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Court of Criminal Appeal 1 November 2019

O’Sullivan v R

[2019] NSWCCA 261

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 6 YEARS MANIFEST EXCESS NOT ESTABLISHED

Citation: O'Sullivan v R [2019] NSWCCA 261
Court: Court of Criminal Appeal, New South Wales
Date: 1 November 2019
Judges: Hoeben CJ at CL; Walton J; Price J

Background

The applicant, a former teacher and later deputy principal and principal at two Catholic schools, pleaded guilty to 14 counts of indecent assault against male students, contrary to the now-repealed s 81 of the Crimes Act 1900 (NSW). The offending spanned 11 years, from 1972 to 1983, and involved 15 complainants aged between 10 and 14 years. The conduct ranged from touching students on the thigh or buttocks through to, in one instance, masturbating a student to ejaculation.

At the time of sentencing in the District Court in November 2018, the applicant was already serving a six-year aggregate sentence (with a three-year non-parole period) imposed in 2016 for similar offences against different complainants. The sentencing judge imposed a further aggregate sentence of 8 years and 6 months, with a non-parole period of 6 years, to commence on 1 March 2018. The new sentence was made partially concurrent with the existing one.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal. He initially relied on six grounds of appeal but withdrew five of them before the hearing. The sole remaining ground was that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 8 years and 6 months, with a non-parole period of 6 years, was manifestly excessive having regard to the objective and subjective circumstances of the offences.

Decision

Hoeben CJ at CL (with whom Walton J and Price J agreed) dismissed the appeal, finding that manifest excess had not been established. His Honour reviewed the sentencing judge's approach comprehensively and found no error in her reasoning or conclusions.

The sentencing judge had assessed most counts as falling at or toward the lower end of the range for offences of this type, with count 2 assessed toward the higher end given the Form 1 matter. Only a 10 per cent discount for the guilty plea was allowed, which Hoeben CJ at CL characterised as generous given the plea was entered just three days before the trial was due to commence. The applicant was found to have no remorse or insight into his offending and had taken no steps toward rehabilitation while in custody.

On the question of accumulation (the extent to which the new sentence ran consecutively rather than concurrently with the earlier sentence), the Court confirmed this was a matter of discretion. It noted that the applicant had, across the two sentencing proceedings, offended against 27 students over a 12-year period. Each count in both proceedings involved a separate victim, and the offending was not confined to a narrow timeframe. Substantial accumulation was therefore appropriate and disclosed no error.

The Court also confirmed that the sentencing judge's treatment of uncharged conduct as relevant context (rather than as a discrete aggravating factor) was correct in principle. The absence of prior convictions was given little weight on the basis that it had enabled the applicant to gain access to victims and offend over an extended period.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Manifest excess is a high threshold: the Court of Criminal Appeal will not interfere with a sentence simply because opinions about the appropriate penalty may differ, particularly where the sentencing judge has comprehensively addressed the relevant principles.
  • Where an offender is already serving a sentence for similar offences against different victims, the degree of accumulation between the existing and new sentence is a matter of discretion, and an appellate court will be slow to interfere with its exercise (applying Nguyen v The Queen [2016] HCA 17 and Burgess v R [2019] NSWCCA 13).
  • Uncharged acts of a similar nature can properly be taken into account as context to deny leniency, but cannot be treated as independent aggravating factors.
  • A late guilty plea entered days before trial is capable of attracting only a modest discount. The 10 per cent discount allowed in this case was described as generous in those circumstances.
  • The absence of prior convictions carries reduced mitigatory weight where the clean record was instrumental in enabling sustained offending over many years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 81 (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21, 21A, 25, 25AA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
- Parole of Prisoners Act 1966 (NSW) (repealed)

Cases
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Burgess v R [2019] NSWCCA 13
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- EG v R [2015] NSWCCA 21
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Nguyen v The Queen [2016] HCA 17; 256 CLR 656
- R v MJB [2014] NSWCCA 195
- R v Todd [1982] 2 NSWLR 517
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1