Citation: Scrimshaw (a pseudonym) v R [2021] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 30 April 2021
Judges: Payne JA, Bellew J, Button J (Button J delivered the principal judgment)
Background
The applicant, referred to by the pseudonym Adrian Scrimshaw, was sentenced in the District Court at Port Macquarie in February 2017 for multiple serious sexual offences committed against his natural daughter, Catherine, over a period spanning approximately 2004 to 2006. The offences involved penile, digital, and oral penetration, and Catherine was between 10 and 12 years old at the time of the offending. The sentencing judge adopted a cascading structure of individual head sentences, resulting in a total head sentence of 11 years imprisonment with a total non-parole period of 7 years.
The applicant sought leave to appeal out of time against that sentence. At the hearing, the Crown conceded that a material error had occurred: the sentencing judge had applied a standard non-parole period that did not exist in the legislation at the time the offences were committed. Both parties agreed appellable error was established and that the Court should proceed directly to resentence.
The Crown accepted the error but resisted any reduction in the total sentence, contending that no lesser sentence than that imposed at first instance was warranted in law.
Legal Issues
- Whether leave to appeal out of time should be granted.
- Whether the sentencing judge erred by applying a standard non-parole period that did not exist at the time the offences were committed.
- Whether, on resentencing, a lesser sentence than that imposed at first instance was warranted in law.
- What sentencing considerations applied to penetrative sexual offending committed by an offender with a prior history of similar offending against children.
Decision
The Court of Criminal Appeal granted leave to appeal out of time and accepted the Crown's concession that the sentencing judge had wrongly proceeded on the basis that a standard non-parole period applied to these offences. At the time of the offending, no such period existed. This constituted appellable error, and the remaining two grounds of appeal were not determined because counsel for the applicant did not press them.
Button J conducted a fresh sentencing exercise, applying current sentencing practices pursuant to section 25AA of the Crimes (Sentencing Procedure) Act 1999, but disregarding any currently applicable standard non-parole period, as both parties agreed that period should not be used. The objective features of the offending were assessed as very serious: the applicant had committed repeated penetrative offences against his own child, exploiting a position of trust and authority over many years.
Button J also noted a number of significant subjective matters. The applicant had previously been imprisoned for penetrative sexual offending against a young child. While he had some cognitive limitations, he was aware of the wrongfulness of his conduct, as evidenced by his instruction to Catherine to say nothing and his subsequent apology. These prior offences heightened the relevance of denunciation, general deterrence, specific deterrence, and retribution. The applicant's prospects of rehabilitation were assessed as guarded at best.
On undertaking a fresh instinctive synthesis of all objective and subjective features, Button J concluded that the indicative individual sentences and the aggregate outcome would each be longer than those imposed by the sentencing judge at first instance. Because the resentencing exercise produced an outcome no less than the original sentence, no lesser sentence was warranted in law and the appeal was dismissed.
Orders Made
- Leave to appeal out of time granted.
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- Applying a standard non-parole period that did not exist at the time of the relevant offending constitutes appellable error, and the Crown in this matter conceded as much without contest.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that establishing a sentencing error does not automatically result in a lesser sentence: the resentencing discretion must be exercised afresh, and the outcome may equal or exceed the original sentence.
- Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, a resentencing court applies current sentencing practices rather than those in effect at the time of the offending, even where the offences are historical.
- A prior custodial history for penetrative sexual offending against children is a significant factor that elevates the weight given to denunciation, general deterrence, specific deterrence, and retribution in subsequent sentencing for similar offences.
- Cognitive limitations in an offender do not diminish the objective gravity of the offending where the evidence demonstrates an awareness of wrongfulness at the time the offences were committed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61N, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
Cases cited: No cases were cited in the provided text of the judgment.