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Court of Criminal Appeal 25 October 2022

Stephens v R (No 2)

[2022] NSWCCA 227

Sexual offences
CRIMINAL APPEAL REMITTAL FOR RE SENTENCE PAROLE PERIOD APPLICANT RE SENTENCED

Citation: Stephens v R (No 2) [2022] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 25 October 2022
Judges: Simpson AJA; Davies J; Button J

Background

The applicant was originally convicted of seven offences of child sexual assault in the District Court and sentenced to an aggregate head sentence of 7 years 9 months imprisonment. The offences involved serious sexual conduct against a boy aged 10 or 11, committed in the early 1980s when the applicant was approximately 28 years old and working as a flying instructor.

A first appeal to the Court of Criminal Appeal in 2021 resulted in one conviction being quashed, reducing the aggregate head sentence to 6 years. A further appeal to the High Court of Australia succeeded on three additional counts, which were quashed and the matter remitted to the Court of Criminal Appeal for re-sentencing on the three remaining convictions.

The three remaining counts were charged under the now-repealed s 81 of the Crimes Act 1900 (NSW), which carried a maximum penalty of 5 years imprisonment. Count 1 involved the applicant touching the victim's penis. Counts 2 and 3 involved the applicant performing oral sex on the victim on two separate subsequent occasions.

  • What aggregate sentence was appropriate for the three remaining convictions following the quashing of the other counts by the High Court?
  • Whether the indicative sentences previously set for these three counts in July 2021 should be maintained.
  • What non-parole period was appropriate, and whether the ratio between the non-parole period and the head sentence previously adopted should be replicated.

Decision

The Court noted that the July 2021 indicative sentences for the three counts (1 year for count 1, and 3 years each for counts 2 and 3) remained appropriate. No reason existed to depart from those figures, and they were maintained.

In assessing the gravity of the offending, the Court distinguished between the two types of conduct. The touching offence in count 1, while serious, sat towards the less grave end of the indecent assault spectrum as it existed under the law at the time. The repeated performance of oral sex by a mature adult on a child aged 10 or 11, however, was characterised as very grave offending. The Court emphasised that general deterrence and denunciation retain significant weight in sentencing for such conduct even when it is prosecuted many years after the fact and even when the offender has otherwise lived an exemplary life.

On totality, the Court determined that an aggregate head sentence of 4 years 6 months was appropriate, reflecting the reduction in the overall proven offending after the High Court quashed the more serious counts. The Court replicated the ratio between the non-parole period and the head sentence that had been applied in July 2021, resulting in a non-parole period of 2 years 9 months after rounding down by three weeks.

The applicant, now aged 68, had been in continuous custody since August 2019 with no prior convictions and strong character evidence. The Court noted he had made sound progress in custody, had recently commenced day leave, and assessed his prospects of continued rehabilitation upon release as excellent.

Orders Made

  • Count 1: indicative head sentence of imprisonment for 1 year recorded.
  • Count 2: indicative head sentence of imprisonment for 3 years recorded.
  • Count 3: indicative head sentence of imprisonment for 3 years recorded.
  • Aggregate head sentence of imprisonment for 4 years 6 months, commencing 26 August 2019 and expiring 25 February 2024.
  • Non-parole period of 2 years 9 months, which expired on 25 May 2022.
  • First date of eligibility for consideration for release to parole: 25 May 2022.

Key Takeaways

  • Following a High Court quashing of multiple convictions and remittal for re-sentencing, the Court of Criminal Appeal confirmed that previously set indicative sentences for remaining counts can be maintained where no reason to depart from them is identified.
  • A substantial reduction in an aggregate head sentence can result where serious convictions underpinning that aggregate are subsequently quashed on appeal, even if the nature of the remaining offending is itself serious.
  • Replicating the ratio between the aggregate non-parole period and the aggregate head sentence from a prior sentencing exercise provides a principled basis for structuring the non-parole period on re-sentencing.
  • General deterrence and denunciation remain significant sentencing considerations for historical child sexual assault even where prosecution occurs decades after the offending and the offender has otherwise lived blamelessly.
  • Positive developments in an offender's circumstances since the last sentencing exercise, including progress in custody and prospects of rehabilitation, form part of the factual matrix the court considers on re-sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 81 (repealed)

Cases:
- Stephens v R [2021] NSWCCA 152; (2021) 290 A Crim R 303
- Stephens v The Queen [2022] HCA 31; (2022) 96 ALJR 871