Citation: Dennis v R [2024] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 26 July 2024
Judge(s): Harrison CJ at CL, Garling J (primary judgment), McNaughton J
Background
The applicant pleaded guilty in the District Court to two counts of aggravated sexual intercourse without consent (and an attempt) under the Crimes Act 1900, both aggravated by the infliction of actual bodily harm. He also asked the court to take into account, on a Form 1, an offence of intimidation under the Crimes (Domestic and Personal Violence) Act 2007. A Form 1 procedure allows a sentencing court to consider additional offences alongside the principal charges, which can affect the overall sentence.
The intimidation offence arose after the principal offending, when the applicant returned to the victims' unit demanding his shoes and repeatedly charged at one of the victims, raising his fist close to her face. During that confrontation, the victim told the applicant that her son also lived at the unit and she did not want trouble. The sentencing judge treated this as an established fact that a child was present in the home during the intimidation, and found this an aggravating circumstance.
At sentencing, the parties consented to the admission of the applicant's juvenile criminal history. The sentencing judge used that history, but drew findings favourable to the applicant from it. The applicant was ultimately sentenced to an aggregate term of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 2 months. He sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge made an error of fact by treating a statement made by the victim (that her son lived at the unit) as an agreed admission that a child was actually present during the intimidation offence, and by finding that this aggravated the objective seriousness of that offence.
- Whether the sentencing judge erred in admitting the applicant's juvenile criminal history into evidence, and in having regard to it at sentencing, in circumstances where s 15 of the Children (Criminal Proceedings) Act 1987 prohibits such use.
- Whether the resulting sentence was manifestly excessive.
Decision
Ground 1: Mistaken facts regarding the Form 1 offence
The Court of Criminal Appeal found that the sentencing judge erred in treating the victim's statement that her son lived at the unit as an agreed fact that a child was physically present during the intimidation offence. The victim's comment was made in the course of the confrontation and did not amount to an admission by the parties that a child was in the home at the relevant time. As a result, the sentencing judge's finding that the objective seriousness of the intimidation was heightened by the proximity of a child was based on an incorrect factual foundation.
Ground 2: Juvenile criminal history
The Court held that admitting the applicant's juvenile criminal history was contrary to s 15 of the Children (Criminal Proceedings) Act 1987. That provision prohibits the use of offences committed as a child in later proceedings, regardless of the purpose for which the material is tendered. Critically, the Court confirmed that the prohibition applies even where the juvenile history is tendered by the applicant in an attempt to mitigate sentence. The parties' consent to its admission did not cure the error.
Ground 3: Manifest excess and resentencing
Having found error on the first two grounds, the Court resentenced the applicant. The Court gave full weight to the applicant's subjective case, including his guilty plea (attracting a 25% discount), his progress in custody, his engagement with rehabilitation programs, and evidence of post-release employment prospects. The Court also identified special circumstances justifying a longer parole period, given the applicant's need for extended supervision to support drug abstinence and rehabilitation.
Orders Made
- Leave to appeal granted.
- Sentence imposed in the District Court quashed.
- Aggregate sentence of 7 years imprisonment substituted, with a non-parole period of 3 years and 9 months.
- Sentence to commence 13 March 2021; earliest eligible release date 13 December 2024.
Key Takeaways
- A victim's spontaneous statement during an altercation (that her child also lived at the property) does not, without more, constitute an agreed admission that a child was physically present during the offence. Treating such a statement as an agreed fact is an error capable of vitiating a sentence.
- Under s 15 of the Children (Criminal Proceedings) Act 1987, a sentencing court cannot admit or have regard to an offender's juvenile criminal history, even where the offender consents to its admission and seeks to use it in mitigation. The prohibition is not displaced by the parties' agreement.
- The Court of Criminal Appeal confirmed that errors in the factual basis for aggravating a Form 1 offence can constitute a material sentencing error, not merely a technical one, where they inflate the assessed objective seriousness.
- Consent by the parties to the admission of otherwise prohibited material does not override a statutory prohibition. The Court's obligation to comply with legislative restrictions on admissibility operates independently of the parties' wishes.
- In resentencing, the Court gave weight to the applicant's rehabilitation efforts, employment prospects on release, and the need for extended community supervision, while maintaining that subjective factors cannot outweigh the seriousness of the primary offending.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15
- Crimes Act 1900 (NSW), ss 61J(1), 344A(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Cases
- Dungay v R [2020] NSWCCA 209
- Fayad v R [2017] NSWCCA 81
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Newman (a pseudonym) v R [2019] NSWCCA 157