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CONFERENCE
Sentencing
Principles, Perspectives & Possibilities
10–12 February 2006
Hosted by the
National
Judicial College of
ANU
National Institute of Social Sciences & Law
Contact:
sentencing@law.anu.edu.au
SENTENCING
FOR CHILD SEXUAL ASSAULT:
WITH
PARTICULAR EMPHASIS ON THE
LAW OF
NSW
Mr
Ivan Potas
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
1
Sentencing
for Child Sexual Assault: With particular emphasis on the law of
NSW
There is no secret or
magical formula for sentencing offenders who sexually assault children. The sentencing
process relating to such offenders is very much the same as sentencing those who commit
other forms of serious crime; each case
is unique and the sentencing judge or
magistrate must set about evaluating all the relevant circumstances of the particular case, both objective and
subjective, and apply the relevant sentencing principles and policy
considerations that have been established under the common law
and under an increasingly
active legislature.
There are, however, in child
sexual assault cases, some patterns or commonly recurring considerations to which the
sentencing judge or magistrate should pay particular regard if the sentencing discretion
is not to miscarry. These considerations form the subject matter of this paper.
Changing face of the law
Society has witnessed in the
second half of the twentieth century, beginning with the sexual revolution of the
1960’s, an increasingly permissive attitude with regard to sexual mores, conduct and
relationships. However certain taboos remain, including the fundamental principle that
sexual activity that is not consensual constitutes a criminal offence. Children remain in
a special category on account of their vulnerability to sexual exploitation and assault and
the law provides special provisions in an attempt to protect them from this form of
crime.
Bronitt and McSherry in
their textbook Principles of Criminal Law, suggest that Australian sex laws are
being reshaped by moral panics concerning “the spread of HIV/AIDS, organized
(homosexual) paedophile rings, pornography on the internet
1
andsexual trafficking.”
2
To this list we might add
the emergence of “racism” or at least the
concern that there may be
ethnically or culturally distinct groups of individuals or gangs within the community that
appear to regard the abduction and sexual exploitation of others as fair game.
3
Whatever forces may be
operating in society there can be no doubt
that sexual assault, and
particularly child sexual assault, is a major concern and occupies a significant proportion of
the resources of the criminal justice system.
1
On 1
January 2005 the Crimes Amendment (Child Pornography) Act 2004 (NSW)
amended the Crimes Act 1900 (NSW) in relation to child
pornography offences and, amongst other things, increased maximum penalties.
This indicates the Government’s increased concern for these types of offences.
2
Simon
Bronitt and Bernadette McSherry, Principles of Criminal Law, LBC
Information Services, Pyrmont,
NSW, 2001 at 632.
3
I refer
particularly to the manifestation initially, of a small number of gang rapes in
the
2
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
The crime of child sexual
assault covers a wide range of offences carrying an equally wide range of maximum
penalties. Indeed, child sexual assault may be sub-categorized by reference not only to the
type of assault but to the age group of the victim, thus presenting a complexity that
is not shared by offences directed against adults. The date of the commission of the
crime is also important as it will be indicative of whether current or earlier patterns
of sentencing should be taken into account in the sentencing process – a topic which will
be discussed in more detail in the latter part of this paper.
Child sexual assault is not
always about adults assaulting children, but children or a mix of children and young adults
assaulting other children, as is well illustrated in R v AEM & Ors [2002] NSWCCA 40, in R v AD [2005] NSWCCA 208
and in R v Scaf [2005] NSWCCA 297. In the latter case, for example, the
ringleader, at almost 19 years of age, was the oldest of a group of
offenders, two of whom were also 18, two were 17 and two
others were just 15 years of
age, at the time they committed their offences.
4
Even when tried at law for
serious crime, the sentencing of children generally attracts a degree of
leniency with less emphasis on the principle of general deterrence than in
comparable cases committed by adults.
5
The typical case, if there be such a
thing, is the father or step-father who sexually abuses his own child. The more
extreme case is the
predatory paedophile who spends the greater part of his (usually
it will be an adult male) career or occupation, placing himself in a position of trust that
provides ready access to children in order to exercise authority over them, such as in
schools or at church, within sporting groups or camping expeditions. The modus
operandi involves facilitating the opportunity to sexually abuse children for personal
gratification.
The law does not stand
still. Instead it continues to evolve as the community learns more about the long term
consequences of child sexual assault, uncovers the extent of the problem and devises
measures to protect children not just from the offences or the offenders but from having to
undergo further trauma triggered by the investigation, interrogation, prosecution
and court processes
themselves.
6
In all this the law must
proceed without prejudicing an offender’s right to a fair trial. The
development of the criminal law and the procedures for bringing offenders to
justice simply reflect thesociety’s best efforts to find an appropriate path to
what presents as an intractable problem.
The
penalties have increased
Keen observers of
legislative activity relevant to sexual assault crime in New South
see R v
Bilal Skaf [2005] NSWCCA 297 at [61]
5
R v GDP (1991) 53 A Crim R 112; R v XYJ NSW
CCA 15 June 1992 (unreported); R v JDB [2005]
NSWCCA 102.
6
A useful
summary of initiatives designed to reduce the trauma of children giving
evidence in child sexual
assault cases is given in a concise article by the NSW Attorney General, the
Hon. Bob Debus MP entitled
“Minimising the Impact of the Court
Process on Child Victims” (2006) Vol 18 No 2, Judicial Officers
Bulletin 12–13.
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
3
of rape in New South Wales
many sex offences have been redefined, the definition of
sexual intercourse widened,
gender neutral provisions introduced, and concepts such as
“in authority” and “in
company” adopted.
7
formed the basis of the
quite radical scheme introduced by the Crimes (Sexual Assault)
Amendment Act 1981. It is worth reflecting on the penalties
prescribed under that Act.
The highest graded offence,
sexual assault category 1: inflicting grievous bodily harm
with intent to have sexual
intercourse—carried a maximum penalty of 20 years penal
servitude, while sexual
assault category 3: sexual intercourse without consent—carried
a maximum penalty of 7 years
penal servitude. However, the latter offence also
provided that if it related
to a person under the age of 16 years the offender would be
liable to a maximum penalty
of 10 years penal servitude.
Within a decade the four
tiered structure was replaced by three basic tiers of offences
with three aggravated
versions of each of these offences. The maximum penalty for
sexual assault jumped to 14
years penal servitude and the aggravated form of the
offence which included
sexual intercourse where the victim was under the age of 16
jumped to 20 years penal
servitude.
8
These reforms were
introduced pursuant to the Crimes Amendment Act 1989 (NSW) on
the basis that the law was
lagging behind community standards. Since the introduction
of legislation relating to
standard non-parole periods, sexual assault (Crimes Act s 61I)
and aggravated sexual
assault (Crimes Act s 61J) now carry standard non-parole periods
of 7 years and 10 years
imprisonment, respectively. In short the standard minimum non-
parole periods prescribed
for these offences equate to the old maximum sentences that
were prescribed under the Crimes
(Sexual Assault) Amendment Act 1981 Act.
9
There are now also a number
of offences which carry a maximum penalty of 25 years
imprisonment, including the
offence of having sexual intercourse with a child under 10
(Crimes Act s 66A)
and the offence of attempting, or assaulting with intent, to have
sexual intercourse with a
child under 10 years of age (Crimes Act s 66B). Section 66A
also carries a standard
non-parole period of 15 years.
The Crimes Amendment
(Aggravated Sexual Assault in Company) Act 2001 (NSW)
inserted s 61JA into the Crimes
Act 1900 to make sexual assault carried out in the
company of others and
accompanied by the infliction of harm, the threat of harm or the
deprivation of liberty, an
offence carrying a maximum penalty of life imprisonment.
10
7
See
generally, P Gallagher, J Hickey D Ash, Child Sexual Assault, Monograph
Series No 15, 1997,
Judicial
Commission of
8
Crimes
Act ss 61I and 61J
respectively.
9
In other
words, the penalty value (the maximum penalty) designated for offences which
once fell into
the worst
category of offences under the four tiered penalty regime is now regarded as
appropriate only
for the
non-parole period of offences falling into the middle range of objective
seriousness.
10
At the time
of writing the following two Crimes Act 61JA cases were considered by
the NSWCCA: R v
MRK [2005] NSWCCA 271; R v Hoang [2003]
NSWCCA 380, aggregate sentences of 10 yrs, npp 5 yrs
and 15 yrs,
npp 9 yrs 3 mths were imposed, respectively.
4
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
This Act may be seen as the
high watermark in the Government’s attempt to curb the
incidents of gang rape in
11
In this context “life
imprisonment” means “natural” or “never to be released” life
imprisonment, an indication
that the legislature means business when it comes to
sentencing for these kind of
offences.
It is apparent that the laws
continue to evolve in response to changing community
perceptions about the nature
and extent of serious sexual assault and in recognition of
the harm that these offences
occasion. The penalties palpably demonstrate, either by
incremental steps or
sometimes by quite dramatic leaps and bounds, an upward
movement in severity in
cases of sexual assault and particularly in cases of child sexual
assault.
12
Child
Sexual Assault Register
The State however, has not
been content to leave the problem of child sexual assault in
the hands of the sentencing
courts alone, as shown by the Child Sexual Assault Register
established pursuant to the
terms of the Child Protection (Offender’s Registration) Act
2000.
Under this legislation
offenders convicted of particular sex offences are required to
provide to police, either
after sentencing or release from prison, details about
themselves including their
residential address, their employer, the nature of their
employment and even details
relating to any car they own or regularly drive. The
reporting obligations can be
quite onerous and last for some considerable time—8 years
or 15 years, depending on
the classification as either a Class I or Class2 offence and
depending also on the number
of offences or prior offences committed. Life long
reporting is also possible,
although there is power to suspend this term.
13
In R v KNL [2005]
NSWCCA 260 the Court
of Criminal Appeal kept open the
possibility that the
question of extra-curial punishment might arise from the
requirements of the Child
Protection (Offender’s Registration) Act 2000. However, in
the particular circumstances of that case, the Court rejected the notion
that recording a
conviction instead of
imposing a non-conviction bond resulted in additional penal
consequences because the
offender would fall under the requirements for registration. In
deciding this way, the court expressed the view that
the offender was not likely at the
time of sentence or in the
future, to pursue an occupation which gave him access to
children.
11
For a
detailed discussion of this topic see, R Johns, G Griffith and R Simpson
“Sentencing “Gang
Rapists”:
The Crimes Amendment (Aggravated Sexual Assault in Company) Bill 2001”,
Briefing Paper
12/2001,
12
It is
impossible in a short paper of this kind to encapsulate the intricacies of the
many legislative
reforms
that have taken place since the 1980’s but reference you to the Judicial
Commission’s
monograph, Sentencing
Offenders Convicted of Child Sexual Assault where you will find a brief
legislative
history of developments in this area of the law. I will say more about that
study shortly.
13
Child
Protection (Offender’s Registration) Act 2000 (NSW), s 14A.
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
5
The
relevance of maximum penalties
The significance of the
maximum penalty that is prescribed for the offence is as much
relevant to child sexual
assault offences as it is to other crimes. When penalties are
raised, as in the case of many sexual assault
offences, it sends a message to the courts
that harsher penalties
should be imposed. Spigelman CJ in R v Way (2004) 60 NSWLR
168 described the maximum
penalty as the first important point of reference which must
be considered in the
sentencing exercise. In Markarian v The Queen (2005) at [30] to
[31] Gleeson CJ, Gummow,
Hayne and Callinan JJ explained that in some cases the
maximum sentence available
may be of great relevance as a sentencing yardstick and
that it invites comparison
between the worst possible case
and the case before
the court.
This principle, together
with the principle of proportionality as set out in Veen (No 2)
(1988) 164 CLR 465, provides
the limits within which the sentencing judge must work
to frame his or her
sentence.
Further it has been held
that when an offence is defined to include several categories of
conduct, the heinousness of
the conduct depends on the facts of the case. However,
there is no implication that
each category of sexual assault is as heinous as another if
done without consent. Ibbs
v The Queen14
held that the task of the
sentencing judge is to “consider where the facts of a particular case lie in a spectrum at one
end of which lies the worst type of sexual assault perpetrated by any act which
constitutes sexual penetration as defined.” In assessing offence seriousness
there will be many considerations including matters going to the level of
exploitation of the child. For example this may encompass not merely the age of
the complainant at the time of the offence, but also the age disparity between
the complainant and the offender. 15
In R v Scaf at [54]
the CCA observed that “it would be both undesirable and
inappropriate to seek to
define the category of the worst class of case” and in following
Veen (No 2) said that to qualify as a worse case it is not necessary that
it be possible to
envisage an even worse case. On the other hand “more
is required than that the case
be
regarded as a very serious
one” before the maximum penalty should be imposed.
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Deterrence and community
protection
While the penalties have
moved upwards the general principles and approach to
sentencing child sexual
offenders have remained relatively constant. In this regard the
cases reveal a consistent
and unrelenting preference for custodial sentences with
particular emphasis on
protecting the community through the application of deterrent
sentences. For example, in R
v Burchell (1987) 34 A Crim R 148, the Crown appealed against
sentences of periodic detention imposed upon the respondent in respect of
numerous counts of indecent assault committed against his stepdaughter, his
daughter and his niece at a time when they were infant children. These offences
were representative
counts not isolated
incidents. The Court
of Criminal Appeal held that the sentencing 14
(1987) 163
CLR 447. Shannon v R [2006] NSWCCA 39 at [23].
6
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
court had erred because it
had given too great an emphasis to the subjective
circumstances of the
respondent and particularly to the hardship and isolation that the
respondent would face in
prison because of his offences. The Court emphasized the
primary importance of
general deterrence as the means for ensuring that the community
is made aware of the policy
of the courts to this type of offence and substituted full time
custodial sentences upon the
respondent.
Another early decision
illustrating the court’s
approach to sentencing child sex
offenders is that of R v
Fisher (1989) 40 A Crim R 442. In that case the applicant sought
leave to appeal against
sentences aggregating to 18 years penal servitudes with a non-
parole period of nine years
and six months imposed in respect of 10 counts of various
sexual assault offences.
These offences were perpetrated upon four boys aged between 8
and 12 years and took place
over a period of about two years when the applicant was
their cricket coach. The
applicant was 51 years of age, had no prior convictions and had
confessed and pleaded guilty
at an early stage of the proceedings.
On the applicant’s behalf it
was submitted that the total sentence of 18 years was a
crushing sentence in all the
circumstances and
should be reserved for a worst case
not
one such as this where in
addition to the mitigating circumstances
already referred to,
there was no bashing or
physical violence. This submission was unsuccessful. A further
submission that concurrent
sentences rather than consecutive sentences should have
been imposed also was
rejected on the basis that cumulative sentences were appropriate
in cases of multiple victims
committed at different times.
Yeldham J, delivering the
leading judgment dismissing the appeal, said:
This Court has said time and time
again that sexual assaults upon young children,
especially
by those who stand in a position of trust to them, must be severely
punished,
and that those who engage in this evil conduct must go to gaol for a long
time, not
only to punish them, but also to endeavour to deter others who may have
similar
inclinations.16
And later in his reasons
Yeldham J said:
This Court must serve notice upon
judges who impose weakly merciful sentences
in some
cases of sexual assault upon children that heavy custodial sentences are
essential
if the courts are to play their proper role in protecting young people from
sexual
attacks by adults, which cases come in ever increasing numbers before
them, and
which are rapidly reaching epidemic proportions.17
In R v Bustos unreported
NSWCCA 27 June 1995 at 5 Gleeson CJ said that the primary
purpose of criminal
sanctions for conduct of this kind was to protect vulnerable children
and young people. Such
conduct involves a serious form of taking improper advantage
16
(1989) 40 A
Crim R 445. Note that the Crimes (Sentencing Procedure) Act 1999 (NSW) s
21A(2)(k)
now states
as an aggravating factor that “ The offender abused a position of trust or
authority in relation to
the
victim”. Other provisions, ss 21A(2)(l) and 21A(2)(m) list vulnerability of the
victim due to age and
multiple
victims or a series of criminal acts, as aggravating factors. These simply
reflect the position at
common law.
17
Ibid.
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
7
of a relationship. Victims are
entitled to the protection of the law and society is entitled
to expect offenders will be
dealt with appropriate severity.
At the risk of excessive
repetition I pause here to emphasise the following: the general
principles relating to the
sentencing of child sexual assault are well established. As a
general proposition, the need to protect the community
and to impose deterrent
sentences takes priority
over the interests of the offender. This also applies to young
offenders who behave like
adults and commit offences which are close to the worst
category of case.18
Of course the application of
subjective factors must also be considered. Thus the
utilitarian guilty plea and
evidence of remorse remain relevant mitigating factors for:
It is
always desirable for a sentencing judge to address specifically the issue of a
plea of
guilty and to deal with its utilitarian value and the question of any discount.19
Further, the courts have
held that the otherwise good character and “good works” of the
offender may carry some
weight, but not significant weight by way of mitigation of
penalty, the leading
authority being the paedophile priest case of Ryan v The Queen
(2001) 206 CLR 267.
20
In the latter case the Court of Criminal Appeal
shaved one year
off the appellant’s original
sentence and non-parole period, leaving the offender with
aggregate sentences
totalling 20 years and a non-parole period of 14 years to serve for
his offences.
In short the objective circumstances generally
prevail over the subjective ones in these
types of cases. In
exceptional cases, such as offenders suffering from an intellectual
handicap, for example, a
non-custodial sanction may be appropriate, 21
but more usually custodial
sentences are imposed. This much is clear from the results of the research
conducted by the Judicial Commission of New South Wales, to which reference
will be made shortly.
Course
of conduct and representative charges
Many child sexual assaults
are not isolated or aberrant incidents but involve a course of
conduct over extended
periods of time, as described for example, in Burchell above.
Such offences may involve
only one victim or many victims. In order to avoid the
evidentiary and substantive
difficulties in cases of multiple sexual assault cases (see S v
The Queen (1989) 168 CLR 266 for example) some jurisdictions
have introduced
legislation that requires
proof of only three offences in cases where there has been a
course of conduct of illegal
sexual behaviour over time. Some jurisdictions have an
offence of maintaining an
unlawful sexual relationship.
18
see for
example R v AEM Snr, KEM, MM [2002] NSWCCA 58.
19
R v Scaf
[2005] NSWCCA 297
citing R v Thomson; R v Houlton [200] NSWCCA 309.
20
See also R
v
character
as a mitigating factor to various offences are discussed.
21
R v Allpass
(1994) 72 A Crim R 651 at 563.
8
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
Section 125A of the Criminal
Code of
provides that a person who
maintains a sexual relationship with a young person, to
whom she is not married, is
guilty of a crime. To be made out, the offence requires that
the offender committed an
unlawful act (which is further defined) on at least three
occasions. A plea to this
offence represents acknowledgment that three unlawful sexual
acts have been committed.
Sentencing under this
provision was considered in DPP(Tas) v M [2005] 154 A Crim R
475. The agreed facts were
that the offender had sexually assaulted his step-daughter on
a regular basis over a 5
year period commencing from when she was 12 years old. The
DPP appealed on the basis
that the sentencing judge had erred in restricting his
sentences to just three
offences charged in the indictment.
In considering this issue
Slicer J referred to cases decided in other jurisdictions,
including the South Australian case of R v D (1997)
96 A Crim R 364. In that case
the
prosecution submitted that
the offences that were part of a course of conduct should also
attract sentences, but this
approach was resoundingly rejected by the Court.
In R v D, Doyle CJ
expressed the view that an approach which required the sentencing
court to identify the
number of offences with precision would simply reintroduce the
problem that the offence was
intended to ameliorate. Instead, the court should identify
the three offences, pay
regard to the duration and frequency of offending and sentence
on the basis that the
offences were part of a course of conduct. The Chief Justice ruled
out any notion that the
approach should involve identifying each offence in the course
of conduct and accumulate
maximum penalties in respect of these.
In
66EA (1) A
person who, on 3 or more separate occasions
occurring on separate
days during
any period, engages in conduct in relation to a particular child that
constitutes
a sexual offence is liable to imprisonment for 25 years.
(2) It is
immaterial whether or not the conduct is of the same nature, or constitutes
the same
offence, on each occasion.
(3) It is
immaterial that the conduct on any of those occasions occurred outside
occurred in
(4) In
proceedings for an offence against this section, it is not necessary to specify
or to prove
the dates or exact circumstances of the alleged occasions on which the
conduct
constituting the offence occurred.
The interpretation of this
provision was first considered in R v Fitzgerald (2004) 59
NSWLR 493 and the Court followed R v D, Sully
J holding that a prosecution under
s66EA should not be any
harsher in outcome
“than
sentencing for a course of conduct had it crystallized into convictions for a
number of
representative charges”.
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
9
A similar approach was taken
in R v Manners [2004] NSWCCA 181. In the light of this
interpretation of the
legislation one wonders whether there can be any forensic
advantage of prosecuting
under this provision.
Relevance
of prisoner’s safety and hardship in gaol
The issue of hardship and the
prisoner’s safety often arises in cases of child sex
offenders and drug
informers.22
As recently as
Study by the Judicial Commission of
NSW
In a study entitled Sentencing
Offenders Convicted of Child Sexual Assuat 23
the Judicial Commission of New South Wales
reviewed some 34 different types of child
sexual assault offences by
reference to the penalties imposed in the District Court of
2002 and involved a total of
467 cases where child sexual offences was recorded as the
only offence or the
principal offence where other offences were also prosecuted.
This total comprised 186
child sexual assault sentencing decisions handed down in
2000, 153 cases in 2001 and
128 cases in 2002.
24
From the overall total of
467 cases the study found that 304 or 65.1% of the offenders
received a full time
custodial sentence. This figure increased to 83.1% if periodic
detention and suspended
sentences were included in the total number of prison
sentences handed down.
22
For further
reading on protective custody and sentencing, see L Barnes “Protective Custody
and
Hardship” Sentencing
Trends No 21, Judicial Commission of
23
G Hazlitt,
P Poletti and H Donnelly, Sentencing Offenders Convicted of Child Sexual
Assault ,
Monograph
Series 25 Judicial Commission of
24
These
figures should not be confused with the total number of sexual assault offences
committed or
prosecuted
during those years.
10
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
When those convicted of
sexual intercourse/penetration offences only were analysed, it
was found that full time
custodial sentences were imposed in 82.7% of the cases with a
median term of imprisonment
of 48 months.
The latter figure may be
contrasted with a median term of 30 months imprisonment for
the indecent assault offence
category and 9 months for the act of indecency category.
Other interesting findings
include the fact that just under one-quarter of the offenders or
23.7% were given consecutive
sentences and the median aggregate sentence was 6 years
and 6 months with terms of
imprisonment ranging from two and a half years to 30
years.
The authors of the study
also took the opportunity of comparing the sentencing patterns
in this study with the
patterns of sentences handed down for similar offences in 1994.
Not surprisingly the
analysis demonstrated that overall penalties had increased over the
two periods. Offenders who
commit child sexual assault offences may anticipate being
sentenced more severely
today than in the past.
Special circumstances
Generally in NSW a term of
imprisonment (other than a fixed term) consists of two
parts: first, a non-parole
period which is the minimum term an offender is required to
serve as a punishment for
the offence and second, the balance of the sentence, that is the
time during which the
offender is eligible to be considered for release on parole.
Pursuant to s 44(2) of the Crimes
Sentencing Procedure Act 1999 (NSW) the balance of
the term of the sentence
must not exceed one-third of the non-parole period, unless the
court decides that there
are special circumstances
for increasing that proportion.
The Commission’s study found
that in 81.3% of cases the balance of the term exceeded
one third of the non-parole
period, meaning that court
found special circumstances
in
the order of 8 out of 10
cases. It also revealed that the most common proportion
between the non-parole
period and the head sentence was 50% and this was imposed in
almost a fifth of all the
cases. Indeed, about 4 out of every 10 sentences were made up
of a non-parole period of
50% or less of the head sentence.
25
At first blush one might
think that the courts must have erred in finding special
circumstances in such a
high proportion of the cases. However this figure can be
explained on the basis that
for these types of cases it is often in the public interest to
monitor such offenders in
the community for a reasonable length of time following their
release from prison and
attempt to work with them in order to provide the best
opportunity for their
rehabilitation.
However where the court does not consider that
the offender is amenable to
rehabilitation a relatively
short balance of sentence may be held to be adequate. This is
25
Hazlitt,
Poletti and Donnelly, op cit, at n 19.
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
11
well illustrated in the high
profile case of R
v Dunn [2004] NSWCCA 364, where the
Court of Criminal Appeal,
comprising Handley, JA James and Howie JJ, considered
that the offender lacked
insight into his offending, lacked contrition and was unlikely to
be rehabilitated. It
specified terms of imprisonment totalling 20 years with a non-parole
period totalling 18 years.
The most
common offences
The Commission’s study
showed that about half or 51.8% of the 467 child sexual
assault cases consisted of
just five types of offences. These were as follows:
• Aggravated indecent
assault under Crimes Act 1900
s 61M(1)
26
—maximum
penalty 7 years imprisonment
– 61cases or 13.1% of the total.
• Aggravated sexual
assault under Crimes Act 1900
s 61J
27
—maximum penalty 20 years:
52 cases or 11.1% of the total number of cases. In R v AD [2005] NSWCCA
208 it was held that this section creates only one offence and even
though there may be present
more than one aggravating circumstance this does
not raise this offence to a
higher level and thereby offends the De Simoni
principle.
28
• Sexual
intercourse/penetration with a child under 10 years: under Crimes
Act 1900 s 66A
29
—maximum penalty at the time
of the study 20 years—47
cases or 10.1% of the total
cases.
Note that the maximum
penalty for this offence was increased to 25 years for
offences committed after 1
February 2003 and that offence now carries a
standard non-parole period
of 15 years.
30
26
61M
Aggravated indecent assault
(1) Any
person who assaults another person in circumstances of aggravation, and, at the time of, or
immediately
before or after, the assault, commits an act of indecency on or in the presence
of the other
person, is
liable to imprisonment for 7 years. (2) …
(3) In this
section, “circumstances
of aggravation” means circumstances
in which: (a) the alleged
offender is
in the company of another person or persons, or (b) the alleged victim is under the
age of 16
years, or
(c) the alleged
victim is (whether generally or at the time of the commission of the offence)
under the
authority of the alleged
offender, or (d) the alleged
victim has a serious physical disability, or
(e) the alleged victim has a serious
intellectual disability.
27
61J
Aggravated sexual assault (1) Any person who has sexual intercourse with
another person without
the consent
of the other person and in circumstances
of aggravation and who knows that the other person
does not
consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this
section, “circumstances
of aggravation” means circumstances
in which: (a)
at the time
of, or immediately before or after, the commission of the offence, the alleged
offender
maliciously inflicts actual bodily harm on the alleged victim or any other person who is
present or
nearby, or (b) at the time of, or immediately before or after, the commission
of the
offence,
the alleged offender
threatens to inflict actual bodily harm on the alleged victim or any
other
person who is present or nearby by means of an offensive weapon or instrument,
or (c) the
alleged offender is in the company of another person or persons, or
(d) the alleged
victim is
under the
age of 16 years, or (e) the alleged
victim is (whether generally or at the time of the
commission
of the offence) under the authority of the alleged offender, or (f) the alleged victim
has a
serious physical disability, or (g) the alleged victim has a serious intellectual disability.
28
R v AD [2005] NSWCCA 208 at [22].
29
66A Sexual
intercourse—child under 10 Any person who has sexual intercourse with another
perso n
who is
under the age of 10 years shall be liable to imprisonment for 25 years.
12
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
• Sexual intercourse/
penetration with a child between 10 years and 16 years
of age: under Crimes Act 1900 s 66C(1)
31
—maximum penalty at the time
of
the study 8 years – (also)
47 cases or 10.1% of the total.
Note that this section was
amended by the Crimes Amendment (Sexual Offences) Act
2003 (NSW), and commenced on
13 June 2003. In summary it now provides:
– first, for an offence
against a child aged between 10 and 14 years—a
maximum penalty of 16 years
imprisonment increasing to 20 years if the
offence is committed in circumstances of aggravation;
– second, for an offence
against a child aged between 14 and 16 years—a
maximum penalty of 10 years,
increasing to 12 years if the offence occurs
in circumstances of aggravation.
• Aggravated indecent
assault with a child under the age of 10 years: 61M(2)
32
maximum penalty of 10 years:
35 cases or 7.5% of the total . Note that this
offence now carries a
standard non-parole period of imprisonment for 5 years.
The
standard non-parole period
The standard non-parole
period for an offence is the non-parole period set out opposite
the offence in the Table set
out in Division 1A of Part 4 of the Crimes (Sentencing
Procedure) Act 1999 (NSW).
33
It is taken to indicate the
non-parole period for an
offence in the middle of the
range of objective seriousness for such an offence. It has
30
Introduced
pursuant to the Crimes {Sentencing Procedure) Amendment {Standard Minimum
Sentencing)
Act 2002.
31
66C Sexual
intercourse—child between 10 and 16
(1) Child
between 10 and 14
Any person
who has sexual intercourse with another person who is of or above the age of 10
years and
under the
age of 14 years is liable to imprisonment for 16 years.
(2) Child
between 10 and 14—aggravated offence
Any person
who has sexual intercourse with another person who is of or above the age of 10
years and
under the
age of 14 years in circumstances
of aggravation is liable to imprisonment for 20 years.
(3) Child
between 14 and 16
Any person
who has sexual intercourse with another person who is of or above the age of 14
years and
under the
age of 16 years is liable to imprisonment for 10 years.
(4) Child
between 14 and 16—aggravated offence
Any person
who has sexual intercourse with another person who is of or above the age of 14
years and
under the
age of 16 years in circumstances
of aggravation is liable to imprisonment for 12 years.
(5) In this
section, “circumstances
of aggravation” means circumstances
in which: (a)
at the time
of, or immediately before or after, the commission of the offence, the alleged
offender
maliciously inflicts actual bodily harm on the alleged victim or any other person who is
present or
nearby, or (b) at the time of, or immediately before or after, the commission
of the
offence,
the alleged offender
threatens to inflict actual bodily harm on the alleged victim or any
other
person who is present or nearby by means of an offensive weapon or instrument,
or (c) the
alleged offender is in the company of another person or persons, or
(d) the alleged
victim is
(whether
generally or at the time of the commission of the offence) under the authority
of the
alleged offender, or (e)the alleged victim has a serious physical disability, or (f)the
alleged
victim has
a serious intellectual disability, or (g) the alleged offender took advantage of the
alleged victim being under the influence of alcohol or a drug in
order to commit the offence.
32
61M
Aggravated indecent assault (1) …
(2) Any
person who assaults another person, and, at the time of, or immediately before
or after, the
assault,
commits an act of indecency on or in the presence of the other person, is
liable to imprisonment
for 10
years, if the other person is under the age of 10 years.
33
Crimes(Sentencing
Procedure) Act 1999
(NSW), s 54 A(1).
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
13
been described as a
reference point or benchmark above or below the middle of the
range of objective
seriousness for the specified offence.
34
A departure from the
standard
is permitted:
wherever
the objective seriousness of the individual offence is either lesser or
greater
than that of an offence in the middle range of seriousness.
35
Way’s case makes it plain that the
maximum penalty for the offence remains the
reference point for the
legislative intent of offence seriousness. However it also
observes at [53] that the
focus shifts to the standard non-parole period as the expression
of the legislative intention
as to the minimum period of actual imprisonment for the
offence. The new regime does
not displace discretionary nature of the sentencing
process, the legislation was
not intended to be “a straight jacket for judges” and permits
reference to be made to a
range of circumstances
that would justify a departure from the
standard non-parole period.
36
The standard non-parole
period reference point has been interpreted as applying to cases
going to trial as opposed to
guilty plea cases. Those unfamiliar with the legislation may
be bamboozled by the
apparent complexity in this area of the law. This problem is
exacerbated by the fact that
many child sexual assault offences come to light and are
prosecuted many years after
they have been committed. This means that in many cases,
that is offences committed
prior to 1 February 2003 and still to come before the courts,
standard non-parole periods
will be inapplicable and courts will need to look back at the
sentencing patterns that
existed at the time of the offence. Difficulties may arise in
pattern of conduct cases
where offences fall on either side of 1 February 2003 a problem
that arises whenever the
same offence is governed by different rules or practices. This
problem will continue to
arise whenever, or as long as, there is a substantial lag between
the commission of the crime
and the sentencing process.
The
issue of delay
It is common knowledge that
many child sexual assault offences come to light many
years after they have been
committed. The Judicial Commission of
looked at the lag time
between the commission of child sex offences and sentencing and
found that over the three
year period of the study 38%, or close to 4 out of 10 cases,
involved sentences which
were handed down more than 10 years after the offence was
committed.
This figure reduces to 29%
or approximately 3 cases out of 10 for sentences handed
more than 15 years after
they were committed, and to 18% or just under 2 out of 10
imposed more than 20 years
after they were committed. I do not think any other
category of offending can match
these figures.
The courts have grappled
with these so called stale crimes. In certain circumstances
delay may be a mitigating
factor as outlined in the leading case
of R v Todd [1982] 2
34
see
generally R v Way (2004) 60 NSWLR 168 at [49].
35
ibid at
[66].
36
ibid at
[59].
14
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
NSWLR 517 at 519. However,
more usually in sexual offences committed against a
child, the offence is
concealed from others for some considerable time and is first
revealed by the child to a
third person after the child has matured. In such circumstances
delay between the offences
and sentencing carries little weight as a factor in mitigation
of penalty.
37
It has been held also that
there is little mitigation by reason of delay where
the offender remains silent
in the face of an accusation.
38
Another issue of
considerable importance relating to the issue of delay is the question of
whether the sentencing
exercise should be approached by reference to current patterns
of sentencing or by
reference to the patterns of sentencing existing at the time that the
offence was committed.
Obviously this can make a significant difference to an
appropriate sentence for a
particular offence when legislative maxima are raised over
time.
This issue was recently
reviewed by the Court
of Criminal Appeal in R v Dunn [2004]
NSWCCA 346 – the Court having the challenging
task of comparing and contrasting
the sentences imposed upon
child sex offenders of great notoriety – offenders who were
engaged in predatory
activity involving multiple counts of child sexual assault.
The principal submission on
the appeal against sentence was that the sentences imposed
were manifestly excessive
having regard to sentences imposed in other similar cases .In
support of this submission a
number of cases were presented for consideration by the
Court, including:
R v AB (unreported Court of Criminal Appeal 7
July 1997; unreported CCA 6
December
2000); R Fisk (unreported Court
of Criminal Appeal 21 July 1998); R v
(unreported
District Court
Phelan DCJ 7 November 2000); and, particularly, R v
Hill (unreported Court of Criminal Appeal 7
July 1992).
39
The Court of Criminal Appeal
noted two conflicting decisions, R v Shore (1992) 66 A
Crim R 37, and R v PLV (2001)
51 NSWLR 736. The first decision advocated the
approach that courts should,
so far as they are able, seek to impose a sentence
appropriate not only to then
applicable statutory maxima but also to the then appropriate
sentencing patterns. PLV took
a contrary view, urging that current sentencing practice
should apply. However the Court said it was bound to
follow the decision in R v MJR
(2002) 54 NSWLR 368, a
decision of five justices of the Court
of Criminal Appeal.
This case had overruled PLV (which
incidentally had not been overruled at the time that
the sentencing judge had
handed down his decision in Dunn).The principle in Shore has
prevailed.
Thus the law on this matter
in
evaluate the nature of the
criminal conduct against the policy of the legislation current at
the time of offending rather
than at the time of sentencing. This is particularly required
37
R v
Dennis NSW CCA l,
unreported, 14 December 1992
38
R v
Hathaway [2005]
NSWCCA 368;
39
R v Dunn
[2004] NSWCCA 346
at [109]
Sentencing:
Principles, perspectives & possibilities—Conference Feb 2006
15
when, as noted in R v MJR,
(2002) 54 NSWLR 368, current sentencing practice has
moved adversely against an
offender.
40
Conclusion
Without a doubt sentencing
child sex offenders remains a very difficult and challenging
enterprise. With laws and
penalties in this area changing at what appears to be at an
unprecedented rate, together
with the problems presented in many cases, of multiple
offending and of long delay
between the commission of offence and the sentencing
process, those who work
towards achieving a just outcome in sentencing for child
sexual assault face an
unenviable task.
In such a climate it is
difficult to expect, let alone achieve, consistency in the sentences
imposed. The identification
of the pattern of sentences, if there be one at all, is not a
simple task, and neither
statistics nor individual sentencing decisions can be relied upon
as a yardstick in this area
of the law. Cases differ markedly. With regard to similar
cases, the Court of Criminal Appeal,
commencing with R v Morgan (1993) 70 A Crim
R 368 at 371, warned against
the practice of directly comparing the sentences imposed
(other than for
co-offenders) where two offenders may share the same characteristics
and may have committed
similar crimes.
I fear that the
identification of a range or ranges of sentences imposed for child sexual
assault will continue to
remain elusive while the penalties themselves are constantly
varied by Parliament and
while a significant proportion of offenders continue to be
called up for sentence many
years after the commission of their crimes. This is not a
criticism of the courts but
rather an inevitable consequence of the secretive nature of
these offences many of which
come to light years after they have been committed and
of a changing legal and
social environment struggling to find the best approach within
the confines and safeguards
of our justice system.
40
R V MJR (2002) 54 NSWLR 368 at [31].
