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Court of Criminal Appeal 7 March 2016

Wakeling v R

[2016] NSWCCA 33

Sexual offences
CRIMINAL LAW SENTENCING S 66C(4) CRIMES ACT OBJECTIVE SERIOUSNESS FINDING OF SPECIAL CIRCUMSTANCES NON

Citation: Wakeling v R [2016] NSWCCA 33
Court: Court of Criminal Appeal, NSW
Date: 7 March 2016
Judges: Hoeben CJ at CL, Johnson J, Davies J (Davies J delivering the leading judgment)

Background

The appellant pleaded guilty in the District Court to one count of aggravated sexual intercourse with a person aged 14 to 16 years, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 12 years imprisonment. The aggravating circumstance was that the appellant was in the company of another adult at the time.

The offending involved a 15-year-old babysitter who was threatened with physical violence before being subjected to a sustained sexual assault by the appellant and his partner over a period of time. The complainant had been a regular babysitter for the family and came from a family closely acquainted with the appellant.

The District Court sentenced the appellant to a non-parole period of four years and six months, with an additional term of one year, four months and six days. The appellant sought leave to appeal on two grounds: that the sentencing judge had wrongly assessed objective seriousness, and that the non-parole period was disproportionate to the total sentence.

  • Whether the sentencing judge assessed the objective seriousness of the s 66C(4) offence by impermissibly treating it as equivalent to, or benchmarking it against, a different and more serious offence (aggravated sexual assault under s 61J), which requires proof of lack of consent as an element
  • Whether the non-parole period of four years and six months, representing approximately 77% of the head sentence, was excessive and failed to adequately reflect the finding of special circumstances

Decision

Ground 1: Objective seriousness

The Court of Criminal Appeal upheld this ground. The sentencing judge had referred to the complainant's lack of consent and her fear when describing the offending circumstances, language that is relevant to the separate offence of aggravated sexual assault under s 61J rather than to the charged offence under s 66C(4). The s 66C(4) offence does not require proof of lack of consent; it is a strict liability offence as to the complainant's age and the act of sexual intercourse.

However, the Court made clear that the surrounding circumstances of an offence, including the manner in which it was committed, may and should be described when assessing objective seriousness. The error was not in referring to the complainant's distress or the coercive context as such, but in using language that treated lack of consent as if it were an element of the charged offence, thereby risking inflation of the seriousness assessment by reference to the wrong statutory standard. The Court concluded this constituted an error requiring resentencing.

Ground 2: Non-parole period and special circumstances

The Court also upheld this ground. The statutory ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW) is that a non-parole period should not exceed two-thirds (approximately 67%) of the total sentence. A judge may find "special circumstances" to depart from this ratio, but where such a finding is made, the non-parole period should reflect a meaningful reduction. At 77% of the head sentence, the non-parole period here was inconsistent with the finding of special circumstances made by the sentencing judge. The Court found special circumstances were established on the basis that this was the appellant's first time in custody and that he had identified criminogenic needs, including alcohol and drug issues, that would benefit from an extended period of supervised rehabilitation in the community.

The Court also noted that sentences should be expressed in years and months only, and not in years, months and days. Where a mathematical calculation produces a result with additional days, it should be rounded to the nearest month.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by the District Court quashed
  • In lieu thereof, the appellant sentenced to a non-parole period of four years and one month commencing 22 July 2013 and expiring 21 August 2017, with an additional term of one year and nine months expiring 21 May 2019

Key Takeaways

  • A sentencing court assessing objective seriousness under s 66C(4) of the Crimes Act 1900 must not benchmark the offence against the more serious s 61J offence, which has different elements including lack of consent, as doing so risks error under the principle in The Queen v De Simoni (1981) 147 CLR 383.
  • Surrounding circumstances of an offending event, such as threats, fear, and the complainant's distress, may be legitimately taken into account when describing and assessing the seriousness of a charge, but only in a way that does not treat elements of a different and more serious offence as if they are part of the charged offence.
  • Where a sentencing judge makes a finding of special circumstances to depart from the two-thirds statutory ratio between non-parole period and head sentence, the non-parole period must actually reflect that departure in a meaningful way. A non-parole period of 77% of the total sentence is inconsistent with such a finding.
  • The Court of Criminal Appeal confirmed that sentences should be expressed in years and months only, not in years, months and days, with any residual days rounded to the nearest month.
  • In resentencing, the Court set the non-parole period at approximately 70% of the head sentence, reflecting the special circumstances identified.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Hogan v R [2008] NSWCCA 150
- R v Lupton [2003] NSWCCA 200
- R v So [2004] NSWCCA 362
- Bakewell v R (Court of Criminal Appeal, 27 June 1996, unreported)