AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
17
Court of Criminal Appeal 10 June 2008

RJA v R

[2008] NSWCCA 137

Also reported as (2008) 185 A Crim R 178
Sexual offences
CRIMINAL LAW SENTENCE STATUTORY AGGRAVATING FACTORS DOUBLE COUNTING OF AGE OF VICTIM CRIMINAL LAW SENTENCE

Citation: RJA v R [2008] NSWCCA 137
Court: Court of Criminal Appeal, New South Wales
Date: 10 June 2008
Judge(s): Spigelman CJ, Price J, McCallum J

Background

The appellant was convicted after trial in the District Court on three counts of sexual intercourse with a child under ten years of age, contrary to s 66A of the Crimes Act 1900. The victim was his own daughter, who was eight years old at the time of the first offence and nine years old at the time of the second and third. The offences occurred between February and September 2004.

At the sentencing hearing, the District Court judge found that two of the three counts (both involving penile penetration) fell within the middle range of objective seriousness, attracting the standard non-parole period of 15 years under the Crimes (Sentencing Procedure) Act 1999. The judge identified the victim's vulnerability due to her young age as a statutory aggravating factor, and imposed non-parole periods of 13 years each for those two counts and 7 years for the third (digital penetration). The sentences were partly cumulative, producing an overall non-parole period of 16 years.

The appellant sought leave to appeal against those sentences, raising several grounds, including improper double-counting of the victim's age, incorrect assessment of objective seriousness for one count, error in failing to give weight to a low risk of re-offending, and inconsistency in imposing equal non-parole periods for offences the judge had ranked differently in seriousness.

  • Whether the sentencing judge erred by treating the victim's young age as an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, when age below ten is an element of the offence under s 66A of the Crimes Act 1900
  • Whether the judge correctly assessed Count 3 (digital penetration) as below the middle range of objective seriousness, taking into account the degree of penetration
  • Whether the judge erred by failing to treat the low risk of re-offending as a mitigating factor under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999
  • Whether it was an error to impose the same non-parole period for Count 1 (found to be the more serious offence) and Count 4, while also imposing a longer balance of term for Count 4

Decision

Aggravating factor: victim's age. The Court held that a sentencing court must avoid double-counting when an element of the offence, such as victim age, also appears as a statutory aggravating factor. Section 21A(2) expressly prohibits additional weight being given to a factor that is already an element of the offence. However, the Court confirmed that the provision can still operate within a category offence: even where the victim must be under ten for the offence to be established, the specific age of the victim within that range remains relevant. The Court found that this ground was not ultimately made out in a way that independently required re-sentencing.

Objective seriousness of Count 3. The Court examined whether the degree of penetration involved in digital penetration properly placed Count 3 below the middle range. The Court found no error in the judge's assessment that it was below that range, though the reasoning as to how the standard non-parole period benchmark was applied formed part of the broader re-sentencing exercise.

Risk of re-offending. The Court found that, while the judge did not err in declining to make a positive finding of low re-offending risk in general terms, the Court on re-sentencing gave significant weight to the fact that the appellant could never again be in a position to offend against his daughter. The father-daughter relationship was central to the gravity of the offending, and its irreversible absence warranted recognition as a mitigating consideration under s 21A(3)(g).

Inconsistency between counts. The Court held that it was an error to impose the same non-parole period for Counts 1 and 4 while also imposing a longer balance of term for Count 4, given the judge's own finding that Count 1 was the more serious of the two. This internal inconsistency required the sentences to be quashed and re-imposed. The Court reduced the non-parole period for Count 1 to 12 years, for Count 4 to 10 years, and for Count 3 to 6 years, maintaining proportionate relationships between the counts.

Orders Made

  • The original sentences were quashed.
  • Count 1: non-parole period of 12 years commencing 18 August 2006, expiring 17 August 2018; balance of term of 4 years expiring 17 August 2022.
  • Count 3: non-parole period of 6 years commencing 18 August 2012, expiring 17 August 2018; balance of term of 2 years expiring 17 August 2020.
  • Count 4: non-parole period of 10 years commencing 18 August 2009, expiring 17 August 2019; balance of term of 4 years expiring 17 August 2023.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not treat a factor as an aggravating circumstance if that factor is already an element of the offence, to avoid double-counting. Age of the victim falls squarely within this prohibition where age is definitional to the charge.
  • Even where victim age is an element of a category offence (such as s 66A, which applies only where the victim is under ten), the specific age of the victim within that category remains a legitimate sentencing consideration. The younger the child within the permissible range, the more serious the offending may be.
  • A sentencing court's failure to maintain internal proportionality between counts it has itself ranked by seriousness constitutes an error warranting intervention on appeal. Imposing equal non-parole periods for two counts where one was found more serious, while also imposing a longer balance of term for the less serious count, was held to be inconsistent.
  • The Court of Criminal Appeal confirmed that s 21A(3)(g) (offender unlikely to re-offend) can properly inform a reduction below the standard non-parole period, and that the particular circumstances giving rise to the offending, including a family relationship that can never recur, are relevant to that assessment.
  • In re-sentencing, the Court reduced all three non-parole periods, reflecting the mitigating weight of the low risk of re-offending and the need for proportionate differentiation between counts of varying objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B, Division 1A of Part 4

Cases:
- Daniels v R [2007] NSWCCA 372
- Hughes v R [2008] NSWCCA 48
- JAH v R [2006] NSWCCA 250
- MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Pearce [1998] HCA 57; (1998) 194 CLR 610
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Shannon v R [2006] NSWCCA 39