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Court of Criminal Appeal 11 December 2020

Hartley v R

[2020] NSWCCA 330

Sexual offences
S 61M(2) CRIMES ACT NO SEXUAL OFFENDING SINCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hartley v R [2020] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 11 December 2020
Judges: Simpson AJA; Bellew J; Campbell J

Background

The applicant was convicted by a jury on one count of assault with an act of indecency on a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (since repealed). The offence occurred in the second half of 2015, when the 13-year-old complainant was visiting the applicant's home to play video games. The applicant placed his hand on the complainant's leg, attempted to pull down his shorts using force, and blocked the complainant's exit before the complainant escaped through the back door.

The applicant had a prior sexual offence on his record: a conviction from 1986, when he was 19 years old, for homosexual intercourse with a child under 10. No further sexual offending had occurred in the intervening 29 years. The applicant had, however, subsequently breached apprehended violence orders connected to the complainant, though not through sexual conduct.

In November 2019, the District Court sentenced the applicant to 4 years and 6 months' imprisonment with a non-parole period of 3 years. The applicant sought leave to appeal, arguing the sentence was affected by factual error and was manifestly excessive.

  • Whether the sentencing judge erred in finding that the offence fell "slightly below" the middle of the range of objective seriousness for offences of its type
  • Whether the sentencing judge erred in finding, without medical evidence, that the applicant had an "abnormal sexual disorder which has not abated"
  • Whether the sentence was manifestly excessive as a result of those findings

Decision

The Court of Criminal Appeal, in reasons delivered by Simpson AJA (with Bellew J and Campbell J agreeing), granted leave to appeal and allowed the appeal. The Court identified two significant errors in the sentencing judge's approach.

On objective seriousness, the Court found the sentencing judge's characterisation of the offence as "slightly below" the midrange was not erroneous. The offence involved an element of force and a breach of trust toward a 13-year-old, but did not involve skin-on-skin contact and was completed over a short time. That finding was upheld.

The critical error lay in the finding that the applicant suffered from an "abnormal sexual disorder which has not abated." The sentencing judge drew this inference from the 1986 conviction and the 2016 conduct involving the apprehended violence order breaches. The Court held that no such finding was available on the evidence: there was no medical material before the court, and the 2016 conduct was not sexual in nature. Inferring a continuing sexual disorder from a single prior conviction 29 years earlier, with no intervening sexual offending, was not a permissible step on the available material. The finding had led the sentencing judge to treat reoffending as a significantly adverse consideration, which was not warranted.

The Court resentenced the applicant to a total term of 3 years' imprisonment. It retained the finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), based on the applicant's need for supervision on release, and set a non-parole period of 2 years. The commencement date of 24 April 2018 was preserved, as the sentencing judge had appropriately balanced totality considerations against the need to ensure the apprehended violence order offences were not effectively nullified by a wholly concurrent sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; original sentence set aside
  • Applicant resentenced to imprisonment comprising a non-parole period of 2 years commencing 24 April 2018 and expiring 23 April 2020, with a balance of term of 1 year expiring 23 April 2021

Key Takeaways

  • A sentencing court cannot infer a continuing "abnormal sexual disorder" from a prior sexual conviction alone, particularly where nearly three decades had passed with no further sexual offending and no medical evidence was before the court.
  • The Court of Criminal Appeal confirmed that conduct underlying a breach of an apprehended violence order will not support an inference of a continuing sexual disorder where that conduct was not sexual in nature.
  • Where a sentencing judge makes an unsupported factual finding that materially inflates an assessment of reoffending risk, this constitutes a legal error capable of vitiating the sentence and warranting resentencing.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can rest on multiple grounds; even where one stated ground is found to be erroneous, the finding may be preserved if other valid grounds support it.
  • In resentencing, the Court of Criminal Appeal adopted a moderate weight for the prior sexual conviction given the lengthy gap in offending, and treated the applicant's age (53 at the time of appeal) as providing some basis for a cautiously more optimistic view of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J(1), 61M(2) (since repealed), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44(2), Pt 4 Div 1A

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- Bain v R [2006] NSWCCA 79 (referred to in the sentencing remarks)