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Court of Criminal Appeal 19 August 2019

SW v R

[2019] NSWCCA 194

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE WHERE THE OFFENDING WAS SIGNIFICANT APPEAL DISMISSED

Citation: SW v R [2019] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 19 August 2019
Judges: Bathurst CJ, Bell P, Davies J

Background

The applicant pleaded guilty in the Wollongong Local Court to seven sexual offences, with three further offences taken into account on a Form 1. The offending occurred between 2001 and 2002 and involved the applicant's stepbrother, who was aged 10 and 11 at the time. The applicant was 15 and 16 years old when the offending took place. The two boys were stepbrothers living in the same household, and the offending involved elements of threat and coercion.

The complainant did not report the offending until November 2016, approximately 16 years after it occurred. The applicant was arrested and charged in April 2017 following a recorded telephone conversation in which he made partial admissions. He pleaded guilty and was sentenced in September 2018 by Judge Haesler SC to an aggregate term of three years' imprisonment with a non-parole period of 18 months.

The applicant sought leave to appeal that sentence, arguing it was manifestly excessive given his age at the time of offending and the lengthy delay in prosecution. An extension of time was also required, as the Notice of Application was filed approximately one week after the relevant deadline.

  • Whether the sentencing judge gave sufficient weight to the applicant's youth at the time of offending and the approximately 16-year delay in prosecution
  • Whether the resulting sentence was manifestly excessive
  • Whether an extension of time to file the appeal should be granted

Decision

The Court granted the extension of time, noting the delay was brief (less than one week) and adequately explained. Leave to appeal was also granted given the genuine significance of the youth and delay issues.

On the substantive ground of manifest excess, Davies J (with whom Bathurst CJ and Bell P agreed) identified several factors that substantially diminished the mitigating force of the delay. The offending was serious: the charges were representative of a broader pattern of conduct, the applicant exploited both the age gap and the position of trust he held as the older stepbrother, and the offending involved threats and coercion. The applicant was 15 or 16 at the time, not younger.

The applicant's post-offence conduct further reduced the weight normally given to delay and rehabilitation. Between 2004 and 2013 he accumulated a criminal record that included offences of violence, drug offences, driving while disqualified, and breaches of apprehended violence orders. He had been placed on conditional liberty on multiple occasions and had been imprisoned for breach. The Court noted that under the principles in R v Todd, one of the principal reasons for mitigating a sentence in cases of extended delay is to recognise rehabilitation in the intervening period. That basis was largely absent here, at least until 2013.

Applying the test from Hughes v R, the Court concluded the sentence was not unreasonable or plainly unjust and was not so far outside the available range as to indicate error. The appeal was dismissed.

Orders Made

  • Extension of time for leave to appeal granted to 25 March 2019
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the mitigating effect of delay in prosecuting childhood sexual offending is substantially reduced where the offender has not led a blameless life in the intervening period.
  • A key rationale for discounting sentences due to delay is the recognition of rehabilitation: where an offender's post-offence conduct includes ongoing criminality, that basis for mitigation is significantly weakened.
  • The representative nature of offences, the presence of threats and coercion, and exploitation of a position of trust within a household are all factors that can elevate the seriousness of sexual offending and counterbalance mitigating circumstances such as youth.
  • Under the test established in Hughes v R [2018] NSWCCA 2, an appeal based on manifest excess will only succeed where the sentence is unreasonable or plainly unjust, or so far outside the available range as to indicate error.
  • The absence of further sexual offending after the index offences does not automatically establish rehabilitation sufficient to attract significant sentencing discount, where other criminal conduct has continued in the intervening years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Cases:
- Hughes v R [2018] NSWCCA 2
- R v Todd [1982] 2 NSWLR 517
- RL v R [2015] NSWCCA 106