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8
Court of Criminal Appeal 7 December 2018

Dawkins v R

[2018] NSWCCA 278

Sexual offences
CRIME SENTENCING YEAR OLD VICTIM AND HER 4 YEAR OLD SISTER

Citation: Dawkins v R [2018] NSWCCA 278
Court: Court of Criminal Appeal, NSW
Date: 7 December 2018
Judge(s): Basten JA; McCallum J; Bellew J

Background

The appellant pleaded guilty to four counts of aggravated sexual intercourse with a person aged between 10 and 14 years, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the victim was under his authority within the meaning of s 66C(5)(d). The offences occurred between April and October 2016. At the time, the appellant was 21 years old and the victim was 12.

The appellant was a family friend and unpaid casual babysitter who had developed a close relationship with the victim and her family. The offending came to light when the victim's mother discovered her at home with the appellant on the evening of 28 October 2016. The following day, the appellant voluntarily attended a police station and made full admissions, at a point when the victim had denied sexual intercourse had occurred.

At first instance, the sentencing judge imposed an aggregate term of 7 years' imprisonment with a non-parole period of 4 years and 3 months, applying a combined 40% discount for an early guilty plea and substantial assistance to authorities. The appellant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentencing judge's assessment of the objective seriousness of the offences, placing them just below the mid-range, was reasonably open on the facts
  • Whether the sentencing judge gave adequate weight to the appellant's youth and emotional immaturity in assessing his moral culpability
  • Whether colloquial language used by the sentencing judge, including references to the "incredible seriousness" of the offending and the "terrible trauma" to the victim's family, reflected any error in the objective assessment of seriousness
  • The proper application of the principles in BP v R regarding emotional immaturity in young adult offenders

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that a lesser sentence was warranted. McCallum J (with whom Bellew J agreed) concluded that the sentencing judge had not given adequate weight to the appellant's immaturity and arrested emotional development, which were found to be significant factors in the commission of the offences.

Basten JA added further observations about the sentencing judge's use of language. His Honour noted that repeated references to the "incredible seriousness" of the offending appeared to be colloquial expressions intended to explain the justification for imprisonment, rather than a judicial assessment of objective seriousness for sentencing purposes. Similarly, the reference to trauma suffered by the victim's family was not treated as properly reflecting objective seriousness.

On the question of immaturity, Basten JA clarified the principle from BP v R. The statements in that case about emotional development in young adults were not intended as binding legal propositions of general application; rather, the majority in BP had placed weight on the actual state of emotional development revealed by the evidence in each particular case. His Honour cautioned against conflating legal capacity with emotional maturity for sentencing purposes, and against being too ready to discount an offender's youth simply because the offender had lived an adult lifestyle.

McCallum J found that the psychological evidence and the appellant's history of depression supported the conclusion that immaturity and arrested emotional development were significant contributors to the offending. The Court re-sentenced the appellant to an aggregate term of 5 years' imprisonment with a non-parole period of 2 years and 6 months, reflecting both the reduced weight given to culpability and the need for a substantial period of supervised parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and the sentence imposed at first instance quashed
  • Appellant re-sentenced to an aggregate term of imprisonment for 5 years with a non-parole period of 2 years and 6 months, commencing 29 October 2016
  • First date eligible for release on parole: 28 April 2019
  • Sentence expiry: 28 October 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that colloquial language used by a sentencing judge, such as describing offending as "incredibly serious," does not necessarily reflect a formal judicial finding about objective seriousness for the purposes of appellate review.

  • Principles derived from BP v R regarding emotional immaturity in young adult offenders are not binding legal rules of general application; they require case-specific inquiry into the actual state of emotional development revealed by the evidence before the sentencing court.

  • Courts should not too readily discount an offender's youth simply because that offender has held employment, maintained adult relationships, or otherwise conducted an adult lifestyle at the time of the offending.

  • Where immaturity and arrested emotional development are established by evidence as significant factors in serious sexual offending, those matters can warrant both a materially shorter custodial term and a substantial period of post-release supervision.

  • A 40% combined discount for an early guilty plea and substantial assistance to authorities (including voluntary self-reporting at a time when the victim had denied the conduct) was accepted as appropriate in this case, consistent with established sentencing principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M(1), 61M(2), 66C(2), 66C(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Cohen v R [2011] NSWCCA 165
- Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
- Lee v R [2016] NSWCCA 66
- Mulato v R [2006] NSWCCA 282
- R v Nelson [2016] NSWCCA 130
- R v Schwenke [2004] NSWCCA 289
- Wakeling v R [2016] NSWCCA 33