Citation: R v Sheard [2003] NSWCCA 410 revised - 24/03/2004
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2003
Judge(s): Hodgson JA, Hidden J, Hulme J
Background
The applicant pleaded guilty in the District Court to three counts of aggravated sexual assault with malicious infliction of actual bodily harm, and four counts of indecent assault. The offences were committed against a young woman who was known to the applicant, in the early hours of the morning while she was asleep at home alone. The attack involved strangulation, multiple acts of sexual assault, and threats to kill the complainant if she reported the offending.
The sentencing judge in the District Court imposed concurrent terms of ten years' imprisonment for the aggravated sexual assault counts, with a non-parole period of seven and a half years, and concurrent fixed terms of three years for the indecent assault counts. All sentences were to commence from 2 May 2002.
The applicant, who represented himself, sought leave to appeal against those sentences on several grounds, including that the sentencing judge failed to give adequate weight to his guilty plea and remorse, made an impermissible finding of premeditation, and failed to take into account his protective custody status in prison following an assault upon him by other inmates.
Legal Issues
- Whether the sentencing judge gave adequate consideration to the applicant's guilty plea and expressed remorse when fixing the sentence
- Whether the finding that the attack was planned and premeditated was open on the evidence, particularly in light of the applicant's own unchallenged evidence about the timing of his departure from the area
- Whether the sentencing judge erred by failing to take into account the applicant's experience in custody, specifically being assaulted and placed on protection, as a matter bearing on both head sentence and non-parole period
Decision
On the issue of the guilty plea and remorse, the Court found that the sentencing judge made no reference whatsoever to the applicant's evidence of remorse in the remarks on sentence, and gave only limited attention to the utilitarian value of the guilty pleas. While it was not strictly required for the judge to specify a precise discount, the Court was concerned that these mitigating factors had not received the attention they deserved.
On premeditation, the Court accepted that some evidence supported the sentencing judge's conclusion that the attack was planned, including the applicant's earlier behaviour toward the complainant and his apparent attempt to disguise his voice. However, the judge's reliance on the applicant's "dramatic" change of appearance as evidence of premeditation was found to be based on a misreading of the evidence. The applicant's own unchallenged evidence was that he left the area and changed his appearance several days after the offending, not immediately afterward, which undermined that aspect of the premeditation finding.
The Court also found that the sentencing judge made no reference to the applicant having been assaulted and stabbed by inmates while in custody, and his consequent placement on protection. This was a matter of significance that bore on both the appropriate head sentence and the non-parole period. The combination of these three errors satisfied the Court that the sentencing discretion had miscarried, warranting the Court's intervention to re-sentence the applicant.
In re-sentencing, the Court took into account the prison rehabilitation certificates produced by the applicant, found special circumstances justifying a departure from the standard proportion between head sentence and non-parole period, and corrected a further error by the sentencing judge regarding the commencement date of the pre-sentence custody, which should have been 24 April 2002, not 2 May 2002.
Orders Made
- Leave to appeal granted; appeal allowed
- Sentences on the four indecent assault counts confirmed
- Sentences on each of the three aggravated sexual assault counts quashed
- In lieu, on each aggravated sexual assault count: concurrent terms of imprisonment of 9 years, commencing 24 April 2002, with a non-parole period of 6 years and 3 months
- Applicant eligible for release on parole on 23 July 2008
- Documents produced by the applicant to be returned to him
Key Takeaways
- A sentencing court's failure to address unchallenged evidence of an offender's remorse, separately from the utilitarian value of a guilty plea, can constitute an error warranting appellate intervention, even where no specific quantified discount is required.
- Where a finding of premeditation is based in part on the offender's own evidence, the sentencing court must engage accurately with what that evidence actually established; mischaracterising its effect can undermine the finding.
- An offender's experience in custody, including being assaulted by inmates and placed on protection, is a sentencing factor bearing on both head sentence and non-parole period, and a failure to address it at all may amount to a sentencing error.
- Special circumstances justifying a departure from the standard non-parole proportion can be found where an offender is on prison protection, in addition to other relevant factors such as rehabilitation efforts.
- Even where the original sentence is not manifestly excessive, the Court of Criminal Appeal may still intervene to re-sentence if identifiable errors in the exercise of the sentencing discretion are established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault, maximum 20 years)
- Crimes Act 1900 (NSW), s 61L (indecent assault, maximum 5 years)
Cases cited: No specific cases were cited in the portions of the judgment provided.