AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
16
Court of Criminal Appeal 2 October 2009

Karel EEDENS v R

[2009] NSWCCA 254

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULT OF CHILD UNDER 10 PLEA OF GUILTY FORM 1 WHETHER MATTERS ON FORM 1 APPROPRIATE

Citation: Karel EEDENS v R [2009] NSWCCA 254
Court: New South Wales Court of Criminal Appeal
Date: 2 October 2009
Judges: Macfarlan JA, Howie J, Hislop J

Background

The applicant, a 71-year-old man, pleaded guilty in the District Court to one charge of sexual intercourse with a child under 10 years (contrary to s 66A of the Crimes Act 1900), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years. The offending occurred at his home one afternoon when three children, aged 8, 9 and 13, had come to play with his young daughter. He committed acts of forced fellatio on each of the three children.

Two further offences of the same nature, involving the other two children, were placed on a Form 1 (a mechanism allowing a court to take additional offences into account when sentencing without recording separate convictions for them). The District Court sentenced the applicant to a non-parole period of 9 years with a balance of term of 3 years.

The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had failed to properly determine the objective seriousness of the principal offence.

  • Whether the sentencing judge erred by failing to determine the level of objective criminality of the principal offence before proceeding to sentence
  • Whether the sentence imposed was manifestly excessive
  • Whether it was appropriate for two serious offences against separate victims to be placed on a Form 1 rather than prosecuted as standalone charges

Decision

The Court of Criminal Appeal found that the first ground of appeal had merit. While the sentencing judge made some observations about the nature of the offending, including a comparison between fellatio and other forms of sexual intercourse, he did not properly fix the objective gravity of the principal offence before arriving at the sentence. That assessment is a prerequisite to proper sentencing, particularly where, as here, a standard non-parole period applies.

Howie J (with whom Macfarlan JA and Hislop J agreed) held that the appropriate total sentence before discount, taking into account the Form 1 matters, was 11 years. Applying the 25 per cent discount for the early guilty plea, this produced a sentence of 8 years and 3 months. That was considerably less than the 12-year total sentence imposed by the District Court, leading to the conclusion that the original sentence was manifestly excessive.

The Court also questioned, without formally determining the point, whether it had been appropriate for the prosecution to place two separate and serious s 66A offences on the Form 1 at all. The three incidents involved distinct victims and each represented significant criminal conduct. The Court observed that the arrangement appeared to have emerged from negotiations in the Local Court, and expressed the view that it was arguably inappropriate given the gravity and separateness of the offending.

On the question of special circumstances (which, if found, would permit a longer parole period relative to the non-parole period), the Court declined to find any. The applicant's age had already been factored into the total sentence, and the fact that this was his first time in custody did not, of itself, establish special circumstances.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • The sentence imposed in the District Court is quashed
  • In lieu, the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 2 months with a balance of term of 2 years and 1 month, dating from 14 May 2007, with eligibility for parole on 13 July 2013

Key Takeaways

  • Sentencing for offences with a standard non-parole period requires the court to expressly assess the objective seriousness of the principal offence before arriving at a sentence; failure to do so constitutes error.
  • Placing multiple serious offences against separate victims on a Form 1 may be inappropriate, even where that course results from Local Court negotiations. The Court of Criminal Appeal flagged concerns without resolving the issue definitively in this case.
  • A 25 per cent discount for an early guilty plea in the Local Court was confirmed as applicable, with an additional unspecified reduction for sparing the child complainants from giving evidence.
  • Advanced age, while relevant to the onerousness of custody and potentially to the risk of recidivism, does not automatically establish special circumstances justifying a departure from the statutory ratio between non-parole period and total term.
  • Where a sentence is reassessed on appeal and comparable sentences in prior Crown appeals are used as reference points, the Court acknowledged those comparators were themselves set at the lower end of the available range to account for the double jeopardy principle applicable in Crown appeals.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases:
- R v Todd [1982] 2 NSWLR 517
- R v Borkowski [2009] NSWCCA 102
- Shannon v R [2006] NSWCCA 39
- Attorney General's Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- R v Grube [2005] NSWCCA 140
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v King [2009] NSWCCA 117
- R v Knight [2007] NSWCCA 283; 176 A Crim R 338
- R v Woods [2009] NSWCCA 55
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- RJA v R [2008] NSWCCA 137
- R v Davis [1999] NSWCCA 15
- R v PGM [2008] NSWCCA 172