Citation: Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Court: Court of Criminal Appeal, New South Wales
Date: 31 March 2020
Judge(s): Basten JA; Rothman J; Cavanagh J
Background
Following the wedding of his son at a Sydney venue in October 2018, the offender (then aged 61) committed an act of sexual intercourse without consent against the victim, his niece (then barely 18 years old). Both were heavily intoxicated. The offender was arrested that night and, the following morning, made immediate admissions to police. He pleaded guilty in the Local Court at the earliest opportunity.
The sentencing judge in the District Court imposed a community correction order of three years under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-custodial sentence the judge himself described as requiring justification of "exceptional circumstances." The sentencing judgment was described by the Court of Criminal Appeal as clear and comprehensive.
The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending that the sentence was inadequate and that two material errors had been made.
Legal Issues
- Whether the sentencing judge erred by taking the offender's self-induced intoxication into account 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 treat the offender's position of trust or authority in relation to the victim as an aggravating factor under s 21A(2)(k) of the same Act
- Whether, given any established error, the Court of Criminal Appeal should exercise its discretion to intervene and resentence the offender
Decision
On the first ground, the respondent conceded the error. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act expressly prohibits self-induced intoxication from being taken into account as a mitigating factor. The sentencing judge had done precisely that, reducing the offender's moral culpability on account of his intoxicated state, which constituted a material legal error.
On the second ground, concerning the aggravating factor of a position of trust, the Court examined whether the uncle-niece relationship, combined with the victim's heavily intoxicated state, engaged s 21A(2)(k). The respondent disputed that this factor had been overlooked. The Court's views on this second ground were relevant to the exercise of its discretionary power, since a further error could weigh in favour of resentencing.
Despite finding at least one material error sufficient to enliven the Court's power under s 5D, all three judges declined to exercise the discretion to resentence. Basten JA, with whom Rothman J and Cavanagh J agreed, identified a combination of factors weighing against intervention: the offender's residence in Western Australia (making supervision of community-based orders more complicated), his personal circumstances, the significant utilitarian discount warranted by his early plea and immediate admissions, and the applicable sentencing regime. Rothman J added a reservation that any newly articulated sentencing standard should not readily be imposed on an offender in the very appeal that sets it.
All three judges were explicit that the sentence was lenient, with Cavanagh J observing that it was nonetheless open to the sentencing judge given the personal circumstances of the respondent and the sentencing regime in place.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication cannot be taken into account as a mitigating factor at sentencing, and doing so constitutes a material legal error.
- A material sentencing error is sufficient to enliven the Court of Criminal Appeal's power to intervene under s 5D of the Criminal Appeal Act 1912 (NSW), but the exercise of that power remains discretionary, and the court may decline to resentence even where error is established.
- In declining to resentence, the Court of Criminal Appeal took into account the offender's interstate residence, the utilitarian discount flowing from an early guilty plea and immediate admissions, and the respondent's personal circumstances.
- Rothman J confirmed the principle, consistent with the dissenting approach in Munda v The State of Western Australia, that a newly determined sentencing pattern or guideline should not readily be imposed on the very respondent involved in the appeal that articulates it.
- All three judges were careful to note that, while the community correction order was strikingly lenient for an offence of sexual intercourse without consent, the sentence fell within the range open to the sentencing judge on the facts and circumstances before the District Court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61HE, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 21A (including s 21A(2)(k) and s 21A(5AA))
- Criminal Appeal Act 1912 (NSW), s 5D
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
- Judiciary Act 1903 (Cth), s 79
- Commonwealth Constitution, ss 73, 75(iv), 80
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
- Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23
- Suleman v R [2009] NSWCCA 70