Citation: Cridland v R [2024] NSWCCA 243
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2024
Judges: Stern JA; Fagan J; Ierace J
Background
The appellant was a police officer stationed in a country town in New South Wales. A 14-year-old girl was introduced to him by her school principal and her mother to receive informal counselling about peer bullying. The sentencing judge found that a sexual relationship developed from early 2020, when the complainant was 14 years old and turning 15.
Following a jury trial, the appellant was convicted on eight counts arising from that relationship. Six counts involved sexual intercourse with the complainant while she was aged between 14 and 15 years, four of which were aggravated on the basis that the offending was committed "under authority" as a police officer. The remaining counts involved requesting intimate photographs of the complainant and an attempt to pervert the course of justice by asking the complainant's mother to provide false information to investigating police.
In the District Court at Campbelltown, Judge English sentenced the appellant on 16 February 2024 to an aggregate term of 15 years' imprisonment with a non-parole period of 9 years and 9 months. The appellant sought leave to appeal to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by making findings of fact about counts on which the jury returned not guilty verdicts, thereby improperly using unproved allegations in sentencing.
- Whether the sentencing judge erred by declining to find that the appellant's moral culpability was reduced by post-traumatic stress disorder (PTSD) and alcohol abuse at the time of the offending.
- Whether the aggregate sentence of 15 years was manifestly excessive for the totality of the offending.
Decision
Ground 1: Findings on acquitted counts. The Court rejected this ground. The sentencing judge had referred in her Remarks on Sentence to the allegations contained in the counts on which the appellant was acquitted, but the Court found she had not made positive findings of fact about those allegations. A fundamental error of using unproved allegations cannot be implied without a clear indication in the remarks that the allegations were actually relied upon. No such indication was present.
Ground 2: PTSD and alcohol abuse. The Court also dismissed this ground. The evidence about the appellant's alcohol consumption was conflicting and did not compel a finding that he was affected by an alcohol abuse disorder or PTSD at the time of each offence. Critically, the appellant himself gave no evidence claiming that PTSD symptoms affected his judgment or conduct on the dates in question. He was performing his police duties capably throughout the charge period, and there was no suggestion he was under the influence of alcohol during any of the offending. It was therefore open to the sentencing judge to find that no mental disorder reduced his culpability.
Ground 3: Manifest excess. The Court upheld this ground. While the individual indicative sentences nominated by the sentencing judge were accepted as appropriate, the Court found that the degree of accumulation applied to produce the aggregate term was excessive. The Court noted that, apart from the course of justice offence, all physical sexual offending involved a single complainant across three events spanning approximately four months. A 15-year aggregate with a non-parole period of nearly ten years was characterised as unreasonable and plainly unjust in those circumstances. The Court resentenced the appellant, retaining the same indicative sentences but reducing the aggregate term on account of totality.
Orders Made
- Leave to appeal granted.
- Appeal allowed; aggregate sentence imposed on 16 February 2024 quashed.
- In substitution, the appellant sentenced to an aggregate term of 11 years' imprisonment, commencing 16 June 2023 and expiring 15 June 2034.
- Non-parole period of 7 years and 2 months, expiring 15 August 2030.
- First eligible for release to parole on 15 August 2030.
Key Takeaways
- A sentencing judge's reference to acquitted counts in Remarks on Sentence does not automatically constitute error; a finding of misuse of unproved allegations requires a clear indication in the remarks that those allegations were actually relied upon as facts adverse to the offender.
- Where an offender produces no personal evidence of PTSD symptoms affecting conduct at the time of individual offences, and continued to perform occupational duties normally throughout the offending period, a sentencing court is not compelled to find that PTSD reduced moral culpability.
- In dismissing grounds 1 and 2, the Court of Criminal Appeal affirmed that the evidentiary burden lies with the offender to establish a causal or contributory link between a mental condition and the offending conduct.
- Upholding ground 3, the Court confirmed that the totality principle operates as a meaningful constraint on aggregate sentencing: even where individual indicative terms are appropriate, excessive accumulation can render an aggregate sentence manifestly unjust.
- The "under authority" aggravation under s 66C(4) of the Crimes Act 1900 (NSW) applied here because the offender was a uniformed police officer who exploited a position of trust arising from his official role when committing the sexual offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(3) and s 66C(4) (sexual intercourse with a child aged between 14 and 16 years; aggravated form under authority)
- Crimes Act 1900 (NSW), s 91G (use of child for production of child abuse material)
- Crimes Act 1900 (NSW), s 319 (act with intent to pervert the course of justice)
Cases: No specific cases were cited in the portions of the judgment provided.