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Court of Criminal Appeal 3 May 2017

Sharma v R

[2017] NSWCCA 85

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE EXERCISE OF SENTENCING DISCRETION APPEAL ALLOWED

Citation: Sharma v R [2017] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 3 May 2017
Judges: Beazley P, Walton J, R A Hulme J

Background

The applicant was convicted of four offences, including two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), one count of assault occasioning actual bodily harm, and one count of indecent assault. The offences were committed against two separate complainants, both tourists who had connected with the applicant through a website matching tourists with local accommodation hosts.

In the District Court, the applicant was sentenced on 22 April 2016 to an aggregate term of 8 years imprisonment with a non-parole period of 5 years 6 months. The indicative sentences for each of the two s 61I offences were 6 years 6 months with non-parole periods of 4 years 6 months.

The applicant sought leave to appeal against sentence on three grounds: that the sentencing judge erred in assessing the two s 61I offences as "serious offences of their type," that the judge failed to make a proper assessment of objective seriousness, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the two s 61I offences as "serious offences of their type"
  • Whether the sentencing judge made a proper assessment of the objective seriousness of the s 61I offences
  • Whether the sentencing judge erred by taking into account, in assessing objective seriousness, that the applicant offended while on conditional liberty (a good behaviour bond)
  • Whether the aggregate sentence was manifestly excessive

Decision

Grounds 1 and 2: Objective seriousness

The Court of Criminal Appeal found that the sentencing judge's assessment of objective seriousness was "vague" but not erroneous. The applicant argued that the relatively short duration of the assaults mitigated their objective seriousness, but the Court held that duration carries only limited significance. The absence of particular aggravating factors did not constitute error, as a sentencing judge is not required to enumerate every factor that is absent.

Ground 2 (specific error): Conditional liberty

A discrete error was identified within the objective seriousness assessment. The sentencing judge had referred to the applicant offending while on conditional liberty (the breach of a good behaviour bond) as a factor bearing on the objective gravity of the s 61I offences. The Court held this was wrong in principle. Offending while on conditional liberty is a personal aggravating factor relevant to the offender's subjective circumstances, not a matter that increases the objective seriousness of the offence itself. This error was sufficient to enliven the Court's re-sentencing jurisdiction.

Re-exercise of sentencing discretion and manifest excess

Having found error, the Court re-exercised the sentencing discretion. The pleas of guilty were entered at an extremely late stage, and the Court reduced the discount from 10 per cent to 5 per cent to reflect their limited utilitarian value. Applying the totality principle, and acknowledging that the offences concerned two separate victims and involved distinct criminality across the counts, the Court arrived at a reduced aggregate term.

Orders Made

  • Leave to appeal granted and the appeal against sentence allowed.
  • The sentence imposed in the District Court on 22 April 2016 was quashed.
  • The applicant was re-sentenced to an aggregate term of imprisonment of 7 years 4 months with a non-parole period of 5 years, dating from 24 July 2015, with the non-parole period expiring on 23 July 2020.

Key Takeaways

  • A sentencing judge commits a legal error by treating an offender's status on conditional liberty as a factor that increases the objective seriousness of an offence. Conditional liberty is a subjective aggravating circumstance personal to the offender, not a characteristic of the offence itself.
  • Vagueness in an assessment of objective seriousness does not, without more, constitute appellable error. The Court of Criminal Appeal declined to interfere with the overall seriousness finding despite imprecise language in the judge's remarks.
  • The relatively short duration of a sexual assault carries only limited weight in the assessment of objective gravity. Duration is one relevant consideration among many, and brevity does not substantially reduce the severity of such offences.
  • A sentencing judge is not required to expressly catalogue aggravating factors that are absent. Failure to mention factors that did not apply did not constitute error in this case.
  • Where pleas of guilty are entered at an extremely late stage, the utilitarian discount may be reduced significantly. The Court of Criminal Appeal assessed a 5 per cent discount, rather than the 10 per cent allowed below, on the basis that late pleas provide only marginal utilitarian value.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 9, 44(2B)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Aldous v R [2012] NSWCCA 153
- Boney v R [2015] NSWCCA 291
- Cowling v R [2015] NSWCCA 213
- House v The King [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- McCabe v R [2016] NSWCCA 7
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Daley [2010] NSWCCA 223
- R v Gavel [2014] NSWCCA 56
- R v Koloamatangi [2011] NSWCCA 288
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- Zreika v R [2012] NSWCCA 44