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14
Court of Criminal Appeal 2 September 2011

REGINA v KB; REGINA v JL; REGINA v RJB

[2011] NSWCCA 190

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Regina v KB; Regina v JL; Regina v RJB [2011] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 2 September 2011
Judge(s): Bathurst CJ; Buddin J; Harrison J

Background

Three respondents pleaded guilty to aggravated sexual intercourse with a child aged between 10 and 14 years, in company, contrary to s 66C(2) of the Crimes Act 1900. The offence carried a maximum penalty of 20 years' imprisonment. The victim was a 12-year-old girl who had been drinking with the respondents in Tamworth on the night of 23 October 2009, and was found by bystanders lying on the ground in a car park, heavily intoxicated, with a blood alcohol concentration of 0.29 g/100ml.

In the District Court, Judge Williams DCJ sentenced two respondents (KB and JL) to 15 months' imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, with good behaviour bonds. The third respondent (RJB) received a good behaviour bond under s 9 of the same Act for a period of two and a half years. No respondent received a term of full-time custody.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending that the sentences failed to reflect the objective gravity of the offences, inadequately addressed general deterrence, applied an incorrect utilitarian discount for the guilty pleas, and were manifestly inadequate.

  • Whether the sentences imposed failed to reflect the objective gravity of the offences
  • Whether the sentencing judge gave insufficient weight to the principle of general deterrence
  • Whether a 25% discount for the utilitarian value of the guilty pleas was erroneously applied
  • Whether it was an error to impose suspended sentences on KB and JL
  • Whether it was an error to impose a s 9 good behaviour bond on RJB
  • Whether the sentences were manifestly inadequate overall

Decision

Bathurst CJ (with Buddin J and Harrison J agreeing) dismissed all three Crown appeals. The Court acknowledged that the offences were objectively serious, involving a group sexual assault on an intoxicated and vulnerable child. However, the Court approached the appeal on the established principle from House v The King (1936) that appellate intervention in sentencing requires demonstrated error, not mere disagreement with the outcome.

On objective gravity and general deterrence, the Court found that the sentencing judge had addressed both. The judge had expressly identified the serious nature of the offences and referenced general deterrence as a relevant sentencing objective. The Court was not persuaded that these matters had been improperly weighed, particularly given the range of subjective factors before the sentencing judge, including the respondents' youth, limited or no prior criminal history, genuine remorse, and the circumstances surrounding their belief as to the victim's age.

The Court did identify a technical error in how the sentencing judge approached the utilitarian discount for guilty pleas. Rather than applying the correct methodology derived from Lowndes v The Queen (1999), the judge appears to have assessed the discount in a way that was at least prima facie erroneous. However, the Court held that this error alone did not justify intervention, because the sentences were not manifestly inadequate and the error did not make resentencing appropriate in the circumstances.

The Court also exercised its residual discretion against varying the sentences, having regard to evidence placed before it on appeal. Affidavits from KB, JL, and their families demonstrated that both had complied with their supervision conditions, maintained stable employment and relationships, and engaged with psychological support through the Probation and Parole Service. These developments were treated as bearing on personal deterrence. RJB's more limited role in the offence provided a further basis for declining to disturb his sentence.

Orders Made

  • All three Crown sentence appeals dismissed.

Key Takeaways

  • In dismissing the appeals, the Court of Criminal Appeal confirmed that a sentencing error, even if established, does not automatically produce resentencing. The court retains a discretion under s 5D(1) of the Criminal Appeal Act 1912 to decline to vary a sentence despite identifying prima facie error.
  • A guilty plea discount must be assessed using the correct methodology from Lowndes v The Queen (1999), but an erroneous approach to that discount will not necessarily justify appellate interference where the overall sentence is not manifestly inadequate.
  • Post-sentence conduct and rehabilitation, presented through affidavit evidence on appeal, are relevant to the exercise of the sentencing discretion, particularly on the question of personal deterrence: R v JW [2010] NSWCCA 49; R v Carroll [2010] NSWCCA 55.
  • Where a respondent played a comparatively limited role in a joint offence, that role is a legitimate basis for the sentencing court to distinguish between co-offenders, even where the offence is otherwise serious.
  • Under s 68A of the Crimes (Appeal and Review) Act 2001, double jeopardy is excluded from consideration in Crown sentence appeals, and the court is not precluded from increasing a sentence on that ground alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61HA(2), (3), (6), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
- R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
- R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 46
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Button; R v Griffen [2002] NSWCCA 159
- R v NJK [2011] NSWCCA 151
- Gore v R; Hunter v R [2010] NSWCCA 330
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- Mirza v R [2007] NSWCCA 248
- Mulato v R [2006] NSWCCA 282
- R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
- R v Schwenke [2004] NSWCCA 289
- R v Rushby [1977] 1 NSWLR 594