Citation: R v Desborough [2000] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 1 May 2000
Judge(s): Hulme J; Carruthers AJ
Background
The applicant pleaded guilty in the District Court to two offences: sexual intercourse with a person aged between 10 and 16, and aggravated indecent assault. The offences involved the applicant's stepdaughter, who was 11 years old at the time. The applicant had been drinking heavily on the day in question and the incident occurred while his wife was at work.
Immediately after the incident, the applicant confessed to his wife by telephone, refused to keep the matter within the family, and independently contacted the Child Abuse Prevention Service. He subsequently cooperated fully with police and entered pleas of guilty at the earliest opportunity.
At sentencing in the District Court, Judge McGuire imposed a minimum term of 18 months with an additional term of 21 months on the primary offence, and a concurrent sentence of 12 months on the second offence. The applicant sought leave to appeal against the sentence.
Legal Issues
- Whether the sentencing judge gave appropriate weight to mitigating factors, including the applicant's early guilty plea, contrition, cooperation with authorities, and the isolated, situational nature of the offending.
- Whether the sentencing judge placed undue weight on the adverse Cedar Cottage pre-trial diversion assessment report, particularly given the applicant was ultimately assessed as unsuitable for that program.
- Whether the original sentence, which included a non-parole period and a substantial additional term, was appropriate in the circumstances.
- Whether it was appropriate for the Crown to tender the pre-trial diversion report at sentencing once the applicant had been assessed as unsuitable for the program and the Pre-trial Diversion of Offenders Act 1995 had ceased to apply.
Decision
The Court of Criminal Appeal found that the sentencing judge had placed excessive weight on the Cedar Cottage diversion report. Hulme J noted that the applicant's conduct on the night of the offence, including his immediate telephone confession, his refusal to suppress the matter, and his self-referral to authorities, demonstrated a genuine appreciation of the seriousness of what had occurred. The Court also found it unsurprising that the applicant showed low motivation for formal treatment, given the offending appeared isolated to a single night of intoxication rather than reflecting an ongoing pattern of behaviour.
The Court accepted that the applicant had lived in a household with young children for 14 years without any prior or subsequent inappropriate conduct, that the victim showed no observable emotional change following the incident, and that the applicant retained the support of both his wife and the victim. While the Court affirmed that general deterrence is an important sentencing consideration in cases of this kind, it found that the combination of mitigating factors justified a significantly reduced sentence.
The Court quashed the original sentence and replaced it with a fixed term of 12 months' imprisonment from the original sentencing date. Because that period had already been served by the time of the appeal hearing, the Court noted the applicant was entitled to immediate release.
Carruthers AJ added a separate observation about the pre-trial diversion report. Once an offender is assessed as unsuitable and section 16 of the Pre-trial Diversion of Offenders Act 1995 operates to remove the Act's application, his Honour considered it potentially in conflict with that provision for the Crown to tender, and the sentencing court to rely upon, a report containing adverse commentary generated under the diversion program. Counsel for the Crown indicated the matter would be referred to the Director of Public Prosecutions for further consideration.
Orders Made
- The sentence imposed by Judge McGuire on 29 April 1999 was quashed.
- The applicant was sentenced to a fixed term of imprisonment of 12 months from 29 April 1999.
- The effect of the orders was that the applicant was entitled to immediate release.
Key Takeaways
- A sentencing court's reliance on a pre-trial diversion assessment report was scrutinised on appeal where the report's adverse conclusions were found to be inconsistent with other evidence, including the offender's conduct immediately following the offending.
- The Court of Criminal Appeal confirmed that general deterrence remains a significant sentencing factor for child sexual offences, but it must be weighed against all relevant mitigating circumstances, including an early plea, genuine remorse, and self-reporting to authorities.
- Carruthers AJ raised a question, without finally resolving it, about whether tendering a pre-trial diversion report at sentencing is consistent with section 16 of the Pre-trial Diversion of Offenders Act 1995 once an offender has been assessed as unsuitable for the program.
- An isolated, unpremeditated offence committed under significant intoxication, with no prior or subsequent similar conduct, was treated as a relevant distinction from cases reflecting a pattern of offending.
- In reducing the sentence to a fixed term already served, the Court gave practical effect to its view that the mitigating factors substantially reduced the criminality properly attributed to the applicant.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61C(2), 61M(1) (offences of sexual intercourse with a child aged 10 to 16, and aggravated indecent assault)
- Justices Act 1902 (NSW), s 51A (plea of guilty in committal proceedings)
- Pre-trial Diversion of Offenders Act 1995 (NSW), s 16
Cases cited: No specific cases were cited in the portions of the judgment provided.