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Court of Criminal Appeal 21 February 2024

R v Starke (a pseudonym)

[2024] NSWCCA 11

Sexual offences

Citation: R v Starke (a pseudonym) [2024] NSWCCA 11
Court: Court of Criminal Appeal, NSW
Date: 21 February 2024
Judges: Adamson JA (primary judgment); Lonergan J and Sweeney J (agreeing)

Background

The respondent (referred to by the pseudonym "Starke") was convicted by jury of aggravated sexual intercourse without consent and intimidation following a trial in the Lismore District Court. The sexual offence occurred in February 2018 when the respondent, then aged 19 years and nine months, locked his sister inside the family home, threw her to the floor, and had sexual intercourse with her without her consent, punching her in the nose during the assault. The victim, who was cognitively impaired, had turned 18 the previous day. A separate intimidation offence occurred approximately three years later when the respondent returned to the family home and made threats toward the victim.

The sentencing judge, Priestley SC DCJ, imposed an aggregate sentence of 7 years and 4 months' imprisonment with a non-parole period of 4 years and 9 months. The maximum penalty for the principal offence under s 61J of the Crimes Act 1900 (NSW) is 20 years' imprisonment, with a standard non-parole period of 10 years.

The Crown appealed, arguing the sentence was manifestly inadequate. The respondent's subjective circumstances included low intellectual functioning, no significant criminal history, and his status as a first-time prisoner who was ineligible for sex offender rehabilitation programs while in custody.

  • Whether the aggregate sentence of 7 years and 4 months' imprisonment was manifestly inadequate, having regard to the maximum penalty, the standard non-parole period, and the objective seriousness of the offending.
  • Whether the sentencing judge gave sufficient weight to the objective gravity of the offence when balancing it against the respondent's subjective circumstances, including youth and cognitive impairment.
  • Whether the purposes of sentencing, particularly rehabilitation and prevention of further offending, supported the length of sentence imposed.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously, finding that manifest inadequacy had not been established. Adamson JA delivered the primary judgment, with Lonergan J and Sweeney J agreeing.

The Court acknowledged the tension in the sentencing exercise. The objective seriousness of the offending, the familial relationship, the victim's vulnerability, the violence involved, and the location of the offence in the victim's home all pointed toward a substantial period of incarceration. The purposes of punishment and denunciation supported a significant sentence.

However, the Court found it was open to the sentencing judge to weigh these factors against the respondent's lack of any significant criminal record, his youth at the time of the offence, and his first-time custody status. Critically, the Court accepted that the purpose of preventing further offending through rehabilitation would appear to be furthered by minimising the respondent's time in custody, particularly given his cognitive impairment and his ineligibility for sex offender programs in prison.

The Court affirmed that the weight to be given to particular sentencing factors is pre-eminently a matter for the sentencing judge. The sentencing judge had also presided over the trial, giving him direct observations of the respondent's functioning. It was open to his Honour to conclude that the sentence imposed would more effectively achieve the purposes of sentencing than a longer term.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence falling well below the standard non-parole period can nonetheless be lawful where subjective factors, particularly youth, cognitive impairment, and rehabilitation prospects, are given significant weight.
  • Maximum penalties and standard non-parole periods serve as "yardsticks" in sentencing, but they are not determinative; all relevant objective and subjective factors must be weighed.
  • Where a respondent's cognitive impairment renders them ineligible for rehabilitation programs in custody, this can constitute a legitimate basis to favour a shorter custodial term as more likely to achieve the purposes of sentencing.
  • A sentencing judge who also presided at trial occupies a position of particular advantage in assessing subjective matters, having directly observed the offender's presentation and functioning.
  • The Court confirmed that the threshold for establishing manifest inadequacy on a Crown appeal is high: the sentence must be shown to be unreasonable or plainly unjust, not merely one that a different judge might have weighed differently.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 54A
- Criminal Appeal Act 1912 (NSW), s 5D
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48