Sentencing not to deter claims of innocence

In R v Kumar [2011] NSWCCA 139 the New South Wales Court of Criminal Appeal allowed Rajendra Kumar’s appeal application. The applicant was found guilty of accessing and possessing child pornography, receiving 5 years jail with a 3 year non-parole period for accessing child pornography, and 3 years jail with a 2 year non-parole period for possessing child pornography.

The trial judge considered it necessary to impose a sentence that would deter others from similar conduct and from making false claims that they did not engage in it when they did (but not as punishment for pleading not guilty).

In NSW, the purposes of sentencing are set out in Crimes (Sentencing Procedure Act) 1999 s 3A, which is pretty similar to Victoria’s Sentencing Act 1991 s 5(1). Unsurprisingly, both Acts don’t say anything about deterring accused people from pleading not guilty when they will be — perhaps even unbeknownst to them or anyone else — found guilty of criminal offences in the future. That would probably undermine the practical effect of the presumption of innocence, both at common law and Charter of Human Rights and Responsibilities Act 2006 s 25(1).

[21] His Honour concluded with the following passage, which I set out again for convenience of reference:

“The sentences which I impose as will be seen give greater weight to general deterrence, the need to deter others from engaging in this conduct and particularly the need to deter others from making false claims that they did not engage in it when they did, and of course the principles of retribution fixing an appropriate sentence for the seriousness of the offences”. [Emphasis added.]

[22] In this Court, the Crown prosecutor conceded that, if the sentencing judge expressed the view “that the conduct of the defence at trial was an aggravating feature which increased the sentence, then he would have fallen into serious error”. In my view, although the sentencing judge referred to the conduct of the defence, the false claims which he was concerned to deter were of the type made by the applicant after he was convicted. His Honour had agreed during submissions that the defence conducted at the trial was not aggravating but rather deprived him of various mitigating circumstances and commented that the applicant had “defended the case as he [was] entitled to”. The reference to the course of the defence simply gave a context for the evidence which his Honour discussed. However, in my respectful view, the sentencing judge plainly regarded the “claims” made to the psychologist and the probation officer as being in a quite different category which, it appears his Honour thought, were required to be refuted by reference to the evidence at trial.

[23] It seems to me that, in determining Ground 1, it makes no difference in point of principle whether it could be said that the applicant was punished additionally because of the defence he ran at trial or his subsequent claims of innocence in which he blamed his daughter. The fact is that, in this case, sentencing error as explained in paragraph [22] has been made out. Whilst the continuation of the applicant’s claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter others from making “false claims” of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence: that function of sentencing is directed to deterring the commission by others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future.

The Court of Appeal noted in any event that at trial the applicant hadn’t tried to blame his daughter for the pornography on his computer. That claim came out ‘only’ from the psychological reports. Though his views about his subsequently-proved offending were relevant to remorse, contrition and rehabilitation, a lack of remorse shown by a refusal to admit guilt did not, on its own, show the applicant was more likely to reoffend in the future.

After considering the factors in this case, the Court allowed the appeal and reduced Kumar’s sentence to 3 years with a 2 year non-parole period for the accessing offence, and 2 years with 1 year 6 months non-parole period for the possession offence.

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