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Court of Criminal Appeal 27 September 2019

BM v R

[2019] NSWCCA 223

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE CAUSATIVE MENTAL DISORDER APPEAL ALLOWED APPLICANT RE

Citation: BM v R [2019] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 27 September 2019
Judges: Payne JA; Fullerton J; Bellew J

Background

The applicant, referred to as BM to protect the complainant's identity, pleaded guilty to four counts of sexual offending against a young female relative. The offending the subject of the appeal (Counts 1 and 2) involved sexual intercourse and an act of indecency committed against the complainant when she was four or five years old. BM was between 13 and 15 years of age at the time of that offending.

At first instance in the District Court, BM was sentenced to an aggregate term of 2 years and 6 months imprisonment with a non-parole period of 15 months for Counts 1 and 2. Separate Conditional Release Orders were imposed for Counts 3 and 4, which involved less serious sexual misconduct occurring in later years.

BM appealed to the Court of Criminal Appeal on two grounds, both directed at the aggregate sentence for Counts 1 and 2: first, that the sentencing judge failed to properly assess the objective seriousness of those offences, and second, that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge properly assessed the objective seriousness of Counts 1 and 2, having regard to BM's age at the time of offending and his mental disorder
  • Whether the aggregate sentence of 2 years and 6 months for Counts 1 and 2 was manifestly excessive
  • On re-sentencing: what aggregate term and non-parole period was appropriate, accounting for BM's youth, causative mental condition, early guilty plea, and the totality principle

Decision

The Court of Criminal Appeal allowed the appeal on Ground 1, finding that the sentencing judge had erred by failing to give sufficient weight to BM's age at the time of offending and to the causal relationship between his mental disorder and the offending conduct. The Court held that these two factors, taken together, ameliorated the objective seriousness of Counts 1 and 2 to a very significant extent, placing the offending at or near the bottom of the range of objective seriousness for offences of that kind.

Having found error on Ground 1, the Court found it unnecessary to determine whether the sentence was also manifestly excessive. The Court confirmed that the threshold for full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had nonetheless been crossed, as it had at first instance.

On re-sentencing, the Court applied a 25% discount for BM's early guilty plea and made a finding of special circumstances, resulting in a ratio of 50% between the aggregate head sentence and the non-parole period. The Court noted BM's youth and the need for a longer parole period to support rehabilitation. The Court also took into account that the conduct underlying Counts 1 and 2 occurred within a single episode, though it was not an isolated event in light of the later offending.

The Court recommended to Corrective Services NSW that BM be released forthwith, as the revised non-parole period of 9 months had expired by the date the orders were made.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence for Counts 1 and 2 set aside and replaced with an aggregate term of 1 year and 6 months, commencing 12 December 2018 and expiring 11 June 2020
  • Aggregate non-parole period of 9 months, commencing 12 December 2018 and expiring 11 September 2019 (BM first eligible for parole on 11 September 2019)
  • Indicative sentences: Count 1, 14 months; Count 2, 8 months
  • Finding of special circumstances made
  • Court recommended to Corrective Services NSW that BM be released forthwith

Key Takeaways

  • Where an offender was a young adolescent at the time of serious sexual offending, and where a mental disorder was causally connected to that offending, both factors must be given substantial weight when assessing objective seriousness. Insufficient attention to either can constitute sentencing error.
  • A causative mental disorder is a distinct consideration from general subjective factors: the Court of Criminal Appeal treated the causal link between BM's mental condition and the offending as directly reducing his moral culpability and the objective gravity of the conduct.
  • Even where offences fall at or near the lowest end of the range of objective seriousness, the s 5 threshold for full-time imprisonment may still be met. The Court affirmed that a custodial sentence remained appropriate on the re-sentencing.
  • Special circumstances findings are available where an offender's youth and rehabilitation needs justify a longer-than-standard parole period relative to the head sentence. The Court applied a 50% non-parole ratio on that basis.
  • In applying totality principles to contemporaneous offending, the Court distinguished between offences arising from a single episode (relevant to concurrence) and a pattern of non-isolated conduct across multiple counts (relevant to totality more broadly).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Paul Campbell v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- Tepania v R [2018] NSWCCA 247