Citation: Faehringer v R [2017] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 16 October 2017
Judge(s): Macfarlan JA, Beech-Jones J, Wilson J (all agreeing)
Background
The applicant, a foster father then aged 77, had pleaded guilty in the District Court in 2015 to five historical sexual offences against his foster daughter committed between 1973 and 1977. The offences included two counts of indecent assault and three counts of carnal knowledge of a girl aged between 10 and 16, brought under legislation that has since been repealed. The sentencing judge imposed an aggregate effective sentence of 8 years and 3 months imprisonment with a non-parole period of 5 years and 3 months.
The applicant sought leave to appeal against sentence on multiple grounds, including that insufficient weight was given to his contrition, rehabilitation and age, that the totality principle was not properly applied, and that the sentences were manifestly excessive. After the Crown filed its submissions, it came to light that one of the three carnal knowledge counts (count 5) was statute-barred: the applicable legislation prohibited prosecution more than 12 months after the offence where the complainant was aged 14 or over, and the evidence did not establish the complainant was under 14 during the relevant period. The applicant then sought leave to add a conviction appeal in respect of that count.
Legal Issues
- Whether the conviction on count 5 should be quashed because the prosecution was statute-barred under s 78 of the Crimes Act 1900 (NSW)
- Whether the sentencing judge erred in assessing the objective seriousness of counts 3 and 4
- Whether sufficient utilitarian discount was given for the early pleas of guilty
- Whether adequate weight was given to rehabilitation prospects
- Whether the totality principle was properly applied in structuring the sentences
- Whether the aggregate sentence was manifestly excessive
Decision
The Court granted leave to appeal against conviction on count 5 and quashed that conviction and its associated sentence. The evidence did not establish that the complainant was under 14 during the period covered by the charge, meaning the prosecution was barred by s 78 of the Crimes Act. That count was removed entirely from the sentencing exercise.
On the remaining sentence grounds, Wilson J (with whom Macfarlan JA and Beech-Jones J agreed) found that errors had been established, including in the application of the totality principle and in the weight given to utilitarian value of the guilty pleas. The Court accepted that a 25% discount was appropriate for the early pleas and that special circumstances warranted a lower ratio of non-parole period to total term, having regard to the applicant's age, ill health and the historically shorter minimum terms and remissions schemes that applied at the time of offending.
Wilson J noted that the sentences imposed needed to reflect the sentencing patterns that prevailed at the time of the offending, while also acknowledging that the elderly age of an offender cannot give rise to an expectation that serious offending will be treated with relative impunity. The Court imposed a new aggregate sentence of 6 years and 7 months imprisonment with a non-parole period of 3 years and 7 months, making clear that a considerably longer sentence would have been imposed had the offending occurred in recent times.
Orders Made
- Leave to appeal against conviction on count 5 granted; conviction and sentence on count 5 quashed
- Leave to appeal against sentence on counts 1 to 4 granted
- Sentences imposed on 19 November 2015 set aside
- In lieu: aggregate term of 6 years and 7 months imprisonment, dated from 19 November 2015 and expiring 18 June 2022, with a non-parole period of 3 years and 7 months expiring 18 June 2019
- Indicative sentences: count 1 (6 months), count 2 (12 months), count 3 (3 years), count 4 (3 years)
Key Takeaways
- A conviction brought in breach of a statutory time limitation is a nullity: the Court of Criminal Appeal quashed count 5 on the basis that the prosecution was statute-barred where the evidence did not establish the complainant fell within the age category that would have permitted the charge to proceed.
- Historical sentencing requires courts to have regard to the patterns and levels of sentences that prevailed at the time of the offending, including the operation of remissions schemes, rather than simply applying contemporary sentencing norms.
- Under the authorities, the advanced age or ill health of an offender may found a finding of special circumstances justifying a reduced non-parole period, but these factors do not operate to significantly diminish the objective gravity of serious sexual offending against children.
- A 25% utilitarian discount was considered appropriate where pleas of guilty were entered at an early stage, consistent with the principles in R v Thomson & Houlton and subsequent authorities on the value of guilty pleas in historical matters.
- Where a conviction appeal is added late and grounds are amended on multiple occasions, the Court may still grant leave where the Crown does not oppose the amendments and the interests of justice warrant consideration of the additional grounds.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 71, 76, 78
- Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- CT v R [2017] NSWCCA 15
- Goebel-McGregor v R [2006] NSWCCA 390
- Imbornone v R [2017] NSWCCA 144
- Magnuson v R [2013] NSWCCA 50
- Moon v R (2000) 117 A Crim R 497
- PM v R [2017] NSWCCA 108
- R v CTG [2017] NSWCCA 163
- R v Holyoak (1995) 82 A Crim R 502
- R v McLean (2001) 121 A Crim R 484
- R v MJR (2002) 54 NSWLR 368
- R v Qutami (2001) 127 A Crim R 369
- R v Roberts [2003] NSWCCA 309
- R v Sopher (1993) 70 A Crim R 570
- R v Thomas [2007] NSWCCA 269
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Wright v R [2016] NSWCCA 122