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Court of Criminal Appeal 19 February 2008

Ivimy v R

[2008] NSWCCA 25

Sexual offences
CRIMINAL LAW SENTENCING AGGRAVATED INDECENT ASSAULT NO DOUBLE COUNTING SENTENCES NOT MANIFESTLY EXCESSIVE.

Citation: Ivimy v R [2008] NSWCCA 25
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2008
Judge(s): McClellan CJ at CL, Hall J, Price J (Price J delivered the leading judgment; the other two judges agreed)

Background

The appellant had pleaded guilty in the District Court at Parramatta to 13 counts of sexual offending against a single victim. The offences spanned a decade, from 1992 to 2002, beginning when the victim was seven years old. The appellant had entered the victim's life after befriending her dying father and subsequently entering a de facto relationship with the victim's mother.

The offending involved repeated indecent assaults, many committed at the premises of a co-offender who was present during some incidents. The offences fell under sections 61M(2), 61M(1), and 61L of the Crimes Act 1900, covering aggravated indecent assault and indecent assault. The District Court imposed a total aggregate sentence of 11 years, with an effective non-parole period of 8 years and 3 months.

The appellant sought leave to appeal, arguing that the sentencing judge had erred in several respects, including impermissible double counting of aggravating factors and imposing sentences that were manifestly excessive.

  • Whether the sentencing judge engaged in impermissible double counting by treating circumstances of aggravation as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, where those circumstances already formed part of the statutory offence
  • Whether individual sentences for specific counts (including counts 6 and 12) were manifestly excessive given the victim's increasing age over time
  • Whether the sentencing judge gave excessive weight to retribution, personal deterrence, and community protection by reference to the appellant's prior criminal history
  • Whether the overall aggregate sentence was manifestly excessive in all the circumstances

Decision

Price J, with whom the other judges agreed, dismissed all grounds of appeal. On the double counting argument, the Court found that the sentencing judge had not used the circumstances of aggravation (which elevated the offences to their more serious statutory form) as additional aggravating factors under s 21A(2). The judge's remarks, read in context, demonstrated an awareness of the prohibition on double counting and reflected a proper approach to the sentencing task.

On the question of individual sentences for counts 6 and 12, the appellant argued that the victim's increasing age should have reduced the weight given to her young age as an aggravating factor. The Court accepted that age as an aggravating feature diminished as the victim grew older, but held that this was properly counterbalanced by the moral culpability attached to the sustained and systematic nature of the offending over many years. The judge had explicitly addressed this tension in his remarks on sentence.

Regarding the appellant's prior criminal history, the Court confirmed that it was not used to inflate the objective seriousness of the offences. Rather, and consistently with established principle, it was used to afford greater weight to retribution, personal deterrence, and the protection of the community. No error was established in that approach.

The Court found no error in the sentencing judge's overall approach and was not persuaded that any individual sentence or the aggregate sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge does not engage in impermissible double counting merely by referring to the circumstances of aggravation constituting an offence, provided those circumstances are not separately applied as additional aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Where offending against a child spans many years, the diminishing weight of age as an aggravating factor (as the victim grows older) may legitimately be counterbalanced by the heightened moral culpability of a sustained, systematic course of conduct.
  • A sentencing court may give greater weight to retribution, personal deterrence, and community protection by reference to a prior criminal history, provided that history is not used to increase the assessed objective seriousness of the offences before the court, as doing so would infringe the principle of proportionality.
  • No error was established in the sentencing judge's methodology, and an aggregate sentence of 11 years with a non-parole period of 8 years and 3 months for 13 counts of sexual offending against a child over a decade was held not to be manifestly excessive.
  • In dismissing the appeal, the Court applied principles from R v McNaughton (2006) 66 NSWLR 566 regarding the permissible use of prior offending at sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61M(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(2)(k)

Cases:
- Dougan v R (2006) 160 A Crim R 135
- Ibbs v The Queen (1987) 163 CLR 447
- R v King (2004) 150 A Crim R 409
- R v McNamara [2005] NSWCCA 195
- R v McNaughton (2006) 66 NSWLR 566
- R v Way (2004) 60 NSWLR 168
- R v Westerman [2004] NSWCCA 161
- R v Wickham [2004] NSWCCA 193
- Regina v AD [2005] NSWCCA 208
- Regina v Pearson [2005] NSWCCA 116
- R v Skaf [2005] NSWCCA 297
- Veen v The Queen (No 2) (1988) 165 CLR 464