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Court of Criminal Appeal 11 February 2002

R v JFR

[2002] NSWCCA 9

Sexual offences
CRIMINAL LAW SEXUAL OFFENCE APPEAL AGAINST SENTENCE AGE AND HEALTH OF APPELLANT STATUTORY TRIGGER FOR RESENTENCING

Citation: JFR v R [2002] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 11 February 2002
Judge(s): Hidden J; Newman AJ

Background

The appellant pleaded guilty in the Local Court to six counts of indecent assault against his two natural daughters. The offences occurred between December 1960 and March 1964, when the victims were very young children. The charges were brought under section 76 of the Crimes Act 1900 as it stood at the time of the offending, which carried a maximum penalty of five years imprisonment.

The matter was sentenced in the District Court at Lismore on 23 April 2001, roughly four decades after the offences were committed. Ducker DCJ imposed a series of partially cumulative custodial sentences, with a total aggregate term of two years and seven months and a non-parole period of one year and seven months.

The appellant sought leave to appeal, contending that the sentences were unduly harsh given the significant delay between the offending and conviction, as well as his age and health.

  • Whether the aggregate sentence was manifestly excessive in all the circumstances, including the appellant's age, health, and the long delay between offending and conviction
  • Whether the sentencing judge erred in imposing a full-time custodial sentence rather than a non-custodial alternative
  • Whether the sentencing judge erred in directing that the sentences be served cumulatively
  • Whether the sentencing judge erred in finding that the absence of further offending over 35 years was partly attributable to lack of opportunity and diminished sex drive
  • Whether the court should sentence by reference to sentencing standards at the time of the offences rather than contemporary standards

Decision

Newman AJ (Hidden J agreeing) found that the offences were objectively serious. The appellant had committed a systematic course of deliberate criminal conduct against his daughters over a period exceeding three years, in clear breach of his parental duty to protect them. The sentencing judge had also correctly noted that, had the offences come to light soon after commission, a lengthy custodial sentence would have been inevitable even with a guilty plea.

On the question of whether sentencing should reflect standards at the time of the offences, the Court noted that a five-member bench had reserved judgment on that precise question in a related matter. That question was left for another day. In this case, the sentencing judge had in fact applied sentencing attitudes from the period closer to the commission of the offences, and did so to the appellant's advantage. No appellable error arose on that ground.

Regarding the finding that the absence of further offending was partly attributable to lack of opportunity and diminished sex drive, the Court accepted that this finding may have been open to challenge. However, even if that finding were erroneous, it did not provide a sufficient basis to intervene.

The critical statutory threshold under section 6(3) of the Criminal Appeal Act 1912, as explained by Spigelman CJ in Regina v Simpson, requires the Court of Criminal Appeal to form a positive opinion that some other sentence is warranted in law and should have been passed. The Court was unable to form that opinion. Given the nature and duration of the offending, the total sentence did not call for appellate interference.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that a different sentence is warranted in law before it can intervene. The mere identification of a potential error in the sentencing process is not sufficient on its own.
  • Where a sentencing judge has already applied sentencing standards closer to the time of the offending, and done so to the offender's advantage, no appealable error arises from the choice of sentencing benchmark even if the broader question of which standards apply remains unresolved.
  • A finding that was arguably open to challenge did not require intervention when the aggregate sentence remained proportionate to the seriousness of the conduct.
  • Systematic sexual offending by a parent against young children, even when prosecuted after a substantial delay, can properly attract a cumulative custodial sentence.
  • The Court confirmed that the absence of prior convictions does not, of itself, reduce a sentence to a non-custodial disposition where the objective gravity of the offending warrants imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 76 (now repealed)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Regina v Simpson [2001] NSWCCA 534
- R v MJR (reserved judgment of a five-member bench, noted but not yet decided at the time of this judgment)