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Court of Criminal Appeal 22 March 2017

Kearsley v Regina

[2017] NSWCCA 28

Also reported as (2017) 265 A Crim R 233
Sexual offencesAssault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE APPELLANT RESENTENCED CRIMINAL LAW SENTENCING SENTENCING

Citation: Kearsley v Regina [2017] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 22 March 2017
Judges: Macfarlan JA, Harrison J, Schmidt J

Background

The appellant was a highly respected senior medical professional who, in November 2013, arranged a dinner with a junior colleague under the pretence of discussing her career advancement. He administered an intoxicating substance to her without her knowledge and then committed an indecent assault upon her. He was charged with two offences: administering an intoxicating substance with intent to commit an indecent assault (s 38 of the Crimes Act 1900) and indecent assault (s 61L of the Crimes Act 1900).

In the District Court, the sentencing judge imposed a sentence. The Crown appealed on the ground, among others, that the sentencing judge had failed to properly assess the objective seriousness of the offences. The appellant had an exceptionally strong subjective case: extensive community service, genuine remorse, a guilty plea, low likelihood of reoffending, significant personal losses including his career, and diagnosed psychiatric illness at the time of the offending.

The Court of Criminal Appeal granted leave to appeal, allowed the appeal, set aside the District Court sentence, and resentenced the appellant.

  • Whether the sentencing judge erred by failing to properly assess the objective seriousness of the offences
  • Whether the appellant's psychiatric illness reduced his moral culpability where the illness was not causally connected to the commission of the offences
  • Whether the psychiatric illness diminished the significance of general deterrence in sentencing
  • Whether, despite an exceptionally strong subjective case, a non-suspended custodial sentence was required
  • What weight should be given to extra-curial punishment (losses such as career, reputation, and adverse media publicity) in sentencing

Decision

The Court unanimously upheld the first ground of appeal, finding that the sentencing judge had not properly assessed the objective seriousness of the offences. All three judges characterised the s 38 offence (administering an intoxicating substance) as moderate in objective seriousness and the s 61L offence (indecent assault) as low to moderate, but emphasised that both offences remained serious. The offending involved a deliberate act by a senior professional who exploited a position of trust and an informal mentoring relationship to drug and assault a junior colleague.

On psychiatric illness and moral culpability, the Court applied the framework in Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1. Because the sentencing judge had found no material causal link between the appellant's depressive condition and the commission of the offences, that condition did not reduce his moral culpability in any significant way. The Court accepted, however, that the psychiatric condition was relevant in a limited sense: it explained the context in which the offending occurred, it meant a custodial sentence would weigh more heavily on him, and it had some (modest) bearing on general deterrence.

On general deterrence, the Court held it remained a significant sentencing consideration. Drawing on R v Engert (1995) and subsequent decisions, the Court reasoned that ordinary members of the community would not expect a person suffering a depressive condition that played no significant causative role in the offending to receive a substantially reduced sentence for serious offences of this kind.

The Court unanimously held that no penalty other than imprisonment was appropriate and that the sentence could not be suspended. The appellant's strong subjective case, including genuine remorse, rehabilitation, loss of profession and standing, and the hardship experienced in custody, was fully acknowledged. However, the Court found that the nature of the offending, a deliberate drugging followed by a sexual assault in a serious abuse of trust, required a non-parole period reflecting actual time in full-time custody.

Orders Made

No orders were made in this decision.

Key Takeaways

  • An offender's psychiatric illness does not reduce moral culpability for sentencing purposes unless there is a material causal connection between that illness and the commission of the offence. Where the sentencing judge finds the link "at best tenuous," only very limited weight attaches to the condition on culpability grounds.

  • Under the framework in De La Rosa, a mental condition may still be relevant to sentencing in other ways, including rendering a custodial sentence more burdensome and having some effect on the weight given to general deterrence, even where it did not cause the offending.

  • General deterrence is not automatically diminished merely because an offender has a diagnosed psychiatric condition. The Court of Criminal Appeal confirmed that the extent to which general deterrence is moderated depends on whether ordinary members of the community would expect a meaningfully different sentence given the nature of the illness and its relationship to the offending.

  • Even an exceptionally strong subjective case, including exemplary prior conduct, genuine remorse, rehabilitation, guilty plea, and significant collateral consequences such as loss of career and adverse publicity, does not override the need to give adequate weight to the objective seriousness of the offending. Subjective considerations must not cause inadequate weight to be given to objective circumstances.

  • Where offending involves a deliberate breach of trust by a person in a position of authority or mentorship, that circumstance is a weighty objective factor that the sentencing court must properly assess alongside subjective considerations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 38, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Power v The Queen (1974) 131 CLR 623
- Dodd v The Queen (1991) 57 A Crim R 349
- Iskander v R [2013] NSWCCA 235
- Phanekham v R [2015] NSWCCA 295
- Baumer v The Queen (1988) 166 CLR 51
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Johnson v R (2004) 205 ALR 346; [2004] HCA 15
- Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150