Young (a pseudonym) v R [2022] NSWCCA 111

Young (a pseudonym) v R [2022] NSWCCA 111 · Read the judgment on AustLII

Catchwords: Sentencing – delay – changes in the law as mitigation

In this decision, the CCA has held that where a sentence has been delayed, it is permissible to take into account in mitigation not only the fact that the sentencing options have changed since the offences, but also (perhaps curiously) the very fact that the offender has been disadvantaged because the law now requires the offender to be sentenced based on current sentencing principles.

The applicant pleaded guilty to sexual offences which he committed on his 9-11 year old niece when he himself was aged 14-16 years. There was a delay of 16-17 years before charging, and because he was 34 by the time he was to be dealt with, he could no longer be sentenced in the Children’s Court (he would have had to be charged before turning 21 for that to happen: Children (Criminal Proceedings Act) 1987 s 28(1)). The applicant himself was also the subject of sexual abuse at around the time of the offences. The delay in charges being laid accordingly had a range of consequences (more of which are set out below), including that he began a cycle of self-destruction and self-sabotage, and started committing other offences. He was sentenced to 3 years with a non-parole period of 18 months. He asserted on appeal that the sentence was manifestly excessive.

The Court (N Adams J, Bell CJ and Button J agreeing) observed that in this case the fact of the delay had a significant impact on the sentencing options available to the court (at [46]), not the least of which was that if he had been sentenced as a juvenile, he could have received a suspended control order in the Children’s Court.

By the time of sentencing, Crimes (Sentencing Procedure) Act 1999 s 25AA(1) provided that the applicant was to be sentenced ‘in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence’. If he had been dealt with before enactment of that provision, he would have been dealt with on the basis of the law as it applied at the time of the offending, and not current sentencing law (at [47]). For example, the offending occurred before the enactment of Standard Non-Parole Periods, which are one indicator of how sentencing has changed (at [48]).

Secondly, on 24 September 2018 suspended sentences were abolished and replaced with Intensive Correction Orders (‘ICO’s’). ICO’s are not available for sexual offending. If the applicant had been sentenced at any time after turning 21 but before 24 September 2018, it would have been open to the sentencing judge to find that the s 5 threshold had been crossed, but to impose an ICO or suspended sentence (at [49]) [sic: the reference to an ICO in this paragraph of the judgment is an error. ICOs in their original form (i.e. before the 2018 amendments discussed) were enacted on 1 October 2010 as a replacement for periodic detention, but at no time have they been an available sentencing option for child sexual offences].

Delay in complaint is common in child sexual abuse matters. Often, a reason for that delay is threats made by the perpetrator to the victim. But this is not a case where there is any evidence that the applicant made such threats. This, the Court said, is no small matter. It is one thing for an offender such as this applicant to rely upon delay as a mitigating factor, but it is another for an offender whose threats resulted in a delay in complaint to then rely upon the subsequent delay in mitigation (at [50]).

Whilst acknowledging the ‘highly unusual’ circumstances of this case, the Court was satisfied that the sentence was excessive, and the applicant was resentenced to a term of 2 years with a non-parole period of 16 months (expiring on the day of judgment).

Readers may have noticed some logical dissonance in relying on the enactment of s 25AA as a factor in mitigation: as the Court itself acknowledged, the entire point of the enactment of s 25AA and forcing courts to apply current sentencing practices was to avoid lower sentences being imposed (at [48]). Nevertheless, whilst accepting that the facts in this case were exceptional, the reasoning nevertheless leaves open the door for novel arguments about the ways in changes in the law might be able to be taken into account notwithstanding that enactment.