Citation: Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Court: Court of Criminal Appeal
Date: 31 March 2020
Judges: Basten JA at [1]; Rothman J at [47]; Cavanagh J at [64]
Background
The respondent was convicted in the District Court of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence occurred in the early hours of the morning following a family wedding, where the victim, the respondent's niece, was heavily intoxicated. The respondent, who was also intoxicated, took her to his hotel room while her aunt went to find her mother.
The sentencing judge imposed a community correction order for three years, expressly acknowledging that a non-custodial sentence was extraordinary and required justification by exceptional circumstances. The respondent had pleaded guilty at the earliest opportunity, made immediate admissions to police the morning after the offence, had no prior convictions, and was assessed as unlikely to reoffend.
The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending the sentence was inadequate on several grounds. The respondent was a resident of Western Australia, which the Court noted meant it was exercising federal jurisdiction under s 75(iv) of the Commonwealth Constitution.
Legal Issues
- Whether the sentencing judge erred by taking into account the respondent's self-induced intoxication as a mitigating factor, contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge erred by failing to find that the respondent had abused a position of trust or authority in relation to the victim under s 21A(2)(k) of the Sentencing Procedure Act
- Whether the sentence was manifestly inadequate
- Whether the Court of Criminal Appeal should exercise its residual discretion to intervene and resentence, even where a material error had been established
Decision
Ground 1: Self-induced intoxication as a mitigating factor
The respondent conceded, and the Court accepted, that the sentencing judge erred by treating the respondent's self-induced intoxication as a factor reducing his moral culpability. Section 21A(5AA) of the Sentencing Procedure Act expressly provides that self-induced intoxication "is not to be taken into account as a mitigating factor." The judge's reasoning had identified the respondent's "clouded judgment" as one reason why a non-custodial sentence remained appropriate, making the error material to the sentencing outcome (at [4], [27]-[28]).
Ground 2: Position of trust or authority
The Court found that the sentencing judge did not make a finding that the respondent had abused a position of trust within the meaning of s 21A(2)(k). The judge had recognised the victim's trust in her uncle, but that fell short of the statutory concept, which requires an established relationship carrying an obligation of care and protection, not merely a situational or emotional trust (at [29]-[30]). The Court noted that the uncle and niece resided in different States and little was known about the actual nature of their relationship. No error was established in the judge's failure to find this aggravating factor proved beyond reasonable doubt (at [31]-[32]).
Ground 3: Manifest inadequacy
The Court considered it unnecessary to address manifest inadequacy separately, given a specific material error had already been identified. The potential inadequacy of the sentence remained relevant, however, to the question of whether to exercise the residual discretion to resentence (at [33]).
Residual discretion: whether to resentence
Despite the admitted material error, the Court declined to intervene. Several factors weighed against resentencing. The offence fell toward the lower end of seriousness for its type, and the respondent's personal circumstances, including good character, significant remorse, strong rehabilitation prospects, and the personal consequences he had already suffered, warranted a significant degree of leniency (at [23], [26], [45]). The prosecution had not submitted to the sentencing judge that a fully custodial sentence was the only available disposition, which the Court identified as a powerful consideration against intervention on appeal (at [37]). A further practical consideration was that the respondent's Western Australian residency meant a supervision condition could not have been attached to the community correction order in any event, given no other State or Territory had been declared an approved jurisdiction under the relevant regulation (at [43]-[44]). Rothman J added that the sentence, while lenient, was not outside the pattern of sentences that had previously applied, and declined to use this matter as a vehicle to revise that pattern (at [61]-[62]). All three judges agreed that the residual discretion should be exercised in the respondent's favour and the appeal dismissed (at [45]-[46], [63], [65]).
Orders Made
- The appeal was dismissed.
Key Takeaways
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Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates as an absolute prohibition: self-induced intoxication cannot be taken into account to reduce an offender's moral culpability at sentencing, even where the intoxication is said merely to explain otherwise inexplicable conduct (at [4], [27]-[28]).
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Establishing a material error in the sentencing exercise is a necessary but not sufficient condition for intervention by the Court of Criminal Appeal on a Crown appeal. A second step requires the Director to negate reasons why the residual discretion not to interfere should be exercised (at [34]).
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The abuse of a "position of trust or authority" under s 21A(2)(k) requires an established relationship carrying obligations of care and protection, not simply a situation where a victim placed emotional trust in an offender or where the offender voluntarily assisted in a particular circumstance. Whether an uncle-niece relationship constitutes such a position depends on the specific nature and circumstances of that relationship (at [29]-[32]).
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Where a prosecution had not argued in the court below that a fully custodial sentence was the only appropriate disposition, the Court of Criminal Appeal treated that as a powerful factor weighing against resentencing to imprisonment on appeal (at [37]).
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An offender's interstate residency can have practical consequences for the conditions available under a community correction order: under the regime as it stood, a supervision condition could not be imposed on an offender residing in a State not declared an approved jurisdiction, which the Court flagged may raise questions under s 117 of the Commonwealth Constitution about differential treatment of interstate residents (at [43]-[44]).
Legislation and Cases Referenced
Legislation
- Constitution, ss 75(iv), 73, 80
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 21A
- Crimes Act 1900 (NSW), ss 61HE, 61I
- Criminal Appeal Act 1912 (NSW), s 5D
- Judiciary Act 1903 (Cth), s 79
Cases
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Cowling v R [2015] NSWCCA 213
- MAH v R; R v MAH [2006] NSWCCA 226
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Peiris v R [2014] NSWCCA 58; 240 A Crim R 114
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- R v Mooney (unrep, CCA Vic) 21 June 1978
- Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23
- Suleman v R [2009] NSWCCA 70