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Court of Criminal Appeal 7 May 2010

AWKO v R

[2010] NSWCCA 90

Sexual offencesDomestic & family violencePublic order & justice offences
CRIMINAL LAW PAROLE PERIOD

Citation: AWKO v R [2010] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 7 May 2010
Judges: McClellan CJ at CL, James J, Rothman J

Background

The appellant pleaded guilty in the District Court to one count of sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act 1900. The offence involved the anal penetration of his six-year-old daughter while his wife was absent from the home. He was also convicted of breaching an apprehended violence order shortly after his arrest.

The sentencing judge imposed a non-parole period of 8 years, 3 months and 13 days, with a parole period of 4 years, 5 months and 15 days. A concurrent fixed term of 2 months was imposed for the apprehended violence order breach. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years.

The appellant, represented by the Legal Aid Commission, sought leave to appeal against the sentence on four grounds, broadly arguing that the sentencing judge had made errors in characterising the offence and had taken irrelevant or inaccurate material into account, resulting in a sentence that was manifestly excessive.

  • Whether the sentencing judge failed to make a sufficiently clear or proper finding as to the objective seriousness of the offence, by using the phrase "at least in the mid-range"
  • Whether the sentencing judge erred in his reasons for departing from the standard non-parole period
  • Whether irrelevant or inaccurate material was taken into account during sentencing
  • Whether the sentence imposed was manifestly excessive

Decision

Ambiguous "at least mid-range" finding: The Court acknowledged that the phrase "at least in the mid-range of objective seriousness" is problematic. Citing R v Knight, R v Biuvanua [2007] NSWCCA 283, McClellan CJ at CL confirmed that such an expression is ambiguous because it leaves open whether the sentencing judge concluded the offence fell above the mid-range, and if so, by how much. This ambiguity prevents the offender and the appellate court from properly understanding the basis for the sentence. However, on the facts of this case, the Court was not persuaded that this framing gave rise to appellable error that warranted intervention, given the overall sentence fell clearly within the appropriate range.

Departure from the standard non-parole period: Both defence counsel and the Crown had accepted at sentence that the offence was mid-range in objective seriousness. Applying the maximum discount for the guilty plea and leaving other mitigating factors aside, a starting non-parole period of around 11 years would have been consistent with the standard non-parole period framework. The sentencing judge then applied additional reductions for the appellant's prior good character, genuine remorse, spontaneous rather than premeditated offending, and good prospects of rehabilitation. The Court found no error in this reasoning.

Alleged inaccurate material: The appellant argued that the sentencing judge inaccurately stated there was no one to speak on his behalf. The Court accepted that a sister-in-law had described the appellant, before his arrest, as an excellent husband and father. However, the Court found the sentencing judge's remark was directed at the appellant's post-offence ostracism from family and community, which was an entirely reasonable inference and not inconsistent with the sister-in-law's earlier observation.

Manifest excess: The Court rejected the submission that the sentence was manifestly excessive. The offending involved a serious breach of trust: a young child was made to undress, was penetrated anally while screaming and crying, and repeatedly asked the appellant to stop. The Court noted the particularly degrading nature of the offence and the victim's extreme vulnerability given her age, and found the sentence was comfortably within the range of the sentencing judge's discretion. McClellan CJ at CL also indicated that even had an error been identified, no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal reaffirmed that a sentencing judge's use of the phrase "at least mid-range" to describe objective seriousness is unsatisfactory, because it fails to identify with sufficient clarity where an offence sits on the seriousness spectrum, leaving both the offender and any appellate court unable to fully scrutinise the reasoning.
  • In dismissing the appeal, the Court found that even where a degree of imprecision exists in a sentencing judge's characterisation of objective seriousness, that imprecision will not automatically warrant intervention if the resulting sentence is within the appropriate range.
  • Where mitigating factors such as prior good character, remorse, spontaneity of offending, and good prospects of rehabilitation are accepted, a sentencing judge may legitimately depart below the standard non-parole period, provided those factors are properly identified in the reasons.
  • No error was established in a sentencing judge's factual observations about an offender's social ostracism following a serious sexual offence, even where some favourable character evidence had been placed before the court, provided those observations are not inconsistent with that evidence.
  • Comparison sentences drawn from different factual contexts carry limited weight on a manifest excess argument: the Court noted that differences in the precise nature of the sexual act, and the particular vulnerability of the victim, are relevant factors distinguishing apparently similar cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)

Cases Cited:
- Eedens v R [2009] NSWCCA 254
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v Knight, R v Biuvanua [2007] NSWCCA 283
- R v Mitchell, R v Gallagher [2007] NSWCCA 296
- R v Pearson [2005] NSWCCA 116
- R v PGM (2008) 187 A Crim R 152
- R v Russell (unreported, NSWCCA, 21 June 1996)
- Rawlings v R [2006] NSWCCA 84
- RJA v R [2008] NSWCCA 137