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Court of Criminal Appeal 6 September 2019

Merkel v R

[2019] NSWCCA 212

Sexual offences

Citation: Merkel v R [2019] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 6 September 2019
Judges: Macfarlan JA, Johnson J, Wright J (all agreeing)

Background

The appellant was convicted after a jury trial of three serious sexual offences against a six-year-old child, committed in 2004. The offences included sexual intercourse with a child under 10 years, attempted sexual intercourse with a child under 10 years, and aggravated indecent assault. The victim was the daughter of the appellant's then-partner, and the offending occurred when he was entrusted to transport her from her grandmother's home to spend the night elsewhere.

The sentencing judge in the District Court imposed an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months, commencing 19 April 2018. The appellant, who had an intellectual disability, sought leave to appeal that sentence.

The central dispute on appeal concerned whether the sentencing judge had failed to properly account for the appellant's intellectual disability, whether special circumstances warranted adjustment of the standard parole ratio, and whether the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to reduce the assessment of moral culpability and objective seriousness on account of the appellant's intellectual disability
  • Whether the sentencing judge erred in declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have adjusted the statutory ratio between non-parole period and total sentence
  • Whether the aggregate sentence of 15 years imprisonment was manifestly excessive

Decision

Ground 1: Intellectual disability and moral culpability. The Court of Criminal Appeal confirmed that an intellectual disability can reduce moral culpability, and therefore bear on the severity of a sentence, only where a causal connection is established between the disability and the offending conduct. The sentencing judge had acknowledged the appellant's intellectual disability but found no such causal link. The Court found no error in that approach. The disability had been taken into account in other ways, including in the assessment of the purposes of specific deterrence and general deterrence.

Ground 2: Special circumstances. A finding of special circumstances under s 44 is discretionary. The appellant argued that his intellectual disability, the need for supervision and treatment on release, and his status as a first-time prisoner justified such a finding. The Court noted the sentencing judge had considered these matters and was not persuaded they warranted departure from the standard ratio. No error in the exercise of that discretion was demonstrated.

Ground 3: Manifest excess. The Court examined comparable sentences and concluded that the aggregate term was within the range available to the sentencing judge. The Court expressly distinguished the facts of this case from those in the earlier decision of R v Muldrock [2012] NSWCCA 108, where the offender's intellectual disability was found to bear directly on culpability in circumstances very different from those presented here. No misapplication of sentencing principle was established, and the sentence was not so far outside the available range as to demonstrate error.

The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not required to reduce its assessment of moral culpability on account of an offender's intellectual disability unless a causal connection between the disability and the offending conduct is established.
  • The finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a discretionary exercise; the absence of a formal finding does not constitute error where the sentencing judge has considered the relevant factors.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that intellectual disability may still be relevant to other sentencing purposes, such as the weight given to specific and general deterrence, even where it does not reduce moral culpability directly.
  • No error was established merely because the sentencing judge declined to follow the outcome in a comparable case involving an intellectually disabled offender; the facts of each case must be assessed individually, and the circumstances in Muldrock were held to be materially distinguishable.
  • Manifest excess requires a showing that the sentence was outside the range of sentences available, or that some misapplication of principle must have occurred; a disagreement with the result, standing alone, does not satisfy that threshold.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Muldrock; Muldrock v R [2012] NSWCCA 108
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Roach v R [2019] NSWCCA 160
- Stines v R [2019] NSWCCA 115
- Aslan v R [2014] NSWCCA 114
- AWKO v R [2010] NSWCCA 90
- Kite v Regina [2009] NSWCCA 12
- MLP v R [2006] NSWCCA 271; [2014] NSWCCA 183
- R v AJP [2004] NSWCCA 150 A Crim R 575
- R v Egan [2016] NSWCCA 285
- RR v R [2011] NSWCCA 235