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Court of Criminal Appeal 22 June 2006

KJH v. REGINA

[2006] NSWCCA 189

Sexual offences
APPEAL AGAINST SENTENCE WHETHER MIS A MIS

Citation: KJH v Regina [2006] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 22 June 2006
Judge(s): McClellan CJ at CL, James J, Hall J

Background

The appellant was convicted by jury of seven counts of sexual misconduct against his natural daughter, committed between April 2002 and April 2003 when the complainant was between seven and eight years old. The offences included two counts of sexual intercourse with a child under ten (contrary to s 66A of the Crimes Act 1900), two counts of inciting an act of indecency with a child under ten, two counts of aggravated indecent assault, and one count of committing an act of indecency. The appellant had pleaded not guilty at trial.

The District Court sentenced the appellant to an overall term of 12 years imprisonment with a non-parole period of eight years. The most substantial component was the sentence on Count 4, a s 66A offence, which attracted a head sentence of 10 years with a non-parole period of six years. Count 2, also a s 66A offence, received a fixed term of three years.

On appeal, the appellant challenged both the maximum penalty the sentencing judge applied to the s 66A counts and the overall severity of the sentence, arguing it was manifestly excessive.

  • Whether the trial judge erred in determining the applicable maximum penalty under s 66A of the Crimes Act 1900
  • Whether a mis-statement in the remarks on sentence, later explicitly corrected, demonstrated that the judge had in fact applied the wrong maximum penalty
  • Whether the sentence imposed on Count 4 was manifestly excessive, particularly given its disproportion relative to the sentence on the comparable Count 2

Decision

On the maximum penalty question, the Court accepted that the trial judge had made a mis-statement in the remarks on sentence but noted that the judge subsequently and explicitly corrected that statement. The Court held that a mis-statement, while regrettable, provides no sufficient reason to doubt what the judge expressly stated as to the maximum penalty he actually had in mind when determining sentence. No error in the application of the maximum penalty was established on this ground.

The Court also addressed the broader sentencing context under s 66A, observing that not all offences under that provision involve an abuse of trust. This observation was relevant to the weight to be given to that aggravating feature when comparing the individual counts.

On manifest excess, the Court found that the sentence imposed on Count 4 was disproportionate when measured against the sentence on Count 2. Both counts involved sexual intercourse with the complainant under s 66A, and while Count 4 was objectively more serious, the degree of difference did not justify a sentence of approximately three times that imposed for Count 2. Hall J, with whom James J and McClellan CJ at CL agreed, reduced the head sentence on Count 4 from 10 years to eight years and the non-parole period from six years to four years. McClellan CJ at CL noted that the disproportion may also reflect a misapplication of the principles in R v Pearce (1998) 194 CLR 610, though as there was no Crown appeal against Count 2, the Court confined its re-sentencing to Count 4.

The Court also made a finding of special circumstances, on the basis that the evidence indicated the appellant had good prospects of rehabilitation, resulting in the non-parole period being set at less than the statutory proportion of the overall term.

Orders Made

  • Appeal allowed
  • The sentence imposed by the District Court on 27 July 2005 quashed
  • The appellant re-sentenced as follows:
  • Count 1: fixed term of nine months, commencing 16 September 2004, expiring 15 June 2005
  • Count 2: fixed term of three years, commencing 16 September 2004, expiring 15 September 2007
  • Count 3: fixed term of 18 months, commencing 16 September 2005, expiring 15 March 2007
  • Count 4: eight years imprisonment commencing 16 September 2006, expiring 15 September 2014, with a non-parole period of four years expiring 15 September 2010
  • Count 5: fixed term of two years, commencing 16 September 2006, expiring 15 September 2008
  • Counts 7 and 8: fixed terms of two years each, commencing 16 September 2007, expiring 15 September 2009
  • The appellant eligible for release on parole on 15 September 2010

Key Takeaways

  • A mis-statement in a judge's remarks on sentence does not, without more, establish that the judge applied the wrong legal standard, particularly where the judge explicitly corrected the error in the same remarks.
  • Under s 66A of the Crimes Act 1900, the Court confirmed that not every offence of sexual intercourse with a child under ten will involve an abuse of trust, and that feature should not be assumed as a universal aggravating factor across all such counts.
  • Where two counts involve the same offence under the same provision, an aggregate sentence imposing approximately three times the term for one count compared to a comparable count may constitute manifest excess, even where the first count is objectively more serious.
  • The Court of Criminal Appeal, in the absence of a Crown appeal, confined re-sentencing to the count identified as manifestly excessive, leaving the other individual sentences undisturbed even where proportionality concerns existed.
  • A finding of special circumstances, justifying a non-parole period below the statutory proportion of the head sentence, may be supported by evidence of good rehabilitation prospects before the sentencing court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(2), 66A, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Pearce (1998) 194 CLR 610
- R v Muldoon (NSW CCA, unreported, 13 December 1990)
- R v Eagles (NSW CCA, unreported, 16 December 1993)
- JCW [2000] NSWCCA 209
- TAB [2002] NSWCCA