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Court of Criminal Appeal 29 April 2016

Lee v Regina

[2016] NSWCCA 66

Sexual offences
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Lee v Regina [2016] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 29 April 2016
Judge(s): Basten JA; McCallum J; Davies J

Background

The appellant was sentenced in the District Court in October 2014 on three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Each offence involved the appellant performing fellatio on a young man he had encountered at a public place, while the victim was severely intoxicated and incapacitated. The appellant was 60 years old at the time of sentencing.

The sentencing judge imposed an aggregate sentence of 11 years, with a non-parole period of 7 years 6 months. The indicative individual sentences for counts 1 and 3 were each 8 years with a non-parole period of 5 years 4 months; the indicative sentence for count 2 was slightly less. The appellant had no benefit from an early guilty plea, having been convicted after a trial at which both victims and the accused gave evidence.

The appellant sought leave to appeal, challenging the sentencing judge's characterisation of the objective seriousness of the offending and contending that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as within the mid-range
  • Whether the aggregate sentence of 11 years (non-parole period 7 years 6 months) was manifestly excessive
  • Whether specific grounds of appeal relating to the sentencing exercise disclosed error

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, granting leave but finding no basis to intervene.

On the objective seriousness ground, the Court confirmed that assessing objective gravity is "quintessentially" an evaluative exercise for the sentencing judge, and the Court of Criminal Appeal will be slow to interfere. The sentencing judge had presided over the trial and heard the witnesses directly, placing him in a superior position to assess the circumstances. The Court acknowledged that two factors could have supported a lower characterisation: the nature of the sexual acts (as distinct from penile penetration) and the fact that the appellant had not caused the victims' intoxicated state. However, neither factor was sufficient, on the facts of this case, to displace the mid-range characterisation.

On manifest excess, the Court examined available sentencing statistics and comparable cases. The statistics showed the individual indicative non-parole periods were towards the high end of the range, with only six offenders out of 133 receiving higher non-parole periods for non-consecutive terms in the relevant period. The Court also considered the decision in Greenwood v Regina [2014] NSWCCA 64, which the sentencing judge had found unhelpful, and noted that case involved a sentence below mid-range with favourable subjective circumstances for the offender. Weighing all factors, including the standard non-parole period of 7 years, the absence of a guilty plea, the appellant's prior offending, and the separate nature of the three offences against different victims, the Court was not persuaded that the aggregate sentence revealed latent error. The Court described the sentence as "stern" but not excessive.

All three judges agreed. Basten JA noted that the sentencing judge had been careful to avoid undue accumulation given the appellant's age, and that the outcome was a reasonably measured aggregation of what would otherwise have been separate substantial terms.

Orders Made

• Leave to appeal be granted
• Appeal be dismissed

Key Takeaways

  • Assessing the objective seriousness of an offence is quintessentially an evaluative task for the sentencing judge; the Court of Criminal Appeal confirmed it will be slow to intervene, particularly where the judge conducted the trial and assessed witnesses firsthand.
  • A sentence that falls towards the high end of the statistical range for an offence does not, without more, establish manifest excess, especially where the standard non-parole period, the absence of a guilty plea, and prior offending justify a stern outcome.
  • In dismissing the challenge to the mid-range characterisation, the Court of Criminal Appeal acknowledged that the nature of the sexual act and the offender's non-involvement in causing the victims' vulnerability were factors capable of attracting some weight, but found they did not override the sentencing judge's assessment on the specific facts.
  • Where multiple offences involve separate incidents and different victims, a sentencing court imposing an aggregate sentence must remain alert to avoiding an unduly severe overall term, particularly where the offender is elderly.
  • Sentencing statistics are a limited guide when they do not distinguish between those who pleaded guilty and those who were convicted after trial, and when the cases span a wide range of objective seriousness and subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A, 53A(2), 54D

Cases:
- Mulato v Regina [2006] NSWCCA 282
- Greenwood v Regina [2014] NSWCCA 64
- Doe v R [2013] NSWCCA 248
- Hughes v R [2015] NSWCCA 330
- Ewen v R [2015] NSWCCA 117
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120