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Court of Criminal Appeal 7 October 2020

Tatur v R

[2020] NSWCCA 255

Sexual offences
CRIME SENTENCE APPEAL NON APPEAL UPHELD.

Citation: Tatur v R [2020] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 7 October 2020
Judge(s): Hoeben CJ at CL, Rothman J, Bellew J

Background

The appellant pleaded guilty in the Local Court to one count of aggravated sexual assault without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The sentencing judge in the District Court imposed a term of 5 years' imprisonment with a non-parole period of 2 years and 6 months.

The offence occurred on 11 June 2018. The complainant, who had a mild intellectual disability and schizophrenia, had returned home from hospital in the early hours of the morning after taking both clozapine and Valium. The appellant, who had accompanied her to hospital, was in the complainant's bed as she fell asleep. Despite the complainant expressly refusing his request for sex, the appellant performed anal intercourse on her while she was heavily sedated and half-asleep.

The appellant sought leave to appeal the sentence on four grounds, arguing that the sentencing judge had wrongly rejected uncontested expert evidence about the degree of his intellectual disability, had been distracted by sentencing statistics and Crown submissions on range, and had imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred in rejecting the uncontested expert opinion of Dr Katie Seidler regarding the degree of the appellant's intellectual disability, and whether sufficient reasons were given for doing so
  • Whether the sentencing judge placed excessive reliance on Judicial Commission sentencing statistics when assessing the objective seriousness of the offence
  • Whether the sentencing judge improperly relied upon Crown submissions as to what an appropriate sentencing range would be, contrary to the principle in Barbaro v The Queen
  • Whether the sentencing judge gave insufficient weight to the appellant's subjective circumstances, including his intellectual disability
  • Whether the resulting sentence was manifestly excessive

Decision

Expert evidence on intellectual disability: Dr Seidler's unchallenged expert opinion placed the appellant's intellectual functioning in the mild to moderate range. The sentencing judge appeared to reject or discount this opinion without providing adequate reasons, preferring instead to characterise the disability at the lower end of the scale. Rothman J found this approach was in error. Where expert evidence is uncontested and there is no proper basis articulated for departing from it, a sentencing court is not entitled to simply disregard it.

Sentencing statistics and Crown submissions on range: The sentencing judge placed significant weight on Judicial Commission statistics when gauging the appropriate sentence. Rothman J confirmed that such statistics may inform a sentencing exercise but must not drive it. The statistics do not account for the full range of individual circumstances and cannot substitute for a proper instinctive synthesis of all relevant factors. Separately, the Crown had made submissions about an appropriate sentencing range. This was impermissible under the principle established in Barbaro v The Queen, which prohibits prosecutors from nominating a specific range of sentences. Bellew J described one Crown submission in this regard as "meaningless and unhelpful" and "entirely inappropriate."

Subjective circumstances and manifest excess: The cumulative effect of these errors led to the sentencing judge failing to give adequate weight to the appellant's significant subjective circumstances, most notably his intellectual disability, his mental health conditions, his early plea, and other mitigating factors. The Court of Criminal Appeal found the sentence was, in all the circumstances, manifestly excessive. The appeal was upheld, and the matter was re-sentenced.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Uncontested expert evidence about an offender's intellectual disability cannot simply be rejected or substantially discounted without the sentencing court providing adequate reasons grounded in the material before it.
  • A sentencing court may have regard to Judicial Commission sentencing statistics as one reference point, but those statistics cannot dominate the sentencing exercise or substitute for a proper weighing of all individual circumstances.
  • Under the principle confirmed in Barbaro v The Queen (2014) 253 CLR 58, Crown prosecutors must not submit a specific range of appropriate sentences to a sentencing court; the Court of Criminal Appeal reiterated that such submissions are impermissible and should be firmly discouraged.
  • Where multiple errors in a sentencing exercise collectively result in insufficient weight being given to an offender's subjective case, the resulting sentence may be set aside on the ground of manifest excess.
  • The Court of Criminal Appeal confirmed that an offender's degree of intellectual disability is a significant mitigating factor that must be properly engaged with during the sentencing process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- DF v R [2012] NSWCCA 171; (2012) 22 A Crim R 178
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39