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Court of Criminal Appeal 3 December 2021

PB v R

[2021] NSWCCA 285

Sexual offences

Citation: PB v R [2021] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 3 December 2021
Judges: Macfarlan JA, Fullerton J (with whom Macfarlan JA and Lonergan J agreed), Lonergan J

Background

The applicant pleaded guilty in the District Court to eleven offences of aggravated sexual assault and aggravated indecent assault committed against his biological daughter over a period of approximately fourteen months beginning in June 2009. The complainant was aged between 14 and 15 at the time and had a mild intellectual disability. The offences were committed on nine separate occasions in the family home.

On 22 March 2018, the applicant attended Nowra Police Station of his own initiative and disclosed the offending to police. He was arrested and made full admissions. The complainant had by that point already disclosed the offending to a psychologist and to family members. The applicant had been diagnosed with Autism Spectrum Disorder (ASD).

The District Court imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years. The applicant sought leave to appeal on two grounds: that the sentencing judge had not given adequate weight to his assistance to authorities, and that the sentencing judge had failed to properly consider how his ASD affected both his moral culpability and the onerousness of custody.

  • Whether the sentencing judge failed to give adequate weight to the assistance the applicant provided to police by presenting himself voluntarily and making full admissions.
  • Whether the sentencing judge failed to take sufficient account of the applicant's ASD diagnosis in assessing his moral culpability for the offending.
  • Whether the sentencing judge failed to take sufficient account of the applicant's ASD in finding that custody would be more onerous for him.

Decision

On the issue of assistance to authorities, the Court of Criminal Appeal found that the sentencing judge had adequately recognised the assistance provided. The additional 5% discount applied to four of the eleven counts (Counts 2, 8, 9, and 11) reflected the police interview disclosures. Notably, the Court found that no separate or additional discount was warranted for Counts 1, 3, 4, 5, 6, 7, and 10, because the complainant had already disclosed the offending before the applicant attended the police station. The applicant's voluntary attendance was thus not the operative source of information about all counts.

On the question of ASD and moral culpability, the Court accepted that the sentencing judge had recognised the diagnosis but found that the judge had not sufficiently engaged with whether ASD had actually moderated the applicant's moral culpability during the course of the offending. The expert evidence established that persons with ASD can experience difficulties interpreting social cues and understanding consent in intimate contexts, and that these deficits were relevant to the applicant's offending. The Court found this was a material sentencing consideration that had not been adequately reflected in the aggregate sentence.

On the onerousness of custody, the Court accepted that the sentencing judge had identified the applicant's ASD as a basis for a finding of special circumstances, but found that the adjustment to the statutory ratio between non-parole period and balance of term had not adequately accounted for how ASD would make the applicant's time in custody more difficult. This formed part of the basis for altering the aggregate sentence.

Having identified error in the treatment of ASD both as to moral culpability and the onerousness of custody, the Court resentenced the applicant. The indicative sentences for the individual offences were not disturbed. The Court reduced the aggregate sentence from 12 years to 11 years, and applied a more generous adjustment to the non-parole period to reflect the increased burden of custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 25 October 2019 quashed.
  • Aggregate sentence of 11 years' imprisonment imposed, commencing 28 August 2019 and expiring 27 August 2030.
  • Non-parole period of 6 years and 9 months, with the applicant eligible for release on parole on 27 May 2026.

Key Takeaways

  • A diagnosis of Autism Spectrum Disorder can constitute a mitigating factor at sentencing in two distinct ways: by reducing an offender's moral culpability for the offending, and by rendering a period of custody more onerous than it would be for a person without the condition.
  • Failing to adequately engage with expert evidence about how ASD affected an offender's conduct and understanding during the offending period can constitute a sentencing error, even where the diagnosis was acknowledged.
  • Assistance provided to authorities by an offender who presents voluntarily to police must be assessed against what information investigators actually needed and did not already have. Where a complainant had already disclosed the offending independently, the evidentiary value of the offender's subsequent admissions will be more limited.
  • In resentencing, the Court of Criminal Appeal left the indicative individual sentences undisturbed but reduced the aggregate to reflect the moderating effect of the applicant's ASD on the totality of his criminality.
  • The Court also applied a more generous adjustment to the statutory non-parole period ratio, finding that the combination of ASD, the more onerous nature of custody, and the need for extended supervision on parole warranted a further departure from the standard ratio.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Aslan v R [2014] NSWCCA 114
- CM v R [2013] NSWCCA 341
- Doudar v R [2021] NSWCCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elwood v R [2019] NSWCCA 315
- Griffin v R [2018] NSWCCA 259
- Jackson v R [2021] NSWCCA 15
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lambkin v R [2020] NSWCCA 327
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Masters v R [2019] NSWCCA 233
- R v Ellis (1986) 6 NSWLR 603
- R v Erazo [2016] NSWCCA 139
- R v Gallagher (1991) 23 NSWLR 220
- R v Kennedy [2000] NSWCCA 527
- Sypher v R [2020] NSWCCA 336
- SZ v R [2007] NSWCCA 19
- TL v R [2020] NSWCCA 265
- Tuncbilek v R [2020] NSWCCA 30