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Court of Criminal Appeal 23 August 2011

Salman v Director of Public Prosecutions (Cth)

[2011] NSWCCA 192

Sexual offences
CRIMINAL LAW APPEAL SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE PROPER ASSESSMENT OF CRIMINALITY COMPARABLE SENTENCES.

Citation: Salman v Director of Public Prosecutions (Cth) [2011] NSWCCA 192
Court: Court of Criminal Appeal, New South Wales
Date: 23 August 2011
Judges: Allsop P, Simpson J, Buddin J

Background

The appellant, a Turkish-born man in his early sixties, pleaded guilty in the District Court to two offences. The first was importing child pornography in the form of six DVDs, contrary to s 233BAB(5) of the Customs Act 1901 (Cth). The DVDs were discovered when he arrived at Sydney Airport in April 2009 after travelling from Thailand. The second offence was committing an act of indecency on a female person under 16 years of age while in Thailand between December 2007 and March 2008, contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth). The DVDs themselves recorded the acts of indecency.

At sentencing, the District Court also dealt with additional matters, including possession of a foreign passport not issued to him and importation of seven flick knives. The sentencing judge imposed four years' imprisonment on each count, served partially cumulatively, with an overall non-parole period of three years and four months. The appellant sought leave to appeal those sentences as manifestly excessive.

  • Whether the sentences imposed on each count were manifestly excessive having regard to the objective gravity of the offences
  • How the conduct the subject of count 2 (the act of indecency) should be assessed against the full range of conduct captured by s 50BC
  • Whether the sentencing judge correctly applied the relevant factors under s 16A of the Crimes Act 1914 (Cth), including the plea of guilty, the appellant's age, health, and absence of prior criminal history

Decision

The Court of Criminal Appeal granted leave to appeal and, by majority (Allsop P and Simpson J; Buddin J agreeing with Allsop P), allowed the appeal and reduced the sentences. The majority found that both sentences, particularly when combined cumulatively, were excessive when assessed against the full range of conduct encompassed by each offence.

On the child sex tourism count, Allsop P noted that the charge was confined to the act of sucking the victim's breasts, which, while serious, did not constitute sexual intercourse under the definitional provisions. The president acknowledged the gravely predatory nature of the conduct as depicted on the recording but concluded the sentence of four years was excessive relative to the specific act charged.

Simpson J agreed the sentences were manifestly excessive but reasoned that the act of indecency, though not at the highest level of the scale, was nonetheless very serious. The recorded commentary and the exercise of power over the victim were relevant surrounding circumstances. Her Honour found that the victim's age (approximately 15 years) was the most favourable factor for the appellant in assessing objective gravity.

On the Customs Act count, Simpson J accepted that the DVDs were not at the highest end of depravity but noted the replication of the material across six discs as a relevant aggravating feature. Allsop P found the original sentence relatively severe for that offence but, with reference to the principles in Lowndes v R, declined to find it outside the available range on its own. It was the combined effect of the two sentences running cumulatively that warranted intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentences imposed by the District Court on 23 July 2010 set aside.
  • Count 1 (Customs Act importation offence, including s 16BA matters): two years' imprisonment, commencing 1 July 2010, expiring 30 June 2012.
  • Count 2 (act of indecency overseas): three years and three months' imprisonment, commencing 1 January 2011, expiring 31 March 2014.
  • Non-parole period of two years and six months fixed; parole eligibility from 31 December 2012.
  • Certificate matter (Criminal Procedure Act, s 166): three months' imprisonment, concurrent with count 1, commencing 1 July 2010.

Key Takeaways

  • Under s 50BC(1)(a) of the Crimes Act 1914 (Cth), the objective gravity of an act of indecency committed on a child overseas must be assessed by reference to the full range of conduct the provision covers, including the most serious conduct that falls short of sexual intercourse.
  • Surrounding circumstances, including recorded commentary and the exercise of power over a victim, are relevant to the sentencing assessment of an act of indecency even where the specific charge is defined by the physical act alone.
  • The Court of Criminal Appeal confirmed that where two sentences are imposed cumulatively, the combined effect must be scrutinised for overall proportionality, not merely each sentence in isolation.
  • A plea of guilty, advanced age, relative ill-health, and the absence of prior criminal history remain relevant mitigating factors under s 16A of the Crimes Act 1914 (Cth), and the sentences ultimately imposed reflected approximately one-third of the applicable maximum penalties.
  • Following Lowndes v R (1999) 195 CLR 665, a sentence will only be set aside as manifestly excessive where it falls outside the legitimate range available to the sentencing judge; a sentence that is merely "relatively severe" does not automatically reach that threshold.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BAB(5)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 50AB, 50AC, 50BA, 50BB, 50BC(1)(a)
- Crimes (Child Sex Tourism) Amendment Act 1994 (Cth)
- Criminal Code Act 1995 (Cth), Ch 8, Div 272
- Criminal Procedure Act 1986 (NSW), s 166
- Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4A(1A)
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 21(4)

Cases
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Hili v R; Jones v R [2010] HCA 45; 272 ALR 465
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- R v Dennison [2011] NSWCCA 114
- R v Oliver [2003] 1 Cr App R 28
- R v C; Ex parte Attorney-General (Qld) [2004] QCA 469
- Holland v The Queen [2005] WASCA 140; 30 WAR 231
- Assheton v The Queen [2002] WASCA 209; 132 A Crim R 237
- Sage v R [2007] NSWCCA 224
- R v Wicks [2005] NSWCCA 409