Citation: Rainbow v R [2018] NSWCCA 42
Court: Court of Criminal Appeal (NSW)
Date: 21 March 2018
Judges: Beazley P, Garling J, Hidden AJ
Background
The applicant pleaded guilty in the District Court to aggravated sexual intercourse with a child aged between 14 and 16 years, with the circumstance of aggravation being that the victim had a cognitive impairment, contrary to s 66C(4) and (5)(f) of the Crimes Act 1900. The offence carried a maximum of 12 years' imprisonment and a standard non-parole period of 5 years. A related offence of aggravated indecent assault was taken into account on a Form 1 (a mechanism allowing additional offences to be considered during sentencing without recording a separate conviction).
The victim was a 14-year-old girl with an intellectual disability who had come to stay at the applicant's home at Riverstone. The applicant, then aged 36, was known to the person who had brought the victim there. In the early hours of the morning, the applicant entered the room where the victim was lying on a mattress, removed her clothing, and had intercourse with her. He stopped when she told him to, but immediately afterwards rubbed her vagina, which formed the basis of the Form 1 offence.
The District Court sentenced the applicant to 6 years' imprisonment with a non-parole period of 4 years, commencing 27 November 2015. The applicant sought leave to appeal on two grounds: that the sentencing judge wrongly characterised the offending as involving a breach of trust, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by identifying a "breach of trust" as a factor increasing the objective seriousness of the offence, given that no formal or recognised relationship of trust existed between the applicant and the victim
- Whether the total sentence of 6 years with a 4-year non-parole period was manifestly excessive in all the circumstances
Decision
Breach of trust. The Court of Criminal Appeal accepted that the sentencing judge had erred in characterising the circumstances as involving a breach of trust. Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 lists abuse of a position of trust or authority as a statutory aggravating factor. However, no formal relationship of trust existed between the applicant and the victim. The mere fact that the victim was staying in his home, without more, was insufficient to establish a recognised trust relationship of the kind contemplated by the legislation. The Court noted that the victim's cognitive impairment, and the applicant's awareness of it, was already the statutory circumstance of aggravation built into the charge itself, and could not be double-counted as an additional sentencing aggravant under s 21A.
Manifest excess. The Court also accepted the second ground. It acknowledged that sentences of considerable severity are appropriate for sexual offences against children, particularly where the child has a cognitive impairment. However, the applicant's subjective circumstances were not unfavourable: he had expressed genuine remorse, had reasonable prospects of rehabilitation, had no prior sexual offences, and did not demonstrate a dangerous propensity toward this type of offending. The Court was satisfied that even accounting for the Form 1 offence, a 6-year sentence was beyond the proper range of sentencing discretion.
Resentencing. Hidden AJ, with Beazley P and Garling J agreeing, assessed the objective seriousness of the offending as slightly below mid-range, consistent with the original finding. A starting point of 5.5 years was adopted, reduced by 25% to reflect the utilitarian value of the guilty plea, producing a total term of 4 years. Special circumstances were found to justify a non-parole period shorter than the statutory ratio, to support the applicant's rehabilitation.
Orders Made
- Leave to appeal granted; appeal allowed
- Sentence imposed in the District Court quashed
- In lieu, the applicant sentenced to a non-parole period of 2 years and 6 months, commencing 27 November 2015 and expiring 26 May 2018
- Balance of term of 1 year and 6 months, commencing 27 May 2018 and expiring 26 November 2019
- Applicant eligible for release on parole on 27 May 2018
Key Takeaways
- A sentencing court cannot treat the mere fact that a victim was staying in an offender's home as constituting a "breach of trust" under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 without identifying a recognised relationship of trust or authority.
- Where a statutory circumstance of aggravation (here, the victim's cognitive impairment) is already an element of the offence as charged, it cannot also be applied as a separate aggravating factor under s 21A to increase the sentence further.
- The Court of Criminal Appeal confirmed that general deterrence remains a significant sentencing consideration for sexual offences against children with cognitive impairments, but personal deterrence carries less weight where an offender lacks a prior history of similar offending.
- Genuine remorse, a favourable psychological assessment, and the absence of a dangerous sexual offending history are subjective factors capable of moderating an otherwise severe sentence, even for serious offences of this kind.
- In finding manifest excess, the Court reduced the total effective sentence from 6 years to 4 years, with the non-parole period reduced from 4 years to 2 years and 6 months, reflecting the combined weight of the applicant's plea discount and favourable subjective case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61H, 61M, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Cowling v R [2015] NSWCCA 213
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v JF [2017] NSWCCA 217
- R v Nelson [2016] NSWCCA 130
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- Wakeling v R [2016] NSWCCA 33