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Court of Criminal Appeal 3 May 2010

R v Jarrold

[2010] NSWCCA 69

Sexual offences
CRIMINAL LAW SENTENCE CROWN APPEAL WHETHER ERROR IN FINDING FACTS

Citation: R v Jarrold [2010] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 3 May 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The respondent pleaded guilty in the District Court to eight counts spanning two distinct periods of offending. Counts 1 and 2 related to indecent assaults committed against two teenage brothers in the late 1970s, when the respondent was approximately 26 years old and the victims were aged 13 and 14. Although those offences occurred between 1978 and 1979, the respondent was not charged until 2009.

The remaining counts related to more recent conduct: producing child pornography between 2006 and 2008, possessing child pornography in 2008, and in 2009 exposing a child to indecent material with the intention of facilitating unlawful sexual activity. The respondent also asked the sentencing judge to take into account related matters listed on Form 1 documents (a procedural mechanism allowing additional offences to be considered at sentence without separate conviction).

Hosking DCJ sentenced the respondent in October 2009 to an overall term with a non-parole period of 3 years and a balance of term of 2 years. The Crown appealed, arguing the sentences were both individually and in totality manifestly inadequate and that the sentencing judge had made a series of identifiable legal errors.

  • Whether the individual sentences and the overall sentence were manifestly inadequate
  • Whether the sentencing judge erred in finding there was an established sentencing range for the 1970s indecent assault offences
  • Whether the sentencing judge erred in taking into account that the respondent would likely serve time in protective custody, in the absence of any evidence to support that finding
  • Whether the judge erred in applying the discount for guilty pleas by including, as a utilitarian benefit, the fact that victims did not have to give evidence
  • Whether the judge erred in treating certain offending conduct as "fantasies from the offender's mind" and using that characterisation to reduce the seriousness of the offences
  • Whether the judge erred in imposing wholly or substantially concurrent sentences across multiple counts
  • Whether the judge erred in reducing the objective seriousness of Count 7 (possession of child pornography) based on the strength of the Crown's case
  • Whether the judge erred in treating a "degree of entrapment" as reducing the seriousness of Count 8

Decision

The Court of Criminal Appeal allowed the appeal and resentenced the respondent across all counts except Count 6 (which had not been appealed). Howie J, with whom McClellan CJ at CL and Harrison J agreed, found the sentences were manifestly inadequate "to a very substantial degree" and identified multiple errors in the sentencing judge's exercise of discretion.

On the protective custody issue, the Court found the sentencing judge had given the respondent an undue benefit by reducing both the head sentence and the non-parole period on account of anticipated protective custody conditions, where there was no evidentiary basis for that finding. This error was characterised as tainting the whole sentencing process.

The Court also found error in the sentencing judge's characterisation of the child pornography material as fantasy-based, in the treatment of purported entrapment as reducing the seriousness of Count 8, and in the degree of concurrency applied across several counts. The judge's reliance on an "established sentencing range" for the 1970s offences was also found to be erroneous.

In resentencing, the Court structured a combination of partially concurrent and partially accumulated fixed terms across Counts 1 through 7, with a head sentence of 3 years and 9 months for Count 8. The overall result was a total sentence of 7 years and 5 months, with an overall minimum period in custody of 5 years and 6 months.

Orders Made

  • Appeal allowed
  • All sentences imposed in the District Court, except that for Count 6, are quashed
  • Count 1: fixed term of 12 months from 17 September 2009
  • Count 2: fixed term of 8 months from 17 July 2010
  • Count 3: fixed term of 12 months from 17 March 2011
  • Count 4: fixed term of 6 months from 17 June 2011
  • Count 5: fixed term of 12 months from 17 September 2011
  • Count 7: fixed term of 8 months from 17 September 2012
  • Count 8: 3 years and 9 months from 17 May 2013, comprising a non-parole period of 1 year and 10 months (to 16 March 2015) and a balance of term of 1 year and 11 months
  • Count 6 sentence remains as originally imposed (no appeal)

Key Takeaways

  • A sentencing judge commits error by reducing a sentence or non-parole period to account for anticipated protective custody conditions where no evidence supports that finding; the Court of Criminal Appeal treated this as an error that infected the entire sentencing exercise.
  • There is no established pattern of lenient sentencing for child sexual assault offences committed in the 1970s that a contemporary sentencing court is required to follow; the historical sentencing context does not dictate a sentencing range for such offences when being sentenced today.
  • The characterisation of child pornography material as "fantasy" from the offender's mind, without evidentiary foundation, constitutes an error when used to diminish the objective seriousness of the offence.
  • Where the Crown does not appeal a particular count, that sentence remains undisturbed even when all other counts are resentenced on appeal.
  • In resentencing following a successful Crown appeal, the Court will restructure the accumulation of sentences to achieve a just overall result rather than simply increasing individual terms in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 81 (repealed), 91H(2), 91H(3), 66EB(3)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(iii)
- Criminal Appeal Rules, r 76
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- R v JW [2010] NSWCCA 49
- Clinton v R [2009] NSWCCA 276
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- R v XX [2009] NSWCCA 115
- Saddler v R [2009] NSWCCA 83
- Mouscas v R [2008] NSWCCA 181
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497
- R v S [2000] NSWCCA 13
- R v Sutton [2004] NSWCCA 225
- R v Roberts (NSWCCA, unreported, 1 November 1974)
- R v Miller (NSWCCA, unreported, 29 July 1977)
- R v Hill (NSWCCA, unreported, 11 July 1979)
- R v Vince (NSWCCA, unreported, 28 May 1991)
- R v Gore-Johnson (NSWCCA, unreported, 16 April 1992)