AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
21
Court of Criminal Appeal 4 July 2016

Bullock v R

[2016] NSWCCA 131

Sexual offences
CRIMINAL LAW APPEAL SENTENCE MANIFEST EXCESS YOUTH OF 18 APPEAL GRANTED.

Citation: Bullock v R [2016] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 4 July 2016
Judge(s): Basten JA, Rothman J, Fagan J

Background

The applicant was 18 years and two months old when he committed an offence of sexual intercourse without consent against a friend, in the early hours of 31 May 2014. The complainant had clearly rejected any romantic or sexual relationship with the applicant via text messages only days before the incident, and was heavily intoxicated on the night. Others heard her screaming and interrupted the offence.

The applicant handed himself in to police the following morning and entered a guilty plea at the earliest possible opportunity. The sentencing judge applied a 25% discount for the early plea and accepted that the applicant was genuinely remorseful. The applicant had no prior criminal record and was assessed as having sound prospects of rehabilitation. Psychiatric reports identified a number of disorders he may have been suffering.

At first instance, the applicant was sentenced to six years' imprisonment with a non-parole period of three years and six months. He sought leave to appeal on the sole ground of manifest excess.

  • Whether the sentence of six years' imprisonment with a non-parole period of three years and six months was manifestly excessive.
  • Whether sufficient weight was given to the applicant's youth and immaturity, absence of prior record, early guilty plea, remorse, and prospects of rehabilitation.
  • Whether the sentencing judge was required to make a formal finding as to the objective gravity of the offending on the range of seriousness for offences under s 61I of the Crimes Act 1900 (NSW).
  • How the standard non-parole period of seven years under the Crimes (Sentencing Procedure) Act 1999 (NSW) interacted with the factors warranting departure in this case.

Decision

The Court granted leave to appeal and allowed the appeal, finding the original sentence was manifestly excessive. The three judges each agreed on the outcome, with Rothman J delivering the principal reasons and both Basten JA and Fagan J providing additional reasoning.

On the question of objective seriousness, the Court held there was no requirement to make a precise finding of where the offence sat on the scale of gravity. The sentencing judge had correctly treated the offending as neither at the low end (warranting unusual leniency) nor the high end (approaching an aggravated offence). The involvement of force and persistence had been noted, and that sufficed.

The Court identified the critical mitigating factors as the applicant's age and immaturity, his first-time offending, this being his first period of incarceration, his immediate remorse evidenced by handing himself in, and his sound rehabilitation prospects. These factors warranted a significant further reduction beyond the 25% discount already applied for the early plea. Fagan J examined the Court's own earlier decisions on s 61I sentencing for youthful offenders and found the original sentence sat outside the range established by comparable cases.

Basten JA demonstrated, using a notional calculation, that a five-year head sentence was consistent with the statutory framework. Applying the standard non-parole period of seven years to arrive at a notional head sentence of nine years and four months, reducing by 25% for the plea, and then allowing a similar further reduction for youth and other mitigating factors, produced a head sentence of approximately five years. The Court emphasised this arithmetic was illustrative only and not a required sentencing method. A finding of special circumstances was upheld, justifying a non-parole period shorter than the statutory default ratio, given the applicant's rehabilitation needs on release.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • In lieu thereof, the applicant sentenced to a total term of five years, comprising a non-parole period of two years and six months commencing 17 April 2015 and concluding 16 October 2017, with a remainder of two years and six months concluding 16 April 2020.
  • First eligible for parole on 16 October 2017.

Key Takeaways

  • A sentencing court is not required to make a formal finding of objective gravity or place an offence at a precise point on the range of seriousness, provided it undertakes a careful assessment of the nature of the offending conduct.
  • Youth, immaturity, absence of prior record, and the fact that a sentence represents a first period of incarceration can together warrant a significant reduction in sentence beyond any discount already applied for a guilty plea.
  • Under s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period of seven years for offences under s 61I of the Crimes Act 1900 (NSW) represents the midpoint of the range, but it is a starting reference point that can be departed from where mitigating factors justify it, not a floor.
  • Arithmetic based on the standard non-parole period can be used to demonstrate that a departure from it remains broadly consistent with the statutory framework, but the Court confirmed this is an illustrative exercise and not a prescribed method of sentencing.
  • Consistency with comparable sentencing decisions for similar offences and similarly placed offenders is a relevant consideration on a manifest excess appeal, and the Court of Criminal Appeal's own prior decisions on s 61I sentencing for youthful first offenders form part of that analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44(2), 54A(2)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- R v AEM Snr & Ors [2002] NSWCCA 58
- BP v R [2010] NSWCCA 159
- Green & Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Cowling v R [2015] NSWCCA 213
- McCartney v R [2009] NSWCCA 244
- Badans v R [2012] NSWCCA 97
- Stewart v R [2012] NSWCCA 123