Citation: Regina v Roger Slater [2003] NSWCCA 178 (revised 15 July 2003); reported at 142 A Crim R 322
Court: New South Wales Court of Criminal Appeal
Date: 1 July 2003
Judge(s): Shaw J; Grove J
Background
The appellant pleaded guilty before Sorby DCJ in the District Court to two counts of sexual intercourse without consent under s 61D of the Crimes Act 1900. The offences involved his daughter and were committed across two distinct periods: the first when she was 12 years old (December 1981 to February 1982), and the second when she was 21 (February to March 1991). Four further similar offences were taken into account on a Form 1.
The sentencing judge imposed four years imprisonment on count 1 (with a two-year non-parole period) and a fixed term of two years and six months on count 2, with the sentences running partly concurrently and partly cumulatively. The overall effect was a five-year sentence with a three-year non-parole period.
The appellant sought leave to appeal on the ground that the sentences were excessive, primarily arguing that the sentencing judge had failed to adequately apply the sentencing range that existed at the time the offences were committed.
Legal Issues
- Whether the sentencing judge failed to give adequate weight to sentencing practice and range at the time of the commission of the offences, given that sentencing policy had since moved adversely to offenders in this category
- Whether the sentencing judge erred by relying on a breach of trust arising from the family relationship in a way that impermissibly treated an aggravating circumstance from a more serious, uncharged offence (the De Simoni principle)
- Whether the overall sentence was manifestly excessive in light of the delay since the offences and the appellant's subjective circumstances
Decision
The Court confirmed that an offender is entitled to be sentenced in accordance with the sentencing policy and range applicable at the time of the offence, where that policy has since moved adversely to offenders. This principle, established in R v MJR (2002) 54 NSWLR 368, was accepted by both the sentencing judge and the Court of Criminal Appeal.
The principal difficulty was the absence of reliable statistical data for the relevant period. The Judicial Commission data produced by the Crown covered October 1995 to September 2002 and involved a relatively small sample. The Court found that the sentencing judge was correct to approach the task using the methodology endorsed in R v Moon: assessing the objective seriousness of the offending against the maximum penalty prescribed at the time, in the absence of cogent statistical material capable of establishing a historical sentencing range.
On the De Simoni ground, the Court found no error. The sentencing judge's reference to a breach of trust arising from the family relationship was qualitatively distinct from the aggravating circumstance of a victim being "under the authority" of an offender under s 61J of the Crimes (Child Amendment) Act 1985. The Crown had not charged the more serious offence, and the sentencing judge had not treated that aggravating circumstance as bearing on penalty.
The Court acknowledged that the sentence may have sat at the high end of the available range, particularly having regard to the historical sentencing environment. However, the conclusions reached were reasonably open to the sentencing judge, who had carefully considered all relevant factors including a 25 per cent discount for the utilitarian value of the early guilty plea, rehabilitation efforts, and the delay between offending and sentence. Leave to appeal was granted but the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Where sentencing practice has moved adversely to an offender since the time of the offence, a sentencing court must take into account the range applicable at the date of the offending, and is not entitled to refuse to do so.
- In the absence of reliable statistical material establishing that historical range, the approach endorsed in R v Moon applies: the court assesses objective seriousness by reference to the nature of the criminal conduct measured against the maximum penalty then prescribed, which effectively aligns the sentence with legislative and judicial policy at the time of the offence.
- The De Simoni principle prohibits a sentencing court from treating as an aggravating factor a circumstance that would have constituted a more serious, uncharged offence; however, referring to a breach of trust arising from a family relationship does not, without more, amount to such an error.
- A sentence that sits at the high end of the available range is not, on that basis alone, beyond what is reasonably open to a sentencing judge who has conscientiously considered all relevant factors.
- Upholding the sentence, the Court of Criminal Appeal confirmed that subjective factors, including delay, rehabilitation efforts, counselling, acceptance of fault, and a guilty plea that spared the complainant from giving evidence, are relevant mitigating considerations but do not necessarily displace a substantial custodial term for serious historical child sexual offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61D
- Crimes (Child Assault) Amendment Act 1985 (including s 61J)
- Sentencing Act 1989 (NSW) (referred to in context of the abolition of remissions)
Cases
- De Simoni v The Queen (1981) 147 CLR 383
- Pearce v The Queen (1998) 194 CLR 610
- R v DJS [2001] NSWCCA 189
- R v Hudson (Unreported, NSWCCA, 30 July 1998)
- R v Maclay (1990) 46 A Crim R 340
- R v MJR (2002) 54 NSWLR 368
- R v Moon (2000) 117 A Crim R 497
- R v Shore (1992) 66 A Crim R 37
- R v Watson [1999] NSWCCA 227