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48
Court of Criminal Appeal 17 December 2019

R v Cattell

[2019] NSWCCA 297

Also reported as (2019) 280 A Crim R 502
Sexual offences
CRIMINAL LAW ELDERLY RESPONDENT WHETHER MANIFESTLY INADEQUATE DELAY ERROR OF PRINCIPLE TOTALITY

Citation: R v Cattell [2019] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 17 December 2019
Judge(s): Hoeben CJ at CL, Price J, Campbell J

Background

The respondent, a former Catholic priest, pleaded guilty in the District Court to seven charges of historical child sexual offences committed between 1968 and 1991. The victims were boys aged between six and twelve years at the time of the offending. The respondent had exploited positions of religious and pastoral authority to gain access to his victims.

The District Court imposed an aggregate sentence of 30 months imprisonment with a non-parole period of nine months, after applying a 25 per cent discount for the utilitarian value of the guilty pleas. The respondent was an elderly man with prior convictions for similar offences.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate and affected by a number of errors of principle.

  • Whether the aggregate sentence of 30 months was manifestly inadequate for seven historical child sexual assault offences spanning over two decades.
  • Whether the sentencing judge had failed to apply, or overlooked, s 25AA(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires an offender to be sentenced in accordance with sentence patterns and practices at the time of sentencing rather than at the time of the offence.
  • Whether delay in prosecuting old sexual assault offences was improperly treated as having a dominant mitigating effect on the sentence.
  • Whether the totality principle had been correctly applied, given that the respondent had previously been sentenced for similar offences.
  • Whether any residual discretion should be exercised against re-sentencing, notwithstanding established error.

Decision

The Court of Criminal Appeal identified multiple errors of principle in the District Court sentence. The sentencing judge had failed to expressly state that the respondent was being sentenced in accordance with current sentencing patterns and practices as required by s 25AA(1). The Court confirmed that, while delay is a legitimate mitigating factor, it must not be permitted to play a dominant role in reducing a sentence. The Court found the sentencing judge had allowed the delay factor to weigh too heavily, to the detriment of other sentencing objectives.

The Court also found error in the treatment of the totality principle. The totality principle ordinarily operates to temper the aggregate effect of multiple sentences so they are not crushing. However, the Court held that the sentencing judge had misapplied it: rather than preventing the aggregate from being excessive, the judge had used it to reduce the sentence to a level that failed to reflect the full criminality of the respondent's conduct, particularly given his prior convictions for similar offences.

The Court rejected the submission that residual discretion should be exercised in the respondent's favour. It emphasised that general deterrence and denunciation carry particular weight in historical child sexual assault cases, noting the serious and sustained nature of the offending, the abuse of positions of trust and authority, and the lasting harm caused to victims. The sentence as imposed did not adequately reflect those considerations.

On re-sentence, the Court increased the aggregate term and the non-parole period to give proper effect to the sentencing objectives that the District Court sentence had failed to address.

Orders Made

  • Crown appeal allowed.
  • The aggregate sentence imposed in the District Court on 26 July 2019 is quashed.
  • In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 3 years commencing on 26 July 2019 and expiring on 25 July 2022, with a non-parole period of 18 months expiring on 25 January 2021.

Key Takeaways

  • Under s 25AA(1) of the Crimes (Sentencing Procedure) Act 1999, historical sexual offenders must be sentenced in accordance with current sentencing patterns and practices. The Court confirmed it is important for a sentencing judge to expressly state that this requirement has been applied.
  • Delay in prosecuting historical child sexual assault offences is a legitimate mitigating factor, but it must not assume a dominant role in the sentencing exercise to the exclusion of other objectives such as general deterrence and denunciation.
  • The totality principle is designed to prevent an aggregate sentence from being crushing, not to reduce a sentence below a level that properly reflects the overall criminality of an offender's conduct. Misapplying it in the latter direction constitutes an error of principle.
  • Where a respondent has prior convictions for similar offences, the mitigating effect of totality is further constrained: the sentence must still reflect the gravity and pattern of the offending as a whole.
  • In historical child sexual assault matters involving serious, sustained abuse and exploitation of positions of trust, the Court of Criminal Appeal reaffirmed that general deterrence and denunciation remain significant sentencing considerations, even for elderly offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61E(1A), 61M(1), 66C(1), 81, 81A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25AA(1), (3), (5), 44, 53A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW) s 5D
- Parole of Prisoners Act 1966 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
- CMB v Attorney General for New South Wales (2015) 256 CLR 346
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hornhardt v R [2017] NSWCCA 186
- House v The King (1936) 55 CLR 499
- Magnuson v R [2013] NSWCCA 50
- Mill v The Queen (1988) 166 CLR 59
- Moon v R [2000] NSWCCA 534
- O'Sullivan v R [2019] NSWCCA 261
- Porter v R [2019] NSWCCA 117
- Postiglione v The Queen (1997) 189 CLR 295
- R v Barker [2016] NSWCCA 193
- R v Fidow [2004] NSWCCA 172
- R v GWM [2012] NSWCCA 240
- R v MAK [2006] NSWCCA 381
- R v MJR (2002) 54 NSWLR 368
- R v MMK [2006] NSWCCA 272
- R v Spiers [2008] NSWCCA 107