When we hear of an offender receiving anything but full-time imprisonment for a sexual assault offence, our initial reaction is one of outrage and surprise. But do you ever stop to think about the circumstances of the offending and the offender themselves? In all, if not most, sexual assault matters, the Court sentences an offender to full-time imprisonment because it is traditionally accepted that the "section 5 threshold" has been crossed, that is, there is no other appropriate form of penalty but imprisonment. However, the Court still retains discretion in imposing the most appropriate sentence having regard to the objectives provided by section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The case of Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 is the first case in NSW to see an offender granted a Community Corrections Order (CCO) for a prescribed sexual offence following the 2018 Sentencing Reforms introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. Prior to the sentencing reforms, the Court could impose an Intensive Correction Order (ICO) or full-time imprisonment following a finding that the section 5 threshold was crossed. Section 67 of the amended Crimes (Sentencing Procedure) Act 1999 introduced a list of offences which are ineligible for an ICO, including prescribed sexual offences.
The following is a brief summary of DPP v Burton which explains why a CCO was considered a just and appropriate penalty for the offence of sexual intercourse without consent pursuant to section 61I of the Crimes Act 1900 (NSW). The writer was the instructing lawyer appearing for the Respondent, Mr Burton, in both the District Court sentence and Court of Criminal Appeal proceedings. The case provokes thought about the limited and extreme sentencing options in NSW for prescribed sexual offences, and also how interstate offenders are treated when sentenced under State criminal legislation.
Summary of Facts
The Respondent in this matter was a man of good character, in a stable relationship, aged in his early 60s, and a long-term resident of Western Australia. On 14 October 2018, he was charged with the offence of sexual intercourse without consent pursuant to section 61I of the Crimes Act 1900 (NSW). This charge resulted from an incident which occurred at a location in North-Eastern Sydney in the very early hours of 14 October 2018, following his attendance at his son's wedding. The Respondent and the 18-year-old victim (the Respondent's niece) were both at the wedding with many other family and friends dancing, laughing, and consuming alcohol. After the celebrations, the victim did not want to sleep in her parent's hotel room, and she was invited by the Respondent and his wife to sleep in their hotel room. There was concern for the victim's substantial intoxication and her inability to stand on her own without support.
The Respondent had taken the victim to the hotel room just before his wife came up the elevator, and there was a short act of cunnilingus on the victim for a 15 second period. There was a knock at the door which caused the victim to wake up to her senses, and she ran out the door to her mother who was on the same hotel floor and nearby to the Respondent's room. The victim made an immediate complaint to her mother, who subsequently informed local police.
The Respondent was arrested and taken to the police station for questioning. The next morning he participated in an interview and made “immediate admissions”. He stated that he “kissed the lips of [the victim’s] vagina for approximately 15 seconds and thought she may have been consenting. He described the incident in the hotel room … as ‘45 seconds of madness’. He admitted what he did was stupid, wrong and repeatedly described his conduct as a ‘bad error of judgment’." He was apologetic and honest about the circumstances of the offending. See paragraph [18] of the CCA Judgment.
The Respondent recklessly understood the victim's conduct to suggest she was consenting, but because of her substantial intoxication, consent was negated. The victim was so intoxicated that she was hallucinating in the hotel room and could not accurately recall what had occurred. Accordingly, she was not capable of consenting to any form of sexual intercourse.
In July 2019, the Respondent entered a plea of guilty in the Local Court to the section 61I offence, and the matter was committed to the District Court for sentence before her Honour Judge Huggett.
District Court Sentence Proceedings
The sentencing hearing before her Honour Judge Huggett took place over two days Sydney District Court. In addition to the Statement of Agreed Facts, the Court heard the victim read her Victim Impact Statement, evidence from the Respondent's Wife, additional evidence relating to the Respondent's mental state and character, and submissions from learned Counsel for the defence and DPP.
The Crown argued that the offence was the culmination of a planned and predatory attack. It was submitted that the Respondent had demonstrated a sexual interest in his niece and ‘navigated’ her to his hotel room in order to assault her, believing he would be alone. It was further submitted by the Crown that “there was a wickedness in the way the offender exploited [the victim] and that the nature of the relationship between [them] makes his moral culpability high.” These submissions were rejected by her Honour. In taking into account the agreed facts and submissions, her Honour summarised the offending conduct as follows:
“The act of sexual intercourse committed by this offender was an act of cunnilingus, more specifically kissing the lips of his niece’s vagina for between approximately 10 to 15 seconds.
The conduct was of very short duration and appropriately described as being momentary and I am satisfied that in kissing [her] vagina, the offender used his lips and mouth rather than his tongue.
I am satisfied the offence was impulsive, spontaneous and opportunistic. I am further satisfied the offender did not take his niece to his hotel room intending to sexually or indecently assault her but rather the intention he formed to commit cunnilingus upon his niece was formed there and then and at the very time he committed that act.” (See paragraph [22] of the CCA Judgment).
The sentencing judge recognised that the imposition of a non-custodial sentence was extraordinary and required justification of “exceptional circumstances”. She did not find there was an abuse of a position of trust or authority by the Respondent, nor was there any predatory behaviour. There was strong and unchallenged evidence of the Respondent's genuine remorse and contrition, the adverse impact the offence had on his mental health, the fact that he was a man of good repute and this was an uncharacteristic aberration. There was no Sentencing Assessment Report available because he resided in Western Australia and Community Corrections had no arrangement with the equivalent office in WA to conduct an assessment.
A detailed judgement was provided by her Honour taking into account a number of factors including:
The Respondent's lack of criminal history and good character;
His mature age and poor health;
His declining mental state;
His genuine remorse and contrition;
The family isolation he experienced following the offence; and
His low risk of reoffending.
Reference was made to the Respondent's "clouded judgement" thereby reducing his moral culpability and allowing her Honour to find that the offending conduct did not cross the section 5 threshold. This alluded to his self-induced intoxication on the night of the offence.
As a consequence, her Honour imposed a 3-year Community Corrections Order, pursuant to section 8 of the Crimes (Sentencing Procedure) Act 1999.
The Crown Appeal to the CCA
Shortly after the above District Court sentence was imposed, the Crown appealed her Honour's decision to the Court of Criminal Appeal on the following grounds:
Ground 1: Her Honour fell into error taking into account intoxication to reduce the Respondent's moral culpability.
Ground 2: Her Honour failed to take into account the aggravating factor of an abuse of trust.
Ground 3: The sentence imposed was manifestly inadequate (i.e. too lenient).
In relation to Ground 1, it was conceded by the defence that it was erroneous for her Honour to have taken into account the Respondent's self-induced intoxication, contrary to section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, which states that self-induced intoxication is “not to be taken into account as a mitigating factor.” At paragraph [28] of the CCA Judgment, the Court said:
"it is clear that the “clouded judgment”, which was the consequence of self-induced intoxication, was relied upon as having reduced his moral culpability. It therefore constituted a material error, which was capable of affecting the determination that a non-custodial sentence should be imposed".
In relation to Ground 2, the defence challenged the Crown's contention that the sentencing judge could have found there was an abuse of a position of trust and authority pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The Court accepted submissions advanced on behalf of the Respondent and did not find the Crown made out Ground 2 of the appeal. In short, the evidence demonstrated that the Respondent and the victim had a remote relationship with both living in different states.
At paragraph [30], the Court said:
"Section 21A(2)(k) refers to the offender abusing “a position of trust … in relation to the victim”. The term is used by way of alternative to a position of “authority”. As the cases indicate, it should be understood as referring to an established relationship, rather than simply a situation in which the victim asserts trust in the offender, or a social arrangement involving a close knit group. As Howie J had explained in Suleman v R the aggravating factor “is not made out simply because the victim trusted the offender for some reason or other.”
Further, at paragraph [31], the Court stated:
"A position of trust is not a precise term, but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust... No doubt a position of trust could arise between an uncle and niece, but that might depend upon the circumstances attending a particular relationship, rather than the simple fact of it. Little is known in that regard. As counsel for the offender submitted to the sentencing judge, all that was known was that he resided in Western Australia and she in Sydney. There was no evidence as to the extent of the relationship."
In respect of Ground 3, the CCA Bench did not need to deal with the issue of manifest inadequacy at length, noting that the error specified in Ground 1 was conceded. However the final issue was addressed in Court's ultimate decision after considering whether or not to exercise residual discretion. "Residual Discretion" refers to the power of an appeal Court to intervene and re-sentence the offender.
Decision of the CCA
In taking into account the sentencing judge's decision, and also the fact that the Respondent lived interstate, the Court decided that it should not exercise residual discretion and allowed the District Court sentence to remain. Amongst other matters, the Court found that the sentence was still adequate given this was an exceptional case and there was evidence of the shame and destruction that flowed to the Respondent's relationship with his family and the psychological effects of the offending conduct. The Court also appreciated that there was some discrimination in the wording of provisions regulating the imposition of CCOs in NSW for interstate offenders.
At paragraphs [44] to [46], the Court said:
"44. Although on its face this result may appear beneficial to an inter-state offender, it is possible that such an offender may be less likely to be the subject of a community correction order, and more likely to be imprisoned, than a resident of New South Wales. Such differential treatment invites attention to the terms of s 117 of the Commonwealth Constitution, providing that a resident of one State “shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were … resident in such other State.” This potential concern cannot be addressed further because it was not foreseen by the parties prior to the hearing of the appeal. However, it provides a further factor militating against the Court intervening in the present case.
45. It was appropriate for the trial judge to have regard to the psychological effects of the offending conduct, and the shame and destruction of his family life which followed, as factors warranting some amelioration of the usual sentencing practice with respect to such offences. It was open to the Court not to impose a sentence of custodial imprisonment which would otherwise be justified by the objective circumstances of the offending. Although the judge approached the sentencing exercise on a legally erroneous basis, for the reasons noted above this is not a case in which the Court should intervene to resentence.
46. Accordingly, the appeal by the Director against the sentence imposed by the District Court should be dismissed."
The full decision can be found by visiting the below weblink:
What does the Burton decision mean for NSW sentencing laws?
Although it is unclear from the written judgment, a consideration that surfaced during both the District Court sentencing hearing and the CCA hearing was the two extreme sentences available for the Respondent. Depending on where the case sat in respect of the section 5 threshold, the scales of justice tipped at either a Community Corrections Order or full-time imprisonment. There were no other options in between, since the Sentencing Reforms removed the availability of an ICO for prescribed sexual offences.
Indeed, DPP v Burton was an unusual and exceptional case, and some may consider the sentence too lenient whereas others would consider imprisonment too harsh. Those who take into account the circumstances of the offence, the offence itself and the personal matters of the Respondent would find that a CCO was just and appropriate in the absence of an ICO.
Should any professionals or prospective clients wish to discuss the decision in more detail, please do not hesitate to contact our office.
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