCA 229
- Badans v R [2012] NSWCCA 97
- Peiris v R [2014] NSWCCA 58
- R v Daley [2010] NSWCCA 223
- R v Kirkland [2005] NSWCCA 130
- SV v State of Western Australia [2014] WASCA 123
- R v Storey [1998] 1 VR 359