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Court of Criminal Appeal 7 October 2016

R v Leighton

[2016] NSWCCA 215

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE CROWN APPEAL DISMISSED.

Citation: R v Leighton [2016] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 7 October 2016
Judge(s): Hoeben CJ at CL; Harrison J; Campbell J

Background

The respondent, an elderly dentist in poor health, was convicted by a jury on five counts of indecent assault committed against three female patients aged between 10 and 12. The offending occurred across several decades, from 1973 to between 1980 and 1984. In each instance, the respondent administered nitrous oxide gas to the child patient and then committed acts of sexual touching while the child was sedated and, on some occasions, while the dental nurse was absent from the room.

The District Court sentenced the respondent to an aggregate sentence with a non-parole period of one year and one month, commencing November 2015, with a balance of term expiring June 2017. The sentencing judge characterised the offending as a gross and disgraceful breach of trust, noting the high moral culpability involved. However, the judge was required to apply the sentencing practices that prevailed at the time of the offending rather than those in force today, which are considerably more severe.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate and that the sentencing judge had failed to properly accumulate individual sentences and apply the principle of totality.

  • Whether the sentence for Count 4 (indecent assault of CP) was manifestly inadequate.
  • Whether the sentencing judge erred by failing to partially accumulate the sentence for Count 4 on the other sentences.
  • Whether the sentencing judge failed to have proper regard to the principle of totality.
  • Whether the overall sentence was manifestly inadequate.

Decision

The Court of Criminal Appeal dismissed all four grounds of appeal. Hoeben CJ at CL, with Harrison J and Campbell J agreeing, found that the Crown had not established that the sentences were manifestly inadequate.

On the question of period-appropriate sentencing, the Court confirmed that historical sexual offences must be sentenced by reference to the law and sentencing practices in force at the time of the offending. Decisions such as R v MJR and MPB v R established that, during the relevant periods, non-parole periods typically fell between 35% and 50% of the head sentence and that headline sentences were substantially lower than contemporary levels. The sentencing judge was obliged to apply those norms, and did so correctly.

On the ground relating to Count 4, the Court rejected the Crown's submission that the sentence for that count had been subsumed into the other sentences. Examining the sequence and dates of the individual sentences, the Court found that the Count 4 sentence was partially cumulative on the sentences for Counts 1 and 2 and, as one of the two longest fixed terms imposed, was not rendered a nullity by the overall structure.

On totality, the Court acknowledged that the interaction between the principle of totality and the requirement to reflect total criminality allows for a legitimate range of outcomes across which different sentencing judges might reasonably disagree. The sentencing judge had been aware of the need for some accumulation and had structured the sentences accordingly. The Court noted that the case was highly fact-specific and did not raise matters of principle that would guide lower courts in future sentencing decisions.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Historical sexual offences must be sentenced in accordance with the law and sentencing practices that applied at the time of the offending, even where contemporary sentencing norms are significantly more severe.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that non-parole periods of between 35% and 50% of the head sentence were consistent with the sentencing practices prevalent during the 1970s and early 1980s.
  • The totality principle, and the degree of accumulation required to reflect total criminality, involves a measure of discretionary moderation: sentencing judges may reach different views within an acceptable range without either being in error.
  • No error was established in the structure of the individual sentences; the Court of Criminal Appeal found that the Count 4 sentence was in fact partially cumulative and not subsumed by the other sentences when the sequencing was examined carefully.
  • The decision was treated as highly fact-specific and was expressly noted not to establish broader sentencing guidance for lower courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 6, 61E, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- CMB v Attorney General for New South Wales [2014] HCA 9; 89 ALJR 407
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Harris v R [2015] NSWCCA 81
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- MPB v R [2013] NSWCCA 213; 243 A Crim R 576
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v R [1988] HCA 70; 166 CLR 59
- Nguyen v The Queen [2016] HCA 17; 90 ALJR 595
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Dinsdale [2000] HCA 54; 202 CLR 321
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Wong v The Queen [2001] HCA 64; 207 CLR 584