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Court of Criminal Appeal 15 December 2023

Stein v R

[2023] NSWCCA 324

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Stein v R [2023] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 15 December 2023
Judges: Wilson J (with Fagan J and Sweeney J agreeing)

Background

The applicant was convicted by jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following a trial in February and March 2022. Both offences occurred during a single incident in April 2019 involving a 16-year-old victim. The first count concerned digital-vaginal penetration; the second concerned penile-vaginal intercourse.

On 13 May 2022, the sentencing judge in the District Court imposed an aggregate sentence of 6 years' imprisonment with a non-parole period (NPP) of 3 years and 7 months. Indicative sentences were specified for each count under the aggregate sentencing regime. The applicant had no prior criminal history.

The applicant sought leave to appeal against the sentence to the Court of Criminal Appeal, also requiring an extension of time, which was granted without opposition. Six grounds of appeal were advanced, each targeting a specific aspect of the sentencing judge's reasoning or the overall result.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge gave insufficient weight to the applicant's diagnosed disability (including Asperger's autism and ADHD)
  • Whether the sentencing judge gave insufficient regard to the applicant's history of early childhood deprivation
  • Whether the sentencing judge erred in assessing the applicant's prospects of rehabilitation and likelihood of reoffending
  • Whether the sentencing judge attributed excessive weight to the harm suffered by the victim
  • Whether the aggregate sentence was manifestly excessive

Decision

Objective seriousness: The Court of Criminal Appeal upheld the sentencing judge's assessment that the offences fell within the mid-range of objective seriousness. The offending occurred while the victim was asleep, involved repeated acts during the same incident, and continued despite multiple clear refusals. Wilson J found no error in that characterisation.

Disability and childhood deprivation: The applicant relied on diagnoses of Asperger's autism and ADHD, as well as accounts of early childhood deprivation, to argue these factors had been insufficiently weighed in mitigation. The Court found the sentencing judge had considered the relevant psychiatric evidence and applied the correct principles, including those from Bugmy v The Queen (2013) 249 CLR 571 regarding the ongoing relevance of childhood deprivation to moral culpability. No error was established.

Rehabilitation and reoffending: The Court found the sentencing judge had not misapplied the relevant principles in assessing the applicant's prospects of rehabilitation or the risk of reoffending. The sentencing judge's conclusions on these matters were open on the evidence before her.

Harm to victim and manifest excess: The Court rejected the contention that the victim's harm had been given disproportionate weight. On the question of manifest excess, the Court noted that sentencing statistics cited by the applicant were of limited utility because they related to single-offence matters, whereas the applicant was sentenced for two counts. Taking into account the maximum penalty of 14 years, the standard non-parole period of 7 years, the mid-range objective gravity, the fact that there were two offences, and the applicant's subjective case, the Court concluded the aggregate sentence was not unjust and disclosed no error of principle.

Orders Made

  • Leave to appeal against the sentence imposed on 13 May 2022 granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing all six grounds, the Court of Criminal Appeal confirmed that an appellate court will not intervene in a sentence merely because it might have exercised the discretion differently; the applicant must establish that the sentence was unreasonable or plainly unjust.
  • Sentencing statistics published by the Judicial Commission carry limited weight on manifest excess arguments where the statistical sample relates to a different factual scenario, such as single-offence matters compared to a two-count sentence under an aggregate regime.
  • Under the principles in Bugmy v The Queen, a history of childhood deprivation remains a relevant mitigating consideration regardless of the passage of time, but its weight is a matter for the sentencing judge, and findings within the available range will not constitute appellate error.
  • A disability, including autism spectrum disorder and ADHD, must be assessed by the sentencing court in light of the psychiatric evidence; the mere existence of a diagnosis does not compel a particular sentencing outcome.
  • Victim impact evidence is a legitimate sentencing consideration under the Crimes (Sentencing Procedure) Act 1999 (NSW), and attributing significant weight to serious harm suffered by a victim does not, without more, amount to error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2), 44(2), 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Evidence Act 1995 (NSW), s 66

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Lawrence v R [2023] NSWCCA 110
- WW v R [2023] NSWCCA 311
- Hughes v R [2018] NSWCCA 2
- Sigalla v R [2021] NSWCCA 22
- Alseedi v R [2009] NSWCCA 185