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Court of Criminal Appeal 30 June 2009

SAT v R

[2009] NSWCCA 172

Sexual offences
CRIMINAL LAW SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE RELEVANCE OF STANDARD NON

Citation: SAT v R [2009] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 30 June 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The applicant pleaded guilty in the District Court to a series of grave offences involving children in her care. The offences spanned two separate episodes. The first, in September 2005, involved an attempt to use her 13-year-old niece for pornographic purposes. The second, in June 2006, involved aiding and abetting sexual intercourse with her own daughters (aged six and nine), using those children for pornographic purposes, and producing and disseminating child pornography.

The offending in 2006 arose from an online relationship the applicant had developed with a man in the United States. Over time, that correspondence escalated until the applicant facilitated the direct sexual abuse of her children, who were present with the overseas man via webcam. The applicant also produced and distributed images of the abuse.

The District Court sentenced the applicant to a total effective sentence with a non-parole period of nine years and a total term of 13 years and nine months. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive, particularly having regard to her pleas of guilty and her substantial assistance to authorities.

  • Whether the sentences imposed by the District Court were manifestly excessive in all the circumstances
  • The proper approach to the standard non-parole period when sentencing for aiding and abetting offences, given that no standard non-parole period is prescribed for those offences under NSW legislation
  • The appropriate weight to be given to pleas of guilty and substantial assistance to authorities
  • How the sentences for the various counts should be structured and accumulated

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentences were manifestly excessive. The primary ground for that conclusion was the inadequate discount given for the applicant's early pleas of guilty and, in particular, her substantial assistance to authorities, including cooperation that assisted in the prosecution of the overseas offender.

The Court addressed an important sentencing question about aiding and abetting offences. Because no standard non-parole period is prescribed for aiding and abetting charges under the Crimes (Sentencing Procedure) Act 1999, the sentencing judge was required to exercise a general discretion rather than apply or adjust from a fixed legislative benchmark. The Court found that the District Court had, in substance, treated the standard non-parole period applicable to the principal offences as a reference point for the aiding and abetting charges without adequately acknowledging this distinction.

On the question of assistance to authorities, the Court emphasised that the applicant's cooperation was genuinely substantial and had direct utility to law enforcement. This factor, combined with the early pleas, warranted a more significant reduction than the District Court had applied.

The Court restructured the sentences so that those for counts 2 to 8 ran concurrently with each other but remained partially cumulative upon the sentence for count 1. This approach reflected that, although the sexual assault and child pornography offences involved distinct criminal acts, they were interrelated and all served the same purpose: enabling the exploitation of the applicant's children for the sexual gratification of the overseas man.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed and the following substituted:
  • Count 1: fixed term of 2 years, commencing 11 December 2006, expiring 10 December 2008
  • Counts 5 and 6: fixed terms of 3 years each, commencing 11 December 2007, expiring 10 December 2010
  • Counts 7 and 8: fixed terms of 2 years 6 months each, commencing 11 December 2007, expiring 10 June 2010
  • Counts 3 and 4: non-parole period of 6 years (expiring 10 December 2013), total term of 9 years (expiring 10 December 2016), each commencing 11 December 2007
  • Count 2 (including Form 1 matters): non-parole period of 6 years (expiring 10 December 2013), total term of 9 years 6 months (expiring 10 June 2017), commencing 11 December 2007
  • Total effective sentence: non-parole period of 7 years; total term of 10 years 6 months
  • Eligible for release to parole on 10 December 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that no standard non-parole period is prescribed for offences of aiding and abetting under the Crimes (Sentencing Procedure) Act 1999, meaning the sentencing court exercises a general discretion rather than working from a legislative benchmark.
  • Where a sentencing court applies, even implicitly, a standard non-parole period as a reference point for an aiding and abetting charge, that approach may constitute error warranting appellate intervention.
  • Substantial assistance to authorities can warrant a significant sentencing reduction, particularly where the cooperation has direct practical utility to law enforcement and prosecutors.
  • In structuring sentences across multiple counts arising from related but distinct episodes, the Court adopted partial accumulation to reflect the separate occasions while acknowledging the overarching common purpose of the offending.
  • A total effective sentence of 10 years 6 months with a 7-year non-parole period was substituted for the original 13 years 9 months with a 9-year non-parole period, the reduction being driven principally by the inadequate weight initially given to pleas and assistance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- DAC v R [2006] NSWCCA 265
- Diesing & Ors v R [2007] NSWCCA 326
- DJB v R, R v DJB [2007] NSWCCA 209
- GAS & SJK v The Queen (2004) 217 CLR 198
- Hosseini v R [2009] NSWCCA 52
- Kite v R [2009] NSWCCA
- King v The Queen (1986) 161 CLR 423
- MLP v R (2006) 164 A Crim R 93
- Mohan v The Queen [1967] AC 187
- Osland v The Queen (1998) 197 CLR 316
- R v AJP (2004) 150 A Crim R 575
- R v BJW (2000) 112 A Crim R 1
- R v Gent (2005) 162 A Crim R 29
- R v Merrin [2007] NSWCCA 255
- R v Woods [2009] NSWCCA 55