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Court of Criminal Appeal 7 May 2002

R v Myers

[2002] NSWCCA 162

Sexual offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE SEXUAL OFFENCES WHETHER SENTENCE EXCESSIVE

Citation: R v Myers [2002] NSWCCA 162
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2002
Judge(s): Kirby J; Smart AJ

Background

The appellant pleaded guilty in the District Court to 11 sexual offences involving five under-age male victims, four of whom were brothers. The offences occurred between 1995 and December 1999. The appellant had formed a relationship with the victims' mother and moved into the family home, placing him in a position effectively equivalent to that of a stepfather.

The offences ranged from indecent assault to aggravated sexual intercourse with a child, with victims aged between 11 and 18 years at the time of each incident. The most serious count involved sexual intercourse with the youngest brother, then aged 11, committed while the appellant was in a position of authority within the household.

Garling DCJ sentenced the appellant to a total of 8 years imprisonment with a non-parole period of 5 years, structured as a combination of concurrent and cumulative fixed terms. The appellant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the total sentence of 8 years imprisonment was manifestly excessive having regard to the circumstances of the offending and the guilty plea
  • Whether the sentencing judge correctly applied the structured approach to concurrent and cumulative sentences required by R v Pearce
  • Whether the individual penalty imposed on the most serious count (count 8) was too high, particularly given the 25% discount for a guilty plea
  • Whether Judicial Commission sentencing statistics indicated that the sentences fell outside the appropriate range of discretion

Decision

The Court granted leave to appeal but dismissed the appeal. Kirby J found that the sentencing judge had correctly followed the approach required by R v Pearce, which requires a court to: first, identify the appropriate sentence for each offence; second, consider which terms should be concurrent and which cumulative; and third, apply the totality principle to ensure the aggregate sentence reflects the overall criminality involved.

On the most serious count, Kirby J rejected the submission that the 5-year fixed term was too high. The offence involved aggravated sexual intercourse with an 11-year-old child, committed by a person occupying a position of authority as a de facto stepfather. Even treating the effective sentence as equivalent to 6.25 years before the guilty plea discount, Kirby J did not regard this as excessive.

The Court acknowledged that judicial statistics have a role in sentencing review but cautioned that they are "a blunt instrument" and must be applied with care. In this case, the statistics did not establish that the sentences fell outside the sentencing discretion available to the trial judge.

Taken as a whole, a total effective sentence of 8 years with a 5-year non-parole period was, in the Court's view, well within the available discretion, given the sustained abuse of five victims over several years.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the R v Pearce framework requires sentencing judges to address three sequential questions: the appropriate sentence for each offence, the concurrent or cumulative structure, and totality across all counts.
  • A position of domestic authority, such as that of a de facto stepfather, constitutes an aggravating circumstance capable of increasing the applicable maximum penalty and informing the weight of an individual sentence.
  • Judicial Commission sentencing statistics were characterised as "a blunt instrument," and their use alone does not establish that a sentence falls outside the sentencing judge's discretion.
  • Where individual sentences on specific counts might arguably be at the higher end, the totality principle provides an independent basis to uphold the overall sentence if the aggregate properly reflects the full criminality involved.
  • In dismissing the appeal, the Court emphasised the sustained nature of the offending across five victims and multiple years as a significant factor supporting the total sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61C(1), 61L, 61M(1), 66C(1), 78Q(1)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases
- R v Pearce (1998) HCA 57
- Pearce v The Queen (1994) 194 CLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Hammoud (2000) 118 A Crim R 66
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v Kalache (2000) 111 A Crim R 152