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15
Court of Criminal Appeal 9 March 2018

R v Shortland

[2018] NSWCCA 34

Sexual offences
CRIME SENTENCE SENTENCES FULLY CONCURRENT SENTENCES SUSPENDED RESIDUAL DISCRETION TO INTERVENE CRIME SENTENCING

Citation: R v Shortland [2018] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 9 March 2018
Judges: Basten JA at [1]; R A Hulme J at [37]; Hidden AJ at [46]

Background

The respondent was convicted after trial on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. The District Court sentenced the respondent to 2 years imprisonment on each count, with all three sentences imposed concurrently and then fully suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Director of Public Prosecutions filed an appeal ten days after sentencing, arguing the sentences were manifestly inadequate. The respondent had denied the offences at trial, giving evidence contradicting the complainant's account, which the jury must have rejected.

The respondent had no significant prior criminal history. A complicating factor was that the respondent held a visa, and a custodial sentence would trigger automatic cancellation of that visa with significant consequences for him and his family.

  • Whether the sentences imposed were manifestly inadequate, warranting appellate intervention
  • Whether the sentencing judge correctly identified and applied sentencing precedents for offences under s 61I
  • Whether the sentencing judge erred in treating remorse as a mitigating factor when no proper evidentiary basis for remorse existed
  • Whether the sentencing judge correctly assessed the objective seriousness of the offending
  • Whether the court should exercise its residual discretion to decline to re-sentence even if manifest inadequacy was established, having regard to the consequences of imprisonment for the respondent (including visa cancellation and deportation)
  • Whether exceptional hardship to the respondent's family and the delay in proceedings were relevant considerations

Decision

The majority (Basten JA and R A Hulme J) found that the sentences were manifestly inadequate and allowed the appeal. Three distinct errors in the sentencing judge's reasoning were identified.

First, the sentencing judge misapprehended the role of precedent. Rather than focusing on the pool of 47 cases decided after trial under s 61I (in which all but one resulted in a custodial sentence), the judge drew comparisons from a broader pool that included guilty pleas and cases with very different features. Only three of those cases involved a conviction after a not guilty plea, and the court found this pattern was insufficient to constitute a relevant sentencing trend supporting a non-custodial outcome.

Second, the sentencing judge erroneously treated remorse as a mitigating factor. There was no evidence of remorse as defined under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. The judge had also mistakenly concluded that the prosecution had conceded remorse as a mitigating factor, when in fact the prosecutor had expressly argued the opposite. The only material was a letter from the respondent's mother relaying his private statements, which the Director described as equivocal at best.

Third, the sentencing judge understated the objective seriousness of the offending. The judge adopted factors put forward by defence counsel without critically assessing their accuracy or materiality, and several of those factors significantly overlapped with one another. The court found the conduct should not have been characterised as sitting at the low end of the range. Hidden AJ, in dissent on the outcome, agreed that manifest inadequacy was established but would have exercised the residual discretion, derived from Green v The Queen (2011) 244 CLR 462, to decline to re-sentence on the basis that the certainty of visa cancellation and the prospect of deportation meant that imprisoning the respondent would come at too high a cost in terms of justice to the individual. The majority declined to exercise that discretion.

Orders Made

• The appeal would be dismissed
• The orders of the Court should be those proposed by Basten JA

Key Takeaways

  • A conviction for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) following a trial will ordinarily attract a custodial sentence. Non-custodial sentences are appropriate only in unusual or exceptional circumstances, a principle the Court of Criminal Appeal confirmed derives from earlier authority in Sabapathy v The Queen and is reflected in Judicial Commission statistics.

  • Sentencing courts must identify a genuinely comparable pool of precedent cases. Drawing comparisons from a broad pool that includes guilty pleas, when the case proceeded to trial, will misrepresent the relevant pattern of sentencing and constitutes an identifiable error.

  • Remorse cannot be treated as a mitigating factor without a proper evidentiary foundation. A third party's account of private statements by the offender is, at best, equivocal and does not satisfy the standard under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Objective seriousness must be assessed against the evidence the jury accepted, not merely against factors advanced by defence counsel. A sentencing court must evaluate the materiality and accuracy of those factors and cannot simply adopt them wholesale.

  • The residual discretion to decline to re-sentence even after finding manifest inadequacy (drawn from Green v The Queen) is available but narrow. The majority declined to exercise it here, though Hidden AJ in dissent found that the certainty of visa cancellation and potential deportation made imprisonment come at too high a cost in terms of justice to the individual.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A, 44, 54A, 54B, 54C; Pt 4, Div 1A
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Criminal Appeal Act 1912 (NSW), ss 5D, 21A
- Criminal Procedure Act 1986 (NSW), s 306I
- Migration Act 1958 (Cth), ss 501, 501CA
- Crimes Act 1914 (Cth), s 16A

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
- Sabapathy v The Queen [2008] NSWCCA 82
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Butler v R [2012] NSWCCA 23
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- Faehringer v R [2017] NSWCCA 248
- Day v R [2017] NSWCCA 192