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Court of Criminal Appeal 2 August 2019

Tindall v R

[2019] NSWCCA 136

Sexual offences
CRIMINAL LAW APPEALS OBJECTIVE SERIOUSNESS PRINCIPLE OF PROPORTIONALITY WHETHER SENTENCE MANIFESTLY EXCESSIVE SENTENCING FOR STANDARD NON

Citation: Tindall v R [2019] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 2 August 2019
Judge(s): Simpson AJA, Bellew J, Campbell J

Background

The applicant was convicted in the District Court of two sexual offences against a complainant who used a wheelchair. The first offence, under s 61J(1) of the Crimes Act 1900 (NSW), involved the applicant taking the complainant to a dark, secluded location under the false pretence of directing her to a taxi rank, where he then subjected her to forced fellatio despite her repeated resistance. The second offence, under s 61M(1), involved aggravated indecent assault committed immediately after the first.

After both acts, the applicant walked away and abandoned the complainant. She had alighted from her wheelchair and was lying on the ground, distressed. The applicant looked back at her and continued walking.

The District Court sentenced the applicant to an aggregate term of imprisonment, finding both offences to be "slightly above mid-range" of objective seriousness. The applicant sought leave to appeal on two grounds: that the sentencing judge erred in assessing the objective gravity of the offences, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective gravity of the two offences, including whether the absence of certain aggravating factors should have reduced the seriousness of those offences
  • Whether forced fellatio is inherently less serious than offences involving anal or vaginal penetration, such that a lower assessment of objective gravity was required
  • Whether the aggregate sentence imposed was manifestly excessive

Decision

The Court of Criminal Appeal addressed the first ground by firmly rejecting the proposition that the absence of aggravating factors reduces the gravity of an offence. The Court reaffirmed a well-established principle, expressed succinctly in earlier decisions, that an offence is not made less serious simply because it could have been worse. Arguments pointing to the absence of threats, the limited force used, and the fact that the applicant did not ejaculate were rejected as a basis for lowering the objective seriousness assessment.

The Court also rejected the suggestion that forced fellatio is inherently less serious than other forms of sexual intercourse. There is no hierarchy of sexual offences ranked by the type of penetration or sexual connection involved. The definition of "sexual intercourse" in s 61HA of the Crimes Act treats all forms equivalently, and objective seriousness must be assessed on the entirety of the facts and circumstances of the specific case.

The Court found no error in the sentencing judge's assessment of either offence as "slightly above mid-range." The immediate circumstances of the s 61J offence, including the secluded location, the applicant's persistence despite the complainant's resistance, and his orders to her during the assault, supported that finding. The s 61M offence was similarly assessed without error, compounded by the complainant's complete vulnerability in the same location and the applicant's callous abandonment of her immediately afterwards.

On the question of manifest excess, the judges were not unanimous. Simpson AJA and Bellew J found no error warranting intervention, while Campbell J concluded the sentence imposed for Count 1 was excessive and proposed a reduced aggregate sentence of 8 years imprisonment with a non-parole period of 6 years. Leave to appeal was granted and the appeal was allowed on that basis, with the sentence varied accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence passed in the District Court on 25 July 2017 quashed
  • Applicant sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 6 years, commencing 21 May 2015 and expiring 20 May 2021, with an additional term of 2 years commencing 21 May 2021 and expiring 20 May 2023
  • First eligible for release on parole on 20 May 2021

Key Takeaways

  • The Court of Criminal Appeal reaffirmed that the absence of an aggravating factor does not diminish the objective gravity of an offence. Pointing to factors that would have made offending worse, but which were not present, is not a valid basis for mitigation.
  • No hierarchy exists among the forms of sexual intercourse defined under s 61HA of the Crimes Act 1900 (NSW). Objective seriousness is determined by the facts and circumstances of the individual case, not by the type of penetration or sexual connection involved.
  • Post-offence conduct, such as the applicant's abandonment of a vulnerable, distressed complainant, was found to cast light on the offender's attitude and callous indifference, and was treated as compounding the gravity of the offences.
  • Where a sentencing court carefully identifies the facts of each offence separately and then arrives at a combined assessment, that approach does not necessarily constitute impermissible conflation of distinct offences.
  • Although the majority found no error in the original sentence, Campbell J's minority view led to a modest reduction in the aggregate term, illustrating that sentencing appeals in this context turn closely on the particular weight given to individual facts and subjective matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61J(1), 61M(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68(A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), Div 3 of Pt 3, Div 1A of Pt 4

Cases:
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- R v Dodd (1991) 57 A Crim R 349
- R v Gebrail (Unrep, 18/11/94, NSWCCA)
- Salafia v R [2015] NSWCCA 141
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Saddler v R [2009] NSWCCA 83
- Bravo v R [2015] NSWCCA 302
- Mills v R [2017] NSWCCA 87
- R v CTG [2017] NSWCCA 163
- Faehringer v R [2017] NSWCCA 248
- R v AJP [2004] NSWCCA 434
- R v Gavel [2014] NSWCCA 56
- Doe v R [2013] NSWCCA 248
- Mooney v R [2016] NSWCCA 231
- Panchal v R [2014] NSWCCA 275