Citation: Sharma v R [2022] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 15 September 2022
Judges: Beech-Jones CJ at CL, Adamson J, Bellew J
Background
The applicant met one victim through a dating app. Knowing she suffered from a painful neurological condition, he told her he could provide pain relief medication, but instead gave her several tablets of Zolpidem, a sedative. While she was unconscious, he photographed her partially naked and sexually assaulted her on three occasions.
When police arrested the applicant, analysis of his phone revealed intimate images and videos of two further victims taken without their consent. The applicant pleaded guilty to six counts: causing a person to take an intoxicating substance to enable the commission of an indictable offence, two counts of sexual intercourse without consent (with a further similar count on a Form 1), intentionally recording intimate images of the first victim without consent, intentionally recording intimate images of a second victim without consent, and attempting to record an intimate image of a third victim without consent.
The sentencing judge imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years, applying a 25% discount across the indicative sentences to reflect the guilty pleas. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.
Legal Issues
- Whether the aggregate sentence of 11 years was manifestly excessive.
- Whether manifest excess could be demonstrated by reference to the undiscounted aggregate sentence (that is, by working backwards to estimate what the sentence would have been without the guilty plea discount).
- Whether the 25% discount for guilty pleas had been incorrectly applied to particular counts.
- Whether comparable cases involving similar offending supported the conclusion that the sentence was excessive.
Decision
The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Bellew J (with Beech-Jones CJ at CL and Adamson J agreeing) characterised the offending as a disgraceful and intrusive interference with the personal integrity of all three victims, requiring a stern sentence to give effect to general deterrence and denunciation. The maximum penalties available under the relevant legislation served as the appropriate guidepost, and the applicant's subjective circumstances were found to be generally unremarkable.
On the question of using the undiscounted aggregate sentence as a comparator, the Court expressed the view that doing so is contrary to principle. Even if that approach were permissible, the Court found it would have been of no utility on the facts here. Attempting to isolate a notional "undiscounted aggregate" risks reducing sentencing to a mechanical arithmetic exercise, overlooking the fundamental nature of sentencing as an exercise in instinctive synthesis.
Beech-Jones CJ at CL added that there is limited utility in comparing aggregate sentences across cases, particularly where each aggregate encompasses different offences. It is one thing to use comparable cases to ascertain a range of sentences for particular offences; it is quite another to try to derive a range of notional discounts embedded within aggregate sentences for the purpose of challenging manifest excess.
The comparable cases relied upon by the applicant were, on his own counsel's concession, distinguishable in both objective and subjective circumstances. Taking those distinctions into account, the Court found the cases provided no support for a conclusion of manifest excess. The sentencing judge's findings on objective seriousness and subjective circumstances were unchallenged, and no error in the application of the discount was demonstrated.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an approach to manifest excess based on reverse-engineering an undiscounted aggregate sentence is contrary to sentencing principle and, in any event, of limited utility where the offences making up the aggregate differ across cases.
- Comparing aggregate sentences across cases has limited value when each aggregate encompasses a different mix of offences; the more principled approach is to compare sentences for particular individual offences.
- Reducing the guilty plea discount to a mathematical component capable of extraction from an aggregate sentence was rejected as inconsistent with sentencing as a process of instinctive synthesis.
- Where an applicant concedes that the cases relied upon for comparative purposes are distinguishable on both objective and subjective grounds, those cases will carry little weight in establishing that a sentence is manifestly excessive.
- Serious sexual offending involving multiple victims and a calculated breach of trust, such as drugging a victim under the pretence of providing pain relief, calls for stern sentences to give effect to general deterrence and denunciation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- BB v R [2021] NSWCCA 283
- Chartres-Abbott v R [2021] NSWCCA 239
- Clarke v R [2021] NSWCCA 248
- Dinsdale v The Queen [2000] HCA 54
- DL v R [2020] NSWCCA 164
- Doe v R [2013] NSWCCA 248
- Greenwood v R [2014] NSWCCA 64
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- JM v R [2014] NSWCCA 297
- Kelly v R [2017] NSWCCA 256
- Lee v R [2016] NSWCCA 66
- Markarian v The Queen [2005] HCA 25
- Moodie v R [2020] NSWCCA 160
- Pearce v The Queen [1998] HCA 57
- Postiglione v The Queen [1997] HCA 26
- R v Reyes [2005] NSWCCA 218
- Samadi v R; Djait v R [2008] NSWCCA 330
- Shi v R [2020] NSWCCA 250
- Smith v R [2020] NSWCCA 181
- Vaiusu v R [2007] NSWCCA 71
- Zahorsky v R [2013] NSWCCA 286