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Court of Criminal Appeal 21 December 2021

DE v R

[2021] NSWCCA 315

Sexual offencesAssault & violence

Citation: DE v R [2021] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 21 December 2021
Judge(s): Bathurst CJ; Wright J; Wilson J

Background

The applicant, referred to as DE to comply with statutory publication restrictions, was convicted by jury in the District Court of one count of sexual intercourse without consent and one count of assault with an act of indecency. Both offences were committed against the same victim during the early hours of 9 July 2017 at her home in Bourke, New South Wales. The applicant, who was known to the victim, had been present at a party at her home the previous evening and entered her bedroom while she slept.

At sentence, the applicant's significant intellectual disability (a full-scale IQ of 55) and deprived background were placed before the sentencing judge through expert psychological evidence. The sentencing judge imposed concurrent sentences, with the primary sentence for sexual intercourse without consent being 4 years and 9 months with a non-parole period of 3 years and 3 months.

The applicant sought leave to appeal against that sentence on the single ground that it was manifestly excessive, having regard in particular to his intellectual disability and background deprivation.

  • Whether the sentence imposed for sexual intercourse without consent was manifestly excessive.
  • Whether the sentencing judge correctly applied the principles in Bugmy v The Queen (2013) 249 CLR 571 when treating the applicant's intellectual disability as relevant to the assessment of his moral culpability and the purposes of punishment.
  • Whether the sentencing judge properly assessed the expert psychological evidence of Ms Lucas in considering the applicant's subjective circumstances.
  • Whether a finding of special circumstances justifying a departure from the statutory non-parole period ratio was warranted.

Decision

The Court granted leave to appeal but ultimately divided on whether the appeal should be allowed. Wright J (in the minority) found that the sentencing judge had approached the Bugmy principles and the expert evidence in a flawed manner, and proposed a reduced sentence. Bathurst CJ and Wilson J held that, even accounting for those criticisms, the sentence was not manifestly excessive in the sense of being unreasonable or plainly unjust.

All three judges agreed that the sentencing judge's treatment of the Bugmy principles was problematic. The Bugmy principles, as summarised in the case bearing that name, require that an offender's deprived background and its ongoing effects be given full weight when assessing moral culpability and the utility of general deterrence as a sentencing purpose. The Court noted that the sentencing judge had not properly applied this approach when assessing objective seriousness or when considering the applicant's subjective case.

Bathurst CJ and Wilson J nonetheless concluded, when applying the correct approach and giving full weight to the applicant's intellectual disability and deprived background, that the sentence remained within the range reasonably open to the sentencing judge. Several aggravating features weighed heavily: the offence carried a standard non-parole period of 7 years; the applicant was on a good behaviour bond at the time of offending; no finding of remorse was made in his favour; and the sentencing judge could not find that reoffending was unlikely. That last factor remained relevant to specific deterrence even for an intellectually disabled offender.

Wright J, by contrast, identified more significant errors in the sentencing judge's assessment of the expert evidence and the Bugmy factors and concluded that the original sentence was manifestly excessive. His Honour proposed a reduced sentence of 3 years and 6 months with a non-parole period of 2 years and 3 months, reflecting a finding of special circumstances based on new material indicating improved rehabilitation prospects and available NDIS and employment support on the applicant's release.

Orders Made

Consistent with the majority position (Bathurst CJ and Wilson J):

  • Leave to appeal granted.
  • Appeal dismissed.

Wright J (minority) proposed the following orders, which did not represent the orders of the Court:
- Leave to appeal granted.
- Appeal allowed.
- Sentence on count 1 quashed and replaced with imprisonment comprising a non-parole period of 2 years and 3 months from 17 October 2019, expiring 16 January 2022, with a balance of term of 1 year and 3 months expiring 16 April 2023.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Bugmy principles require a sentencing court to give full and genuine weight to an offender's intellectual disability and deprived background, both in assessing moral culpability and in gauging the utility of general deterrence as a sentencing purpose.
  • Criticism of a sentencing judge's application of the Bugmy principles does not automatically lead to a successful manifest excess appeal; the appellate court must still determine whether the resulting sentence falls outside the range of sentences reasonably available on the correct approach.
  • Where a sentencing court cannot find that an intellectually disabled offender is unlikely to reoffend, specific deterrence remains a legitimate sentencing consideration, even accounting for reduced moral culpability arising from that disability (DPP (Cth) v De La Rosa at [177] applied).
  • A split decision at the Court of Criminal Appeal is resolved by the view of the majority; all three judges agreed on the errors below, but differed on whether those errors produced a sentence that was unreasonable or plainly unjust.
  • Aggravating features, including offending while on a good behaviour bond, the absence of a remorse finding, and the inability to exclude risk of reoffending, can collectively sustain an otherwise stern sentence even against a powerful subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 66EB, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- BB v The Queen [2021] NSWCCA 283
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Badans v R [2012] NSWCCA 97
- Tepania v R [2018] NSWCCA 247
- Elwood v R [2019] NSWCCA 315
- Windle v R [2011] NSWCCA 277