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Court of Criminal Appeal 22 June 2022

Pritchard v R

[2022] NSWCCA 130

Sexual offencesAssault & violence
CRIME APPEALS APPEALS AGAINST SENTENCE APPLICANT INTOXICATED BY ALCOHOL OBJECTIVE SERIOUSNESS OPPORTUNISTIC BUT NOT SPONTANEOUS

Citation: Pritchard v R [2022] NSWCCA 130
Court: Court of Criminal Appeal, NSW
Date: 22 June 2022
Judges: Beech-Jones CJ at CL; Price J; N Adams J (principal judgment)

Background

The applicant pleaded guilty in the District Court at Lismore to three offences arising from a violent attempted sexual assault committed in the early hours of 22 December 2019. The victim was a 54-year-old woman who was sitting alone on the verandah of her home when the applicant, then aged 20 and heavily intoxicated, twice approached her property before forcing his way inside.

The three offences were: aggravated entry of a dwelling with intent to commit a serious indictable offence and break out (s 109(2) of the Crimes Act 1900, maximum 20 years); inflicting actual bodily harm with intent to have sexual intercourse (s 61K(a), maximum 20 years); and carrying out a sexual act without consent (s 61KE(a), maximum 18 months). A 25% discount was applied to the indicative sentences in recognition of the guilty pleas.

The sentencing judge in the District Court imposed an aggregate sentence of 9 years and 8 months' imprisonment with a non-parole period of 7 years. The applicant sought leave to appeal to the Court of Criminal Appeal on three grounds: error in assessing objective seriousness on count 1, failure to properly account for remorse, and manifest excess.

  • Whether the sentencing judge erred by identifying the wrong "serious indictable offence" as the relevant element when assessing the objective seriousness of count 1 (the aggravated entry offence)
  • Whether the sentencing judge erred by treating the applicant's intent as "preformed" rather than entirely spontaneous
  • Whether the sentencing judge failed to make a finding on remorse as a discrete mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, and whether that failure constituted error
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1(a): Objective seriousness and the relevant serious indictable offence
The applicant argued that the sentencing judge should have identified the s 61I sexual assault offence (which carries a lower maximum penalty) as the relevant "serious indictable offence" for count 1, rather than the s 61K(a) offence charged in count 2. The Court of Criminal Appeal rejected this argument. The consistent intent throughout the offending, of which the sentencing judge was plainly aware, was to sexually assault the victim. No error was established on this ground.

Ground 1(b): Preformed intention
The applicant contended that the offending should have been characterised as entirely spontaneous, which would have reduced its objective seriousness. The Court found it was open to the sentencing judge, on the facts, to be satisfied beyond reasonable doubt that the applicant formed the relevant intention during the 10 to 15 minutes between his first departure from and second return to the victim's property. The offending was properly characterised as opportunistic but not completely spontaneous. No error was established.

Ground 2: Remorse
This ground succeeded. The Court confirmed that remorse under s 21A(3)(i) of the Sentencing Act is a discrete mitigating factor that must be considered separately from related questions of rehabilitation and risk of reoffending. The sentencing judge appeared to conflate the applicant's uncertainty about his ability to explain or remember the offending with an absence of remorse, without making any finding either way on the remorse question itself. The Court found this to be error. The applicant had given unchallenged sworn evidence of remorse, including written expressions of contrition that were not tested in cross-examination. In those circumstances, a finding of genuine remorse was warranted.

Re-sentencing
The Court adopted all of the sentencing judge's other findings and re-sentenced the applicant on the basis that he was genuinely remorseful. The aggregate sentence was reduced from 9 years and 8 months to 9 years' imprisonment. The non-parole period was reduced from 7 years to 6 years and 6 months. Given the Court's finding on ground 2, the manifest excess ground did not require separate determination.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence of 9 years and 8 months imposed by McLennan SC DCJ on 12 November 2020 quashed.
  • In lieu thereof, an aggregate sentence of 9 years' imprisonment imposed, commencing 23 December 2019 and expiring 22 December 2028.
  • Non-parole period of 6 years and 6 months, expiring 22 June 2026.

Key Takeaways

  • Remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 is a discrete mitigating factor requiring a separate finding; it cannot be subsumed into or conflated with assessments of rehabilitation or risk of reoffending.
  • Where an offender gives sworn evidence of remorse through written expressions that are not challenged in cross-examination, a sentencing court should make a finding on that evidence rather than leaving the question unresolved.
  • An offender's inability to fully explain or remember their offending does not, of itself, preclude a finding of genuine remorse.
  • No error arose from identifying the s 61K(a) offence (inflicting actual bodily harm with intent to have sexual intercourse) as the relevant serious indictable offence underpinning count 1, where that intent was consistently present throughout the offending sequence.
  • A gap of 10 to 15 minutes between an initial approach and a return to commit the offending was sufficient to support a finding, beyond reasonable doubt, that the intent was formed during that interval, placing the conduct in the category of opportunistic rather than entirely spontaneous offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 61I, 61K(a), 61KE(a), 109(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2B), 53A
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Alvares v R; Farache v R [2011] NSWCCA 33
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- CR v R [2020] NSWCCA 289
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- House v The King (1936) 55 CLR 499
- Imbornone v R [2017] NSWCCA 144
- Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37
- Medcalf v R [2016] NSWCCA 209
- R v Biber [2018] NSWCCA 271
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- The Queen v De Simoni (1981) 174 CLR 383; [1981] HCA 31
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Williams v R [2012] NSWCCA 172
- Yun v R [2017] NSWCCA 317