Scrimshaw (a pseudonym) v The Queen - [2021] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Scrimshaw (a pseudonym) v R [2021] NSWCCA 81
Hearing dates: 15 March 2021
Decision date: 30 April 2021
Before: Payne JA at [1];
Bellew J at [2];
Button J at [3]
Decision:
(1)   Leave to appeal out of time granted.
(2)   Leave to appeal granted.
(3)   Appeal dismissed.

Catchwords:
SENTENCING — appeal against sentence — erroneous application of standard non-parole period not in existence at time of offending — error conceded by Crown — other grounds not considered — consideration of resentence — penetrative sexual offending against natural daughter — offender previously incarcerated for penetrative sexual offences against at least one child — cognitive limitations but awareness of wrongfulness of actions — first instance total head sentence of imprisonment for 11 years with total non-parole period of 7 years — no lesser sentence warranted in law

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 61N, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Category: Principal judgment
Parties: Adrian Scrimshaw (Applicant)
The Queen (Respondent)
Representation:
Counsel:

S Healy (Applicant)
C Young (Respondent)

Solicitors:
Douglass & Ford Criminal Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/119672
Publication restriction: Pseudonyms adopted to avoid identifying child sexual assault complainant
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 February 2017

Before:

McLoughlin SC DCJ

File Number(s):

2015/00119672

Judgment

PAYNE JA: I agree with Button J.
BELLEW J: I agree with Button J.
BUTTON J:

Error conceded and established

Adrian Scrimshaw (a pseudonym for the applicant) was sentenced on 15 February 2017 in the District Court at Port Macquarie for a number of serious sexual offences against his natural daughter that had been committed many years beforehand. An orthodox sentence structure of “cascading” head sentences with staggered commencement dates was adopted, as opposed to an aggregate sentence. That structure led to a total head sentence of imprisonment for 11 years, with a total non-parole period of 7 years. Clearly, special circumstances were found that led to a significant reduction in the statutory ratio to a little over 63%.

Regrettably, although the applicable maximum penalty for all offences was correctly identified as having been imprisonment for 16 years, the learned sentencing judge wrongly proceeded on the basis that, at the time of the commission of the offences, Parliament had provided a standard non-parole period. In fact, at the time, there was none. That failing – which lawyers appearing for both parties in proceedings on sentence should take care to ensure does not occur in a very busy list – underpinned the second of three grounds of appeal, the others of which asserted a failure by the sentencing judge to refer to the pleas of guilty of the applicant in the remarks on sentence, and an error of fact with regard to the criminal record of the applicant.
At the hearing of an application for leave to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scrimshaw (a pseudonym) v The Queen

Details

AGLC: Scrimshaw (a pseudonym) v The Queen [2021] NSWCCA 81
Case: [2021] NSWCCA 81
Decision Date: 30 April 2021

CaseChat Overview and Summary

The case of Scrimshaw, pseudonymously referred to as the appellant, involved a challenge against his sentence by the respondent, The Queen. The appellant was convicted for penetrative sexual offences against his natural daughter. His previous criminal history included incarceration for similar offences against another child. The appellant, who has cognitive limitations, was aware of the wrongfulness of his actions at the time of the offending. The primary dispute in this appeal was the sentence handed down by the lower court, which imposed a total head sentence of imprisonment for 11 years, with a non-parole period of 7 years. The appellant argued that the sentencing was flawed due to an erroneous application of a standard non-parole period which did not exist at the time of the offending.

The key legal issues that the court had to address were whether the sentence imposed by the lower court was appropriate and whether the alleged error in applying the non-parole period warranted a resentence. The Crown conceded that there was an error in the application of the non-parole period, and no other grounds for appeal were considered. The court had to weigh the nature and circumstances of the offence, the appellant's criminal history, his cognitive limitations, and his awareness of the wrongfulness of his actions to determine if the sentence was just and whether a resentence was warranted.

In considering the appropriate sentence, the court noted that the appellant had a history of penetrative sexual offences against children and was aware of the wrongfulness of his actions. Despite his cognitive limitations, the court found that the original sentence was not excessive and that no lesser sentence would have been warranted in law. The court acknowledged the error in the application of the non-parole period but determined that it did not significantly affect the overall sentence. The court held that the original sentence was appropriate and dismissed the appeal.

The court's final orders were to dismiss the appeal and confirm the original sentence of imprisonment for 11 years with a non-parole period of 7 years. The court did not impose a new sentence, finding the original sentence to be just and appropriate given the circumstances of the case.

Orders