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Court of Criminal Appeal 8 February 2023

R v Pickard

[2023] NSWCCA 7

Sexual offences
CRIMINAL LAW NO ERROR ESTABLISHED APPLICATION FOR LEAVE GRANTED APPEAL DISMISSED CRIME AGGRAVATED INDECENT ASSAULT

Citation: Pickard v R [2023] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 8 February 2023
Judges: Garling J, Adamson J, N Adams J

Background

The applicant was a private HSC tutor who held a Doctorate in Literature and had operated a tutoring business since 1992. He was convicted, following a jury trial in March 2020, of 17 counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW). The offences were committed against two teenage female students, both aged between 16 and 18, during tutoring sessions conducted at the applicant's Sydney apartment. The circumstance of aggravation was that each victim was under his authority at the time.

The assaults involved repeated physical contact of a sexual nature during lessons, including touching and groping of the victims' breasts and pubic areas, carried out while the applicant continued conducting the lessons as though nothing had occurred. Thirteen counts related to one victim and four to another; the two victims attended different schools and the respective series of offences were separated by approximately four years.

The sentencing judge imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 9 months, commencing 19 June 2020. The applicant sought leave to appeal against the sentence, ultimately pressing only one ground: that the sentencing judge had failed to provide adequate reasons for declining to find special circumstances.

  • Whether a sentencing judge is obliged to provide reasons when declining to make a finding of "special circumstances" under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), where credible material capable of supporting such a finding was before the court.
  • Whether the sentencing judge's reasons for declining to find special circumstances were adequate, such that an appellable error was established.

Decision

Under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, when imposing an aggregate sentence for two or more offences, the balance of term remaining after the non-parole period must not exceed one-third of the non-parole period unless the court finds special circumstances and records its reasons for that finding. This is commonly described as the "statutory ratio," which in practical terms means the non-parole period will represent at least 75% of the head sentence unless special circumstances are found. The applicant's complaint was not about the length of the aggregate sentence itself, but solely about the proportion he would be required to serve in custody.

The Court of Criminal Appeal found no error in the sentencing judge's approach. The Court was not satisfied that the reasons given for declining to find special circumstances were inadequate, nor that the sentencing judge had failed to adequately consider the question.

The Court also declined to accept the applicant's broader contention that a positive legal obligation exists to provide reasons whenever material capable of constituting special circumstances is placed before the sentencing court. N Adams J endorsed observations made by Basten JA in Rizk v R [2020] NSWCCA 291, cautioning against appeal courts imposing additional sentencing duties where breach could affect the length or conditions of a sentence. The Court noted that what had developed as common practice had, over time, been progressively recharacterised as a duty, and expressed restraint about extending that further.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's reasons for declining to find special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, even where the applicant placed material before the court that was capable of supporting such a finding.
  • The Court of Criminal Appeal confirmed that it is not satisfied a positive "obligation" exists, in the terms contended, requiring a sentencing judge to explain a decision not to find special circumstances whenever relevant material is tendered.
  • Under s 44(2B), the statutory ratio requires that the balance of term after the non-parole period must not exceed one-third of the non-parole period for an aggregate sentence, absent a special circumstances finding with recorded reasons.
  • In dismissing the appeal, the Court endorsed Basten JA's caution in Rizk v R against appeal courts progressively imposing additional sentencing duties, noting that each such duty generates further grounds for resentencing on appeal.
  • Most principles developed under s 44(2) of the Crimes (Sentencing Procedure) Act concerning special circumstances apply equally to s 44(2B), which governs aggregate sentences for two or more offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2A), 44(2B), 53A, 54B

Cases:
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- CM v R [2020] NSWCCA 136
- GP v Regina [2017] NSWCCA 200
- Haak v R [2022] NSWCCA 28
- House v The King (1936) 55 CLR 499
- JM v R [2014] NSWCCA 297
- Le v R [2022] NSWCCA 243
- Martinez v R [2022] NSWCCA 12
- Mattar v R [2012] NSWCCA 98
- Pearce v The Queen (1998) 194 CLR 610
- Quayle v R [2010] NSWCCA 16
- R v Fido [2004] NSWCCA 172
- R v Novakovic [2004] NSWCCA 437
- R v Simpson (2001) 53 NSWLR 704
- Rizk v R [2020] NSWCCA 291
- Singh v R (2020) 104 NSWLR 43