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Court of Criminal Appeal 9 October 2019

Boatswain v R

[2019] NSWCCA 238

Sexual offences
CRIMINAL LAW ALLEGED MANIFEST EXCESS

Citation: Boatswain v R [2019] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 9 October 2019
Judge(s): Payne JA, Fullerton J, Adamson J (unanimous)

Background

The applicant pleaded guilty in the District Court to seven sexual offences against two child victims, committed over a period of approximately seven years beginning in 1982. The victims were sisters of the applicant's long-term partner, and both lived with or regularly visited the applicant's household during their childhoods. The offending ranged from indecent assault against a 10-year-old to repeated acts of non-consensual sexual intercourse against both victims when aged 14.

The sentencing judge imposed an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years. A discount of 10 to 15 per cent was applied across the indicative sentences to reflect the guilty pleas.

The applicant sought leave to appeal on two grounds: that the sentencing judge failed to properly apply the principle from Bugmy v The Queen concerning the relevance of a disadvantaged background, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to the applicant's disadvantaged background, as required by the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571
  • Whether the aggregate sentence of 15 years with a 10-year non-parole period was manifestly excessive in all the circumstances

Decision

On the first ground, the Court found that the sentencing judge had expressly acknowledged and applied the Bugmy principle. The judge had identified the applicant's background, accepted it as a mitigating factor, and treated it as reducing his moral culpability. No error was established in the application of that principle, and the ground was rejected.

On the second ground, the Court emphasised that sentencing involves the exercise of a discretion guided by multiple competing considerations, including the objective seriousness of the offending, the subjective circumstances of the offender, and purposes such as deterrence, punishment, and rehabilitation. The maximum penalty serves as a relevant guidepost, and care must be taken in drawing direct comparisons with sentences imposed on different offenders, given that subjective and objective circumstances necessarily vary between cases.

The Court noted the gravity of the offending: it spanned approximately seven years, involved two vulnerable victims who were at the applicant's mercy due to his relationship with their sister, and included a particularly serious aggravating feature. The applicant had continued to offend against the second victim despite knowing that the first victim's complaints had not been believed by the family or acted upon by authorities. The length and nature of the offending, and the number of victims, bore significantly on the totality of the sentence.

The Court concluded that the aggregate sentence fell within the range open to the sentencing judge, that the result did not indicate a miscarriage of the sentencing discretion, and that the second ground was therefore not made out.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Bugmy principle, which requires a sentencing court to take an offender's disadvantaged background into account as potentially reducing moral culpability, had been correctly applied by the District Court judge on the facts.
  • No error arises from a sentencing judge's application of Bugmy merely because an applicant contends insufficient weight was given to that background; the judge must be shown to have failed to apply the principle at all, or to have applied it incorrectly.
  • In dismissing the manifest excess ground, the Court reiterated that the sentencing discretion involves weighing numerous factors, and that the maximum penalty operates as a relevant guidepost rather than a ceiling defining the ordinary range.
  • Direct comparisons between sentences across different offenders carry limited utility, given that the subjective and objective circumstances of each case are necessarily distinct (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520).
  • Aggravating features particular to this case, including the duration of offending, the vulnerability of two child victims within a family setting, and the continuation of abuse against a second victim after complaints by the first went unaddressed, supported the imposition of a significant aggregate term and non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39