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Court of Criminal Appeal 25 March 2020

Gagan (a pseudonym) v R

[2020] NSWCCA 47

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CHILD SEXUAL ASSAULT APPEAL ALLOWED AND OFFENDER RESENTENCED

Citation: Gagan (a pseudonym) v R [2020] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 25 March 2020
Judges: Leeming JA (principal judgment); Harrison J and Hamill J (agreeing)

Background

The applicant, referred to by the pseudonym Gagan, pleaded guilty to four counts of sexual intercourse with a child under the age of ten, contrary to s 66A of the Crimes Act 1900 (NSW). The offending occurred between 2006 and 2009 against two of his daughters, who were aged approximately seven and five at the time. The offending took place regularly in the family home until the children were removed from his care in April 2009.

The applicant had a long history of serious mental illness, including diagnoses of schizoaffective disorder, substance use disorders, and antisocial and borderline personality disorder. He had experienced a profoundly traumatic childhood involving physical abuse, sexual abuse, homelessness, and heavy drug use from an extremely young age. A forensic psychiatrist, Dr Sidorov, provided a detailed psychiatric report that was accepted without challenge.

At first instance in the District Court, the applicant was sentenced to a total effective term of 12 years imprisonment with a non-parole period of 7 years and 6 months. He sought leave to appeal on two grounds: that the sentencing judge failed to reduce the role of general deterrence in light of his mental illnesses, and that it was not open to find the statutory aggravating factor of "substantial harm" to the victim based on the available evidence.

  • Whether the sentencing judge erred by limiting her consideration of the applicant's mental illness to moral culpability and his experience in custody, without also reducing the weight given to general deterrence as a sentencing purpose.
  • Whether the victim impact statement from the older daughter was sufficient to establish the aggravating factor of "substantial harm" under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), above and beyond the harm inherent in the offence itself.

Decision

Ground 1: Mental illness and general deterrence

The Court accepted that the sentencing judge acknowledged the applicant's mental illness as it bore on moral culpability and the harshness of custody, but found she failed to take the further step of reducing the weight given to general deterrence. The principle is well established that where an offender suffers from serious mental illness, general deterrence carries diminished force because that offender is not a useful vehicle for deterring others. Both the Crown and the defence had made a joint submission to this effect, and the Court found the omission constituted a sentencing error.

Ground 2: Substantial harm

The Court also upheld the second ground. To establish the s 21A(2)(g) aggravating factor, the prosecution must prove that the victim experienced substantial harm over and above the harm ordinarily inherent in the type of offence. The victim impact statement from the older daughter, while accepted as genuine and distressing, described harm that the Court found was consistent with the harm inherent in this category of serious child sexual offending. It did not demonstrate harm of a kind or degree that elevated the case beyond that baseline. Accordingly, the aggravating factor had not been made out on the available evidence.

Resentencing

Having found error on both grounds, the Court resentenced the applicant. It adopted the same structural approach as the sentencing judge, imposing concurrent sentences for the counts relating to each daughter, with a substantial measure of concurrency between the two pairs. The sentences for each count were reduced to 9 years imprisonment with non-parole periods of 5 years. The Court noted that a threat made during the assault on the older daughter was counterbalanced by the additional youth of the younger daughter, producing identical sentences for each pair of offences. The total effective sentence became 10 years imprisonment with a non-parole period of 6 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by the District Court on 28 March 2019 quashed.
  • For counts 1 and 2: concurrent sentences of 9 years imprisonment, with non-parole periods of 5 years, commencing 19 October 2017, expiring 18 October 2026, with non-parole periods expiring 18 October 2022.
  • For counts 4 and 5: concurrent sentences of 9 years imprisonment, with non-parole periods of 5 years, commencing 19 October 2018, expiring 18 October 2027, with non-parole periods expiring 18 October 2023.
  • Total effective sentence: 10 years imprisonment with a non-parole period of 6 years; earliest parole eligibility 19 October 2023.

Key Takeaways

  • Where an offender suffers from serious mental illness, sentencing courts are required not only to reduce moral culpability but also to diminish the weight given to general deterrence as a sentencing objective. Addressing mental illness solely through the lens of culpability and custodial hardship is insufficient.
  • Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of "substantial harm" requires proof of harm to the victim that exceeds the harm ordinarily inherent in the type of offence charged. A victim impact statement that reflects harm consistent with the baseline for that category of offending does not satisfy this requirement.
  • A joint submission from both the Crown and the defence on a sentencing principle carries weight, and departing from such a submission without adequate reasoning may constitute error.
  • In resentencing, the Court of Criminal Appeal may hold sentences for offences involving different victims at the same level where countervailing aggravating factors operate to offset each other.
  • Suppression provisions under s 578A of the Crimes Act 1900 applied throughout, and the applicant was identified only by pseudonym.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 25AA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Manly v The Queen [2014] NSWCCA 59; 240 A Crim R 92
- Marrow v R [2015] NSWCCA 282
- Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Cattell [2019] NSWCCA 297
- R v Tuala [2015] NSWCCA 8; 248 A Crim R 502
- Ryan v R [2017] NSWCCA 209