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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: Court of Criminal Appeal
Date: 7 October 2020
Judges: Hoeben CJ at CL, Rothman J, Bellew J

Background

The applicant pleaded guilty in the Local Court to aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offence carried 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 head sentence of 5 years with a non-parole period of 2 years and 6 months.

Both the applicant and the complainant had mental health diagnoses. The complainant had a mild intellectual disability and schizophrenia. The applicant had been diagnosed with schizoaffective disorder and, relevantly for the appeal, was assessed by a psychologist as also having a mild intellectual disability. A report from forensic psychologist Dr Seidler, based on standardised psychometric testing administered by a provisionally registered psychologist, supported that finding.

The applicant sought leave to appeal his sentence on several grounds: that the sentencing judge had wrongly discounted the expert evidence of intellectual disability, had misused sentencing statistics, and that the sentence was manifestly excessive in light of his subjective circumstances.

Legal Issues

  • Whether the sentencing judge erred in qualifying or rejecting the uncontested expert evidence of Dr Seidler regarding the applicant's intellectual disability
  • Whether the sentencing judge improperly used sentencing statistics as a starting point rather than as a check on the sentence otherwise arrived at
  • Whether the Crown's submissions about the available sentencing range were inconsistent with the principles established in Barbaro v The Queen
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances
  • Whether the resulting sentence was manifestly excessive

Decision

Ground 1 and Ground 3: Rejection of intellectual disability evidence and weight given to subjective circumstances

The sentencing judge had before him a psychometric assessment administered by a provisionally registered psychologist and interpreted by Dr Seidler. That assessment placed the applicant's intellectual functioning and adaptive behaviour in ranges consistent with a mild intellectual disability. The Crown's objection centred on the fact that Dr Seidler had not personally conducted a face-to-face clinical examination of the applicant. Dr Seidler responded by email explaining why a clinical interview is not the appropriate diagnostic tool for intellectual disability and that psychometric testing is the required method. No party challenged Ms Brookman's competence to administer the tests (at [61]-[63]).

The Court of Criminal Appeal found no evidentiary basis for the sentencing judge to qualify Dr Seidler's opinion as he did. The sentencing judge simply expressed that he remained "unconvinced" that a face-to-face consultation would not have assisted Dr Seidler, without providing reasons for that conclusion. Bellew J emphasised that this fell short of the obligation to provide adequate reasons for rejecting expert opinion (at [78]-[79]). Because the sentencing judge wrongly discounted this evidence, he also failed to give sufficient weight to the applicant's subjective case, making out Ground 3 as well (at [81]).

Ground 2(a) and 2(b): Misuse of sentencing statistics and inappropriate exchange about sentencing range

The sentencing judge referred to JIRS statistics during exchanges with counsel and in his remarks on sentence, noting "the most common term" of imprisonment for the offence. The Court held this was an improper use of those statistics. Sentencing statistics serve as a check on a sentence otherwise arrived at through the application of sentencing principles; they are not a starting point for calculation (at [46]-[47]).

The Court also observed that exchanges between the sentencing judge and Crown counsel about the "bounds" of the available sentencing range were highly inappropriate, and Bellew J found that particular Crown submissions were at odds with the principles in Barbaro (at [83]-[87]). However, it was unnecessary to resolve whether those exchanges were themselves impermissible under Barbaro, as the appeal succeeded on other grounds (at [35], [48]).

Ground 2(c): The description of the offence as "abhorrent"

The Court did not uphold this ground. The sentencing judge's remark that the offence was abhorrent referred to the non-consensual nature of the act, not to any particular characteristic of the sexual act itself (at [72]-[73]).

Resentencing

Finding multiple errors established, the Court allowed the appeal and resentenced the applicant. The seriousness of the offence was not in dispute, and the Court accepted the findings on remorse, objective seriousness, and harm to the complainant. The applicant's schizoaffective disorder made him an inappropriate vehicle for general deterrence, and his intellectual disability reduced the weight of specific deterrence as well (at [69]-[70]). Special circumstances were found, warranting a non-parole period of 50% of the head sentence to allow for mental health rehabilitation and gradual reintegration into the community (at [74]-[75]). Starting from 5 years and 4 months and applying a 25% utilitarian plea discount, the Court arrived at a revised sentence of 4 years' imprisonment.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed on 22 August 2019 quashed
  • The applicant sentenced to imprisonment of 4 years, commencing 4 April 2019 and concluding 3 April 2023, with a non-parole period of 2 years concluding 3 April 2021; the applicant first eligible for parole on 3 April 2021

Key Takeaways

  • Sentencing statistics from the Judicial Commission's JIRS are a tool for checking a sentence already arrived at through proper application of sentencing principles; using them as a starting point for calculation constitutes sentencing error (at [46]-[47]).

  • Where a sentencing judge rejects uncontested expert opinion, the obligation to give reasons requires more than a bare statement of being "unconvinced." The judge must explain why the expert's reasons for that opinion are themselves rejected (at [78]-[79]).

  • A finding that an offender has schizoaffective disorder can reduce the weight to be given to general deterrence as a sentencing purpose, and evidence of intellectual disability similarly reduces the emphasis on specific deterrence (at [69]-[70]).

  • Special circumstances justifying a departure from the standard non-parole period ratio may be established where the offender has significant mental health and intellectual disability needs requiring an extended supervised period of reintegration into the community (at [74]-[75]).

  • Crown prosecutors are not permitted, consistently with Barbaro v The Queen, to make submissions to sentencing judges about the bounds of the available sentencing range; the Court of Criminal Appeal reiterated that such submissions are wrong in principle and should be firmly discouraged (at [83]-[87]).

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