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Court of Criminal Appeal 12 May 2015

Shayne Hammond v Regina

[2015] NSWCCA 89

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED SEXUAL ASSAULT

Citation: Shayne Hammond v Regina [2015] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 12 May 2015
Judges: Hoeben CJ at CL; Adams J; McCallum J

Background

The appellant pleaded guilty to two counts of sexual intercourse without consent in circumstances of aggravation, the aggravating circumstance being that the victim was under 16 years of age (she was 15). The offences occurred after the appellant, then aged 26, waited at a beach campfire while the victim became heavily intoxicated, then offered to drive her home but instead took her to his own residence. While she was in a state of severe intoxication and unable to resist, he committed two separate acts of penetration, both of which caused her pain and physical injury.

The primary judge sentenced the appellant to concurrent terms of six years imprisonment with non-parole periods of three years on each count, incorporating a 25 percent discount for early guilty pleas. The pre-discount starting point was therefore eight years imprisonment.

The appellant sought leave to appeal against sentence on two grounds: that the primary judge erred in assessing the objective seriousness of the offending, and that the primary judge extended only limited leniency for the appellant's absence of prior criminal record and otherwise good character.

  • Whether the primary judge erred in assessing the objective seriousness of the two offences under s 61J of the Crimes Act 1900
  • Whether the primary judge erred in affording only limited leniency for the appellant's good character and clean criminal record
  • Whether, having identified error, the Court of Criminal Appeal was required to impose a lesser sentence in the exercise of its independent discretion under s 6(3) of the Criminal Appeal Act 1912

Decision

Hoeben CJ at CL and Adams J both agreed that the primary judge had erred in the respects identified by Adams J, though they differed on the result. Despite that agreement on error, both judges concluded the appeal should be dismissed, though for different reasons.

On objective seriousness, Adams J held that the primary judge's finding that each offence fell above the mid-range for the relevant offence type was reasonably open on the facts. The appellant's conduct was characterised as predatory: he watched and waited while a teenage girl became progressively vulnerable at a beach at night after her friends had left, then exploited that vulnerability by falsely offering her a safe lift home. The fact that the victim's intoxication was self-induced was held to be wholly irrelevant to that analysis.

On the question of leniency for good character, Adams J noted that the sentences actually imposed clearly reflected considerable weight being given to the appellant's subjective circumstances, meaning this ground also failed.

Hoeben CJ at CL approached the appeal differently. Applying the plurality's reasoning in Kentwell v The Queen [2014] HCA 37, his Honour confirmed that where error is established, the Court must exercise its sentencing discretion afresh rather than simply asking whether the error affected the outcome. In the independent exercise of that discretion, Hoeben CJ at CL was not satisfied that a lesser sentence was warranted in law, and proposed that leave be granted but the appeal dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Where a sentencing judge has acted on a wrong principle or overlooked a material consideration, the Court of Criminal Appeal does not assess the degree to which the error influenced the outcome. Instead, it exercises the sentencing discretion afresh, and may conclude that the same sentence remains appropriate.
  • A sentence that falls within the permissible range but was arrived at through a legally flawed process is not automatically "warranted in law" under s 6(3) of the Criminal Appeal Act 1912. The appellate court must independently determine that it is the appropriate sentence.
  • In assessing the objective seriousness of aggravated sexual assault, predatory conduct in targeting a heavily intoxicated victim, including deceiving her about where she was being taken, is a significant factor regardless of whether the victim's intoxication was self-induced.
  • No single, correct assessment of where an offence falls within the range of seriousness exists. A sentencing judge's finding on that question may only be overturned on appeal if it was not reasonably open on the objective facts of the offending alone.
  • Substantial subjective mitigation, including absence of prior criminal record and good character, may receive less weight where the sentences imposed already reflect significant leniency on those grounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- Ryan v R (2001) 206 CLR 267; [2001] HCA 21
- Weininger v R (2003) 212 CLR 629; [2003] HCA 14