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9
Court of Criminal Appeal 24 October 2016

Mooney v R

[2016] NSWCCA 231

Sexual offences
CRIMINAL LAW SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT VICTIMS WITH DISABILITY

Citation: Mooney v R [2016] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 24 October 2016
Judges: Ward JA; Davies J; RS Hulme AJ

Background

The applicant, a carer at a nursing home, was sentenced in December 2013 by the District Court for two counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW). The aggravating circumstance in each case was that the victims had serious physical disabilities. The offences involved penetration of two nursing home residents, one aged 82 who had suffered a stroke and could not speak or move freely, and another aged 46 who suffered from Huntington's disease.

The original sentences totalled an effective 11.5 years' imprisonment with a non-parole period of 7.5 years. On sentencing, Payne DCJ allowed a 15% discount for the utilitarian value of the applicant's guilty plea, entered on the day he was arraigned in the District Court. Critically, the sentencing judge did not separately account for the applicant's voluntary confession to police, made approximately five weeks after the offences were reported.

The applicant sought leave to appeal on multiple grounds, including the adequacy of the guilty plea discount, the failure to account for his voluntary admissions to police, and several other sentencing matters.

  • Whether the 15% discount for the utilitarian value of the guilty plea (entered on arraignment, with no prior listing for trial) was appropriate or constituted error
  • Whether the sentencing judge erred by failing to take into account the applicant's voluntary confession to police as a form of assistance to authorities
  • Whether other sentencing grounds (grounds 2, 4, and 5, relating to further discrete sentencing complaints) were made out

Decision

The Court of Criminal Appeal unanimously dismissed grounds 2, 4 and 5 without detailed published reasons beyond agreement with RS Hulme AJ's analysis. On the guilty plea discount (ground 3), the Court found no identifiable error. Ward JA noted that quantification of the discount is ordinarily a matter for the sentencing judge, and the choice of 15% was open on the facts, even though the matter had never been listed for trial. The correctness of the ranges discussed in R v Thomson; R v Houlton and R v Borkowski was not in issue and the Court declined to express any view on RS Hulme AJ's observations about those authorities.

Ground 1, however, succeeded. The sentencing judge had not taken into account the applicant's voluntary walk-in confession to police, made in circumstances where the Crown conceded that proving penetration would have been difficult without those admissions. The Court treated this as an error going to a "manifest excess" complaint and held that the assistance rendered to authorities warranted a formal reduction under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

On re-sentencing, RS Hulme AJ (with whom Ward JA and Davies J agreed) recalculated the sentences. Starting from a baseline that reflected the seriousness of the offences and existing discounts, his Honour applied an 8-month reduction for assistance to authorities. Special circumstances were found to apply, both because the applicant had no prior custodial history and because the sentences were to be accumulated.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Payne DCJ on 16 December 2013 quashed
  • First count: imprisonment comprising a non-parole period of 4 years and 10 months commencing 2 February 2013, with a further term of 1 year and 8 months
  • Second count: imprisonment comprising a non-parole period of 3 years and 6 months commencing 2 August 2015, with a further term of 3 years
  • Earliest eligible parole date recorded as 2 February 2019
  • Recorded (per s 23(4) of the Crimes (Sentencing Procedure) Act 1999) that but for the applicant's assistance, the sentences would have been 7 years and 2 months on each count, with an effective total sentence of 10 years and a combined non-parole period of 7 years

Key Takeaways

  • A sentencing judge's failure to account for a voluntary confession that materially assisted the prosecution can constitute error warranting appellate intervention, even where the overall sentence is not otherwise excessive on its face.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing court is required to record what the sentence would have been but for any assistance rendered to authorities, providing transparency about the discount applied.
  • The quantification of a guilty plea discount remains ordinarily a matter for the sentencing judge; the selection of 15% for a plea entered on arraignment, where no trial preparation had occurred, was held to be within the permissible range on the facts of this case.
  • In dismissing grounds 2, 4 and 5, the Court confirmed no error in the other discrete sentencing conclusions reached at first instance.
  • Special circumstances justifying a departure from the standard 75% non-parole period ratio can be established by a combination of a first-time custodial sentence and the accumulation of multiple sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44

Cases:
- CMB v Attorney General (New South Wales) (2015) 243 A Crim R 282; [2015] HCA 9
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Panetta v R [2016] NSWCCA 85
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309