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Court of Criminal Appeal 21 February 2011

AAT v R

[2011] NSWCCA 17

Sexual offences

Citation: AAT v R [2011] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 21 February 2011
Judges: McClellan CJ at CL, Buddin J, Schmidt J

Background

The applicant, a young man aged 22 at the time of the offences, pleaded guilty in the Local Court to five charges arising from the sexual abuse of his eight-year-old half-brother. The offending included acts of oral sexual intercourse and other sexual contact, producing child pornography by photographing the victim, and using the internet to access child pornography material. Two further offences of aggravated indecent assault were taken into account on sentence via Form 1 documents.

The applicant was detected following electronic surveillance by the Australian Federal Police, who had initially become aware of him through a separate investigation originating in New Zealand. Police attended his premises in December 2008 and found the victim hiding in a cupboard. The victim subsequently disclosed the full extent of the abuse over a period of months.

In the District Court the applicant was sentenced to an effective total term of 8 years 6 months imprisonment with an effective non-parole period of 6 years 3 months. He sought leave to appeal to the Court of Criminal Appeal on the grounds that the sentencing judge had erred in certain aspects of the sentencing exercise.

  • Whether the sentencing judge erred in treating the sexual abuse offences as falling within the "worst category" of cases under s 66A of the Crimes Act 1900 (NSW), which would have made a standard non-parole period of 15 years the relevant benchmark
  • Whether the sentencing judge erred in the discount applied for the applicant's pleas of guilty and for any assistance provided to the authorities
  • Whether the effective non-parole period was appropriate having regard to the totality principle and the requirement to find special circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had erred in aspects of the sentencing exercise. While the gravity of the offending was not in doubt, the Court identified that the sentences as structured did not correctly reflect the judge's own stated intentions regarding the overall length of the sentence, including the appropriate discount for the guilty pleas.

Buddin J, with whom McClellan CJ at CL and Schmidt J agreed, concluded that the effective total sentence should be reduced to give effect to the sentencing judge's expressed intention of an overall sentence of 7 years 6 months imprisonment. The original effective non-parole period of 6 years represented 80% of the head sentence, which was considered disproportionately high.

The Court substituted a revised non-parole period of 5 years 6 months, representing marginally less than 75% of the head sentence. It found that partial accumulation of sentences warranted a finding of "special circumstances," justifying the departure from the standard ratio between the non-parole period and the head sentence. The Court noted this reflected the minimum period of custody consistent with the principles in R v Simpson (2001) 53 NSWLR 704.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences imposed in the District Court quashed and the following substituted:
  • Count 2: non-parole period of 3 years 3 months commencing 13 March 2009, balance of term 2 years
  • Count 3 (and Form 1 matter): non-parole period of 3 years 3 months commencing 13 September 2009, balance of term 2 years
  • Count 1 (and Form 1 matter): non-parole period of 4 years 3 months commencing 13 June 2010, balance of term 2 years, expiring 12 September 2016
  • Count 4 (producing child pornography): fixed term of 12 months commencing 13 June 2012
  • Count 5 (internet access to child pornography): fixed term of 6 months commencing 13 December 2012
  • Applicant eligible for release on parole on 12 September 2014

Key Takeaways

  • Where a sentencing judge expresses a clear intention as to the overall length of a sentence, the individual component sentences must be structured to give actual effect to that intention; a failure to do so can constitute error on appeal.
  • The effective non-parole period as a proportion of the head sentence requires careful scrutiny, particularly where multiple sentences are partially accumulated. An 80% ratio was found to be excessive in the circumstances of this case.
  • A finding of "special circumstances" under the relevant sentencing principles can be warranted where partial accumulation of sentences would otherwise produce an unjustifiably lengthy non-parole period relative to the head sentence.
  • Pleas of guilty entered at an early stage entitle an offender to a discount in sentencing, and a failure to properly apply that discount is a recognised ground of appeal against sentence severity.
  • Under s 66A of the Crimes Act 1900 (NSW), the "worst category" classification carries significant consequences through the standard non-parole period of 15 years, making the threshold for that classification a live issue on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 91H(2)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)

Cases:
- Dolman v R [2010] NSWCCA 137
- Eedens v R [2009] NSWCCA 254
- Glover v The Queen (2009) 193 A Crim R 292
- MLP v R (2006) 164 A Crim R 93
- Pearce v The Queen (1998) 194 CLR 610
- R v AJP (2004) 150 A Crim R 575
- R v Davis [1999] NSWCCA 15
- R v Schodde (2003) 142 A Crim R 307
- R v Simpson (2001) 53 NSWLR 704
- R v Way (2004) 60 NSWLR 168
- R v Woods (2009) 195 A Crim R 173
- SZ v The Queen (2007) 168 A Crim R 249