Sentencing Bench Book — Particular offences

In Markarian v The Queen (2005) 228 CLR 357 at [30]–[31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

Section 61H(1) Crimes Act 1900 provides, inter alia:

The Court of Criminal Appeal has at various times drawn distinctions between the relative seriousness of the acts referred to in s 61H. The cases are discussed below. The discussion demonstrates that drawing distinctions between specific sexual acts for the purpose of assessing the objective seriousness of an offence cannot be pressed too far. It is only one part of the task. The objective seriousness of an offence depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. While the form of intercourse “is an important factor, it is not to be regarded as the sole consideration”: R v Hibberd (2009) 194 A Crim R 1 at [56]. Other relevant matters in deciding where on the continuum of seriousness an offence lies include: “the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation … the duration of the offence”: R v Hibberd at [56], cited with approval in R v Daley [2010] NSWCCA 223 at [48]. In R v Daley at [48], Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd about the duration of an assault:

The context in which the offending occurs is an important part of determining the objective seriousness of a particular offence. In R v Hall [2017] NSWCCA 313, two forcible acts of penetration occurred over a period of about 20 to 30 minutes while the victim was threatened with being killed with a knife and dragged around a motel room while blindfolded. In those circumstances, the court described the victim’s ordeal as “utterly terrifying” and concluded the fact the victim did not sustain any significant physical harm did not lessen the objective seriousness of two offences against s 61D(1) (an earlier form of s 61J(1)): R v Hall at [118]. The offences were not of “short duration”: R v Hall at [53], [118]. Further, the sentencing judge’s description of the violence as “limited” and involving “a degree of rough handling” was a significant understatement: R v Hall at [55].

In R v O’Donnell (unrep, 1/7/94, NSWCCA), Hunt CJ at CL said that “[f]ellatio, in my opinion, is clearly less criminal than, say, anal or vaginal penetration”. Justice Grove said in R v Andrews [2001] NSWCCA 428 at [6] that Hunt CJ at CL’s statement “clearly did not intend … to reveal some matter of law” and he could only have expressed it as a matter of opinion. Further:

Although R v Andrews was a two-judge bench decision it was cited with approval and applied in R v Hajeid [2005] NSWCCA 262 at [52]; R v MS [2005] NSWCCA 322 at [16]; and R v Sanoussi [2005] NSWCCA 323 at [32].

In R v AJP (2004) 150 A Crim R 575 at [23]–[25], Simpson J reviewed the authorities on the question of whether some acts, such as penile-vaginal penetration, are more serious than others, and what factors should be considered in assessing the objective seriousness in the context of the standard non-parole period provisions. Those provisions require the judge to determine whether an offence falls in the middle of the range of objective seriousness. Her Honour said:

In R v PGM (2008) 187 A Crim R 152, the court held that it was open for the trial judge to find that the acts of cunnilingus were in general terms less serious than the penile penetration: However, at [28] Fullerton J said:

The court held in R v MS [2005] NSWCCA 322 at [16], that in some cases little may differentiate the objective seriousness of an act of fellatio from an act of penile-vaginal intercourse:

R v Oloitoa [2007] NSWCCA 177 is clearly an example of a very serious assault involving fellatio. The act of enforced fellatio was the basis of an aggravated sexual assault charge under s 61J. It was committed during a home invasion in the early hours of the morning. The respondent was armed and in company with another offender. The act was accompanied by threats of violence and completed by the respondent ejaculating in the victim’s mouth in front of her children. McClellan CJ at CL said at [42]: “the offence was marked by the personal degradation of the victim”, and later at [43]:

R v Oloitoa was cited in Cole v R [2010] NSWCCA 227 at [87] to justify a high sentence for an offence involving fellatio.

Any physical injury inflicted by penile penetration is also relevant. In R v Shannon [2006] NSWCCA 39 at [37], Howie J said:

Non-consensual sexual intercourse by digital penetration is generally less serious than an offence of penile penetration, but each case depends on its own facts: R v Hibberd (2009) 194 A Crim R 1 at [56]; R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at 3. However, there is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse: R v Hibberd at [56]. In R v Hibberd at [21], Tobias JA said that the law should change:

Justice James agreed with Price J — who had applied R v Da Silva — and his Honour reserved his position on whether the court should depart from previous statements that digital penetration is generally less serious than penile penetration at [27]. The court held nevertheless that the judge erred by focusing too heavily on the form of the forced intercourse (digital penetration) and had failed to give sufficient weight to the extent of the violence used in the offence: R v Hibberd at [66].

In R v King [2009] NSWCCA 117 at [36], the court said in response to a submission that it was open for the trial judge to find that digital penetration was less serious than penile penetration and that this was a very significant fact in the assessment of the degree of criminality:

The s 61J offence in R v Russell (unrep, 21/6/96, NSWCCA) involved anal intercourse. Justice Dunford said:

In R v Shortland [2018] NSWCCA 34, the court found the lack of a significant age gap between the 25-year-old offender and 31-year-old victim was immaterial when determining the objective seriousness of the offence. In cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant: R v Shortland at [15], [87].

A sexual assault offence is not to be regarded as at the lower end of the scale merely because intercourse did not actually occur. An attempted sexual intercourse without consent may be a serious offence, in particular where there are aggravating features: R v Grech [1999] NSWCCA 268. Section 61P provides that an attempt to commit sexual intercourse without consent carries the same penalty as if the completed offence was committed: R v Gulliford (2004) 148 A Crim R 558. It applies to ss 61I–61O inclusive.

The standard non-parole period provisions in Pt 4 Div 1A Crimes (Sentencing Procedure) Act do not apply, except for the various manifestations of the offence of attempt murder, to attempt offences: R v DAC [2006] NSWCCA 265 at [10]. The judge erred in R v DAC by applying the standard non-parole period to the offence of aggravated attempt to have sexual intercourse without consent contrary to ss 61J and 61P.

In R v AEM [2002] NSWCCA 58 at [103]–[143], the court reviewed the pattern of sentencing for offences under s 61J at that time and concluded that the cases cited by counsel did not establish a relevant pattern of sentencing. The court also cautioned against the use of Judicial Commission of NSW statistics for sexual assault offences: at [110]–[117].

Whatever view may be taken on the question of whether there is an established range, the introduction of a standard non-parole period of 10 years will have the effect of generally increasing sentences for this offence. In R v AD [2005] NSWCCA 208 at [43], Howie J said in the course of dealing with a severity appeal for a s 61J offence:

Summaries of the Crown and severity appeals for offences committed under s 61J since the introduction of the standard non-parole period can be accessed via the SNPP appeals component of JIRS.

See generally the discussion with regard to worst cases at [10-005] Cases that attract the maximum; see also The Queen v Kilic (2016) 259 CLR 256.

R v Anderson [2002] NSWCCA 304 is an example of near worst case category of a s 61J offence. Anderson was said to be worse than R v AEM [2002] NSWCCA 58 because it involved infliction of actual bodily harm. The offender had a long history of criminal conduct and committed numerous violent offences after escaping from a prison.

In R v Boatswain (unrep, 15/12/93, NSWCCA) the offender committed seven counts of aggravated sexual intercourse without consent against two different victims on different occasions. The court imposed an effective sentence of 23 years with a non-parole period of 15 years. R v Presta [2000] NSWCCA 40 was also a serious case. The applicant received a minimum term of 14 years and 3 months and additional term of 4 years and 9 months.

Section 61M is dealt with under Sexual offences against children at [17-510].

Under s 61M(1) any person who assaults another person in circumstances of aggravation is liable to imprisonment for 7 years. “Circumstances of aggravation” are defined in s 61M(3). Under s 61M(2):

Parliament has set a standard non-parole period of 5 years for an offence under s 61M(1) and 8 years for an offence under s 61M(2): items 9A, 9B, Table of Standard non-parole periods, see [8-000].

In R v Qin [2008] NSWCCA 189, offences under ss 61I and 61L that were committed in the context of a relationship between a masseuse and his customer were aggravated by a breach of the trust inherent in that relationship: at [36], [49].

See “Breach of trust” in Sexual offences against children at [17-560].

The risk of pregnancy is an aggravating factor that can be taken into account in sentence: KAB v R [2015] NSWCCA 55. The court (Wilson J and Ward JA agreeing, Simpson J in dissent) in KAB v R held that there was no denial of procedural fairness for the judge to take into account that there was a “high risk of pregnancy” when the agreed facts included that the offender had penile/vaginal intercourse with his step-daughter and ejaculated into her vagina where neither party had raised the issue at the sentencing hearing. On appeal, the offender argued that had he known the judge was going to take this factor into account he would have submitted evidence that he had undergone a vasectomy.

The use of a knife in sexual offences, where it can be taken into account as a matter of aggravation, is regarded by the court as abhorrent to the community, and will lead to a significant increase in the sentence: R v Rothapfel (unrep, 4/8/92, NSWCCA) per Studdert J at [12]. Offenders who use knives in sexual attacks must expect stern punishment: R v H (unrep, 23/8/96, NSWCCA) per Studdert J.

It is an aggravating circumstance where a victim is assaulted in his or her own home both at common law and under s 21A(2)(eb) Crimes (Sentencing Procedure) Act. Break and entry into a dwelling-house is also a specified circumstance of aggravation under ss 61J(2)(h) and 66C. In R v Preston (unrep, 9/4/97, NSWCCA) at 25, Dunford J said:

Examples where sexual assault offences were committed in the context of break and enter offences include: R v Johnston [2002] NSWCCA 201; R v Anderson [2002] NSWCCA 304; R v Hoang [2003] NSWCCA 380; R v Allan [2004] NSWCCA 107; R v DAC [2006] NSWCCA 265 and R v Oloitoa [2007] NSWCCA 177.

The gravity of sexual offences is magnified by the circumstance that it involved a breach of trust which the patient reposed in a medical practitioner: R v Arvind (unrep, 8/3/96, NSWCCA) per Grove J at [16]. Criminal interference with the bodies of persons seeking health care by medical practitioners will be met with stern retribution. Patients are extremely vulnerable and taking advantage of that situation for self-gratification means that general and personal deterrence will be part of an appropriate sentence: R v Arvind.

Sexual offences which are preceded by spiking the victim’s drink are ordinarily dealt with under ss 38 and 38A. See discussion in Assault, wounding and related offences at [50-110].

Intoxication as a factor in sentencing is discussed in Subjective matters at common law at [10-480].

The general principle is that in cases involving young offenders, general deterrence is given less weight and more emphasis is placed on rehabilitation. However, where a youth behaves like an adult and commits a sexual assault of considerable gravity, the function of the courts and the primary objective of sentencing is the protection of the community: R v Nichols (1991) 57 A Crim R 391; R v Gordon (1994) 71 A Crim R 459 at 469; R v BUS (unrep, 3/11/95, NSWCCA); R v DAR (unrep, 2/10/97, NSWCCA); R v AEM [2002] NSWCCA 58; R v Alcazar [2017] NSWCCA 51 at [122]–[124]. It is not the youth of an offender per se that justifies the amelioration of a sentence, but the circumstances of a particular juvenile offender and a particular offence that may indicate that general deterrence and retribution should play a lesser role: IE v R (2008) 183 A Crim R 150 at [16]. Special considerations must be applied under Pt 2 Div 4 Children (Criminal Proceedings) Act 1987 where the offender is under 18 years of age at the time of the offence and under 21 years when charged.

See the further discussion of this factor in Subjective matters at common law at [10-430].

See discussion of this factor in Subjective matters at common law at [10-460].

The suspense or uncertainty suffered by an offender who remains silent in the hope that his or her offences will not be discovered must not be taken into account on sentence: R v Spiers [2008] NSWCCA 107 at [37]–[38] and cases cited therein. The delay enabled the sentencing judge to conclude that this offender was unlikely to re-offend, but the court noted at [39] that this was “perhaps not properly regarded as rehabilitation”.

In R v Hall [2017] NSWCCA 313, the court observed that there are cases where the descriptor “delay” is inapt and suggests “something that might have occurred earlier was deferred, postponed or put off until later”: R v Hall at [98]. In that case, the 23-year delay between the offences (in respect of which the victim had immediately complained) and his arrest was solely attributable to the respondent evading detection. The court found that the concepts of delay and “stale crime” do not automatically lead to certain consequences in sentencing, such as leniency. The underlying circumstances and their impact on the assessment of sentence must be considered: R v Hall at [98]–[99].

Rehabilitation and established good character in the time since offending is a relevant consideration: R v Hall at [100]. However, general deterrence still has a role to play. It is important it is known that the criminal justice system will punish, denounce and make an offender accountable for serious criminal offending, no matter how long it takes for them to be brought to account (where the time required to do so is not the fault of anyone else): R v Hall at [122].

See also discussion of delay in Sexual offences against children at [17-570] and Subjective matters at common law at [10-530].

The court is entitled to take into account punishment meted out by others, such as abuse and harassment and threats of injury to person and property: R v Allpass (1993) 72 A Crim R 561 at 566. In R v Holyoak (1995) 82 A Crim R 502 at 506, the court took account of the fact that the applicant had suffered substantially from personal harassment by media representatives and received a large volume of “hate” communications from members of the public. The punishment commenced, in a real sense, before his sentence.

In Sharwood v R [2006] NSWCCA 157, the judge erred by excluding evidence that the applicant was beaten in his home in the presence of his wife and daughter by two men in relation to his offences under s 61M(1). The attack resulted in physical injury and damage to the applicant’s house. The court held at [67] that the incident was a matter which should have been taken into account as a subjective circumstance justifying some degree of leniency.

See further discussion of this factor in Subjective matters at common law at [10-520].

The Criminal Procedure Act 1986 makes provisions in Ch 5 of the Act for some indictable offences to be dealt with summarily in certain circumstances. Section 260 provides:

Section 260 applies to the following sexual assault offences:

Where an offence that could have been dealt with summarily is prosecuted on indictment, the court may have regard to that fact but only in the exceptional circumstances outlined in Zreika v R (2012) 223 A Crim R 460 at [107]–[109].

See further discussion of this factor in Objective factors at common law at [10-080].

Sentencers should no longer assume that persons convicted of sexual assault, who serve their sentences in protection, will spend their time in more onerous custodial conditions than the general prison population: R v Mostyn (2004) 145 A Crim R 304 at [179]; R v Way (2004) 60 NSWLR 168 at [177] and R v Gu [2006] NSWCCA 104 at [33]. The court must base such a conclusion on evidence: R v Durocher-Yvon (2003) 58 NSWLR 581 at [22].

This factor is discussed further in Subjective matters at common law at [10-500].

The mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality of the sexual assault: R v Cortese [2013] NSWCCA 148 at [55] and cases discussed therein. The fact that an offence occurred in a domestic context does not lessen its gravity: R v Hamid (2006) 164 A Crim R 179; Heine v R [2008] NSWCCA 61 at [40]; R v Harvey (unrep, 23/8/96, NSWCCA); R v Grech [1999] NSWCCA 268 at [34]–[35]. The assessment of the seriousness of the crime will ultimately depend on the facts of the case. One common circumstance in which a pre-existing relationship has been found to diminish the seriousness of a sexual offence is where it suggests some prevarication or at least initial consent on the part of the victim: Bellchambers v R [2011] NSWCCA 131 at [47]; NM v R [2012] NSWCCA 215 at [59]; R v Cortese at [55].

This circumstance has been contrasted to an assault committed by a stranger where there is no such potential prevarication: R v Cortese at [50]. See also Boney v R (2008) 187 A Crim R 167 at [106] and NM v R at [59]. Where the offender is a stranger, a further element of fear and terror would be expected: ZZ v R [2013] NSWCCA 83 at [103]. The fact that victim knew the offender and trusted him or her will “provide little comfort”: ZZ v R at [103]. An offence which is committed where two people are engaged in intimate contact by consent and one of them fleetingly goes too far, is to be distinguished from one where the victim made her lack of consent clear and struggled: Stewart v R [2012] NSWCCA 183 at [69]. Offences committed in a domestic context as distinct from an attack from a stranger does not lessen their seriousness: ZZ v R at [104]. Sully J said in R v O’Grady (unrep, 13/5/97, NSWCCA) that where a relationship breaks down:

Grove J said, in Raczkowski v R [2008] NSWCCA 152 at [46]:

It is entirely inappropriate to focus on the prior sexual conduct of the victim or to characterise the victim’s manner of dress or behaviour as provocative and as somehow contributing to the commission of the offence: R v Radenkovic (unrep, 6/3/90, NSWCCA); R v King (unrep, 18/7/91, NSWCCA). The mere fact that the victim permitted the offender to sleep in her bed with her is not a mitigating factor: R v O’Grady (unrep, 13/5/97, NSWCCA).

Sex workers are as entitled to the protection of the law against sexual assault as other citizens. In such cases it is wrong to sentence on the basis that the psychological effect on the victim or the gravity of the offence will be less than that experienced by others: R v Leary (unrep, 8/10/93, NSWCCA) per Kirby ACJ at 6, disapproving R v Hakopian (unrep, 11/12/91, VicCCA).

In R v MAK [2005] NSWCCA 369 counsel for MSK submitted that the court should favourably consider his appeal because, having come from Pakistan, he was culturally conditioned by its “very traditional views about women”. This submission was emphatically rejected by McClellan CJ at CL at [4]:

Counsel for MSK raised the issue of the relevance of cultural conditioning again at first instance in R v MSK [2006] NSWSC 237. Justice Hidden at [45] rejected the submission because it had no factual basis:

Intoxication as a factor in sentencing is discussed in Subjective matters at common law at [10-480].

There must be evidence before the court to warrant a finding that the injury and emotional harm caused by the offence was substantial within the terms of s 21A(2)(g). Additional evidence of harm ordinarily found in a victim impact statement is required. In R v Cunningham [2006] NSWCCA 176, a child sexual assault case, the judge erred by taking into account as an aggravating factor that the impact of the offence on the victims was substantial. No evidence was led regarding the emotional or psychological harm suffered by any of the complainants.

R v Cunningham should be read with DBW v R [2007] NSWCCA 236, where the court held that it was not necessary for expert evidence to be led on matters that have become common knowledge and which could be inferred by common sense. In this case, it was open for the judge to infer, from reports tendered at sentence, a link between the applicant’s sexual abuse of his son and his son’s inappropriate sexual conduct at school: at [29]. The judge “would have been entitled to act on the basis that there was a substantial harm”: at [38]. It was said in R v King [2009] NSWCCA 117 at [41] that it should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child: see extract from the judgment at [20-604].

The age of the victim is relevant to determining the objective seriousness of an offence. The younger the victim the more serious the crime: RJA v R (2008) 185 A Crim R 178 at [13]. Offences arising out of the home invasion of a 78-year-old woman were aggravated by her age: R v DAC [2006] NSWCCA 265 at [19]. On the other hand, an 18-year-old victim was not vulnerable for the purposes of s 21A(2)(l) on account of her age since 18 is the age of adulthood and cannot be regarded as “very young” under s 21A(2)(l): Perrin v R [2006] NSWCCA 64 at [35]. However, the victim was vulnerable on the basis that she was affected by alcohol which markedly lowered what she could appreciate and do at the time.