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17
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: Court of Criminal Appeal
Date: 9 March 2018
Judges: Basten JA; R A Hulme J; Hidden AJ

Background

The respondent was found guilty at trial in the Parramatta District Court of three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Each offence carried a maximum sentence of 14 years imprisonment and a standard non-parole period of seven years. The offending involved one act of oral penetration and two acts of vaginal penetration committed against a single complainant in the early hours of the morning, following a social gathering at which both parties had been drinking.

Judge Williams SC sentenced the respondent to concurrent terms of two years imprisonment on each count, then suspended each sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The respondent remained at liberty subject to the suspended sentence. The Director of Public Prosecutions filed a notice of appeal ten days later on the ground that the sentences were manifestly inadequate.

The Court of Criminal Appeal allowed the appeal by majority (Basten JA and R A Hulme J; Hidden AJ dissenting on the outcome, though agreeing that the suspension was manifestly inadequate). The majority differed on whether the concurrent structure of the sentences should also be disturbed, and the final orders reflected the approach of Basten JA as the presiding judge.

Legal Issues

  • Whether the sentences of two years imprisonment, served wholly concurrently and then suspended, were manifestly inadequate for three counts of sexual intercourse without consent following a trial.
  • Whether the sentencing judge misapplied the relevant pool of comparable sentencing cases by focusing on a subset of cases in which suspended sentences had been imposed.
  • Whether the sentencing judge erred in finding remorse as a mitigating factor in the absence of evidence satisfying s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge significantly understated the objective seriousness of the offending.
  • Whether delay in bringing the matter to finality was properly treated as a mitigating factor.
  • Whether the sentencing judge correctly applied the Edwards test for exceptional hardship to third parties.
  • Whether, if error was established, the Court should exercise its residual discretion not to intervene or to impose a less severe sentence than would otherwise be appropriate.

Decision

Use of precedent: The sentencing judge misapprehended how comparable cases should be used in the sentencing exercise (at [5]-[6]). Rather than surveying the general pattern of sentencing across all relevant cases, the judge isolated the 26 cases from a pool of 237 in which suspended sentences had been imposed, examining 10 of these in detail. The Judicial Commission statistics showed that of 47 cases involving conviction after trial for a single s 61I offence between 2010 and 2016, all but one resulted in a custodial sentence. That pattern was given no weight. Critically, only three of the 26 suspended sentence cases involved a conviction after trial, and three cases out of 237 do not constitute a relevant sentencing pattern (at [6]).

Remorse: The sentencing judge erred in treating remorse as a mitigating factor (at [8]-[11]). The respondent had not pleaded guilty, gave no evidence on sentence, and his affidavit contained no statement of remorse. The only reference was a passage in a letter from his birth mother saying he had "expressed great remorse" in private conversations. The prosecutor made no concession on remorse, and the respondent's counsel on appeal conceded there was no evidence of remorse as defined in s 21A(3)(i) of the Act. The court found the suggestion that the remorse finding led to no reduction in penalty was inconsistent with the sentencing judge's express statement treating it as a mitigating factor (at [11]).

Objective seriousness: The sentencing judge significantly understated the objective seriousness of the offending by accepting the defence's characterisation that it fell at the lower end of the range (at [12]-[14]). Several of the factors relied upon were overlapping, some were factually incorrect (including the finding of no physical violence or coercion), and the account of the complainant's evidence was compressed to four sentences while the respondent's rejected trial evidence was set out in far greater detail (at [14]-[17]). Additionally, the sentencing judge made no finding as to which basis of knowledge of lack of consent, actual knowledge or absence of reasonable grounds for belief in consent, applied to the respondent (at [79]).

Delay: Delay as such was not a proper mitigating factor and should not have been accepted as one (at [20]-[22]). The period on bail, if conditions were onerous, might have warranted some mitigation, but it did not justify imposing a suspended sentence where full-time imprisonment was otherwise indicated (at [22]).

Exceptional hardship: The sentencing judge either mistook the legal standard derived from R v Edwards or the facts in finding the highly exceptional threshold was satisfied (at [18]-[19]). Although the court noted that hardship to the respondent's family short of the Edwards threshold could still be taken into account as part of the subjective case, a finding that the exceptional hardship test was met on the evidence before the sentencing judge could not be sustained (at [18]-[19], [115]).

Manifest inadequacy and residual discretion: The majority held the suspension of the sentences rendered the outcome manifestly inadequate. Considerations of denunciation and general deterrence required a period of full-time custody (at [150]). Basten JA exercised the residual discretion to limit the Court's intervention to removing the suspension, preserving the two-year concurrent structure but declining to increase the aggregate term (at [31]-[33]). R A Hulme J would have imposed partial accumulation producing a total effective sentence of three years (at [43]-[44]). Hidden AJ, in dissent on the outcome, would have dismissed the appeal on the basis that the prospect of mandatory visa cancellation and deportation, and the consequent hardship to the family, justified declining to intervene (at [155]-[159]). The final orders followed Basten JA's approach as the presiding judge (at [45], [160]).

Orders Made

  • The appeal was allowed and the sentences imposed in the District Court were set aside.
  • The respondent was sentenced on each count to imprisonment for two years, comprising a non-parole period of 15 months and a balance of term of nine months, each sentence having commenced on 20 October 2017.
  • The non-parole period expires on 19 January 2019, whereupon the respondent becomes entitled to release pursuant to a statutory parole order.
  • The respondent was to be taken into custody forthwith.

Key Takeaways

  • A sentencing judge assessing whether to suspend a sentence for sexual intercourse without consent cannot properly limit the comparative analysis to the subset of cases in which suspended sentences were imposed. The correct approach surveys the broader pattern of sentencing, including Judicial Commission statistics showing the general prevalence of custodial outcomes for convictions after trial (at [6], [26]).

  • Penile penetration without consent will rarely fall at the low end of the objective seriousness spectrum. Non-consensual penetration carries a significant inherent element of coercion and will generally be degrading from the perspective of the victim, regardless of whether additional physical violence is separately proven (at [27]).

  • Absent real evidence of remorse, there must be a powerful basis before a suspended sentence is appropriate for an offence involving penile penetration. Where an offender contests the trial on a basis that wholly contradicts the complainant's account, the prospect of a remorse finding is constrained in practice, and the issue must be squarely confronted before a suspended sentence is imposed (at [29]-[30]).

  • Total concurrency across multiple offences forming a single course of conduct requires justification. Where no explanation is provided as to why no additional penalty is attracted for separate offences, the sentencing discretion may miscarry (at [28]).

  • Under the Edwards principles, exceptional hardship to third parties remains a high threshold, and hardship evidence that falls short of that threshold does not warrant suspension of an otherwise appropriate custodial sentence, though it may remain relevant as part of the offender's subjective case (at [18]-[19], [115]-[118]).

Legislation and Cases Referenced

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

Cases
- Bravo v R [2015] NSWCCA 302
- Butler v R [2012] NSWCCA 23
- Cahyadi R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Cheung v The Queen (2001) 209 CLR 1, [2001] HCA 67
- Church v R [2012] NSWCCA 149
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Cowling v R [2015] NSWCCA 213
- Day v R [2017] NSWCCA 192
- Dinsdale v The Queen (2000) 202 CLR 321, [2000] HCA 54
- Dipangkear v R [2010] NSWCCA 156
- Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
- Elmir v R [2009] NSWCCA 22
- Elshani v R [2015] NSWCCA 254
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- Faehringer v R [2017] NSWCCA 248
- Flick v R [2012] NSWCCA 170
- FP v R [2012] NSWCCA 182
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Greenwood v R [2014] NSWCCA 64
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Hopley v R [2008] NSWCCA 105
- House v The King (1936) 55 CLR 499
- Ihemeje v R [2012] NSWCCA 269
- King v R [2010] NSWCCA 202
- McCartney v R [2009] NSWCCA 244
- Mills v R [2017] NSWCCA 87
- Mulato v R (2006) NSWCCA 282
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Parente v R [2017] NSWCCA 284
- R v AA [2017] NSWCCA 84
- R v Alcazar [2017] NSWCCA 51
- R v CTG [2017] NSWCCA 163
- R v Daley [2010] NSWCCA 223
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- R v Hull [2016] NSWSC 634
- R v Isaacs (1997) 41 NSWLR 374
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Kertebani [2010] NSWCCA 221
- R v Macdonald; R v Maitland [2017] NSWSC 638
- R v Reeves [2014] NSWCCA 154
- R v Sharma [2017] NSWCCA 85
- R v Shrestha (1991) 173 CLR 48
- R v Tuhakaraina [2016] NSWCCA 81
- R v Van Ryn [2016] NSWCCA 1
- R v Wirth (1976) 14 SASR 291
- R v Zamagias [2002] NSWCCA 17
- R v Zerafa [2013] NSWCCA 222
- Sabapathy v R [2008] NSWCCA 82
- Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452
- Waugh (aka Willougby) v R [2010] NSWCCA 3