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Court of Criminal Appeal 10 July 2009

KAF v R

[2009] NSWCCA 184

Sexual offencesDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE NON PAROLE PERIOD REQUIRED TO BE SET CRIMINAL LAW APPEAL AGAINST SENTENCE DETERMINATION OF OBJECTIVE SERIOUSNESS

Citation: KAF v R [2009] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 10 July 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Johnson J

Background

The applicant pleaded guilty in the District Court to two counts of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900, with the circumstances of aggravation being that the victim was under 16 years of age. The victim was the applicant's natural daughter, aged 11 at the time of the offending. Two further offences of aggravated acts of indecency were dealt with on a Form 1 (taken into account in sentencing without separate conviction).

The sentencing judge imposed a fixed term of five years imprisonment for the first count and, for the second count, a non-parole period of five years with a three-year balance of term. The applicant sought leave to appeal against his sentences on one ground, and the Crown conceded a technical error in relation to the first count.

  • Whether the imposition of a fixed term of imprisonment for the first count was lawful, given that a standard non-parole period applied to that offence under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in her consideration of the standard non-parole period by failing to identify and contrast the putative mid-range offence before characterising the present offences as falling within the mid-range of objective seriousness

Decision

On the first issue, the Crown conceded that a fixed term could not lawfully be imposed where a standard non-parole period exists under the Crimes (Sentencing Procedure) Act 1999. Section 45(1) of that Act required the sentencing court to set a non-parole period. The Court of Criminal Appeal accepted the concession, describing the error as technical and one that did not operate to the applicant's disadvantage, but held that it nonetheless required correction.

On the second issue, the applicant argued that the sentencing judge had failed to engage in the required analysis of what a mid-range offence would look like before placing the present offences in that category. McClellan CJ at CL rejected this submission. The Court found that the sentencing judge's reasons, while not elaborate, were adequate given the nature of the statutory offences and the circumstances of the particular case. The statutory offences by definition contain elements such as the victim's age, and the presence of those elements may, depending on all other circumstances, place an offence within the mid-range or higher.

The applicant separately contended that the second offence, involving digital rather than penile penetration, must fall below the mid-range for that reason alone. The Court rejected this argument, reaffirming that the nature of penetration is merely one factor and does not by itself determine the seriousness of an offence. The Court was satisfied that no error had been established in the substantive sentencing exercise, and that the reductions applied for the guilty plea, voluntary disclosure, and psychiatric condition were appropriately considered.

The Court noted that although a minor misdescription of the Form 1 offences appeared in the sentencing remarks, a reading of the whole judgment indicated this was a slip and did not reflect any misunderstanding by the sentencing judge.

Orders Made

  • Leave to appeal granted and the appeal upheld in part
  • The sentence on count 1 was quashed and replaced with a non-parole period of 5 years commencing 19 August 2007 and expiring 18 August 2012, with a balance of term of 3 years expiring 18 August 2015
  • The appeal was otherwise dismissed

Key Takeaways

  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a court must set a non-parole period where a standard non-parole period applies to the offence; a fixed term cannot lawfully be imposed in such circumstances, even where the error causes no practical disadvantage to the offender.
  • The Court of Criminal Appeal confirmed that a sentencing judge is not required to engage in an elaborate or detailed comparison with a putative mid-range offence before characterising the present offence as falling within that range, provided the reasons are adequate in context.
  • In dismissing the mid-range ground of appeal, the Court reaffirmed that the type of penetration involved in an aggravated sexual intercourse offence is one factor only, and digital penetration does not automatically place an offence below the mid-range of objective seriousness.
  • A minor misdescription of a Form 1 offence in sentencing remarks will not constitute a material error where a reading of the reasons as a whole demonstrates the sentencing judge understood the true nature of the offences.
  • No error was established in the sentencing judge's assessment of mitigating factors, including the guilty plea, the applicant's voluntary disclosure of the first offence to authorities, and his psychiatric condition.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61O
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)

Cases:
- KC v R [2009] NSWCCA 110
- R v Duffy [1999] NSWCCA 321
- R v Hibberd [2009] NSWCCA 20
- R v Huynh [2005] NSWCCA 220
- R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18
- R v King [2009] NSWCCA 117
- R v Way (2004) 60 NSWLR 168
- SGJ v R; KU v R [2008] NSWCCA 258
- Vu v R [2006] NSWCCA 188