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6
Court of Criminal Appeal 17 November 2011

NLR v R

[2011] NSWCCA 246

Sexual offences
CRIMINAL LAW SENTENCING CRIMES (SENTENCING PROCEDURE) ACT S 21A(2)(EB) S 21A(5A) S 21A(3)(M)

Citation: NLR v R [2011] NSWCCA 246
Court: Court of Criminal Appeal, New South Wales
Date: 17 November 2011
Judge(s): Bathurst CJ, James J, Johnson J

Background

The appellant was the step-grandfather of two young girls, aged seven and ten, whom he and his wife regularly babysat. He was convicted on three offences: two counts of sexual intercourse with a person under the age of ten years, and one count of aggravated indecent assault on a person under the age of sixteen years. A further aggravated indecent assault was taken into account at sentencing.

The appellant had presented himself voluntarily to police, made full admissions in a recorded interview, and pleaded guilty at the earliest opportunity. The sentencing judge in the District Court gave him a 25 per cent discount for his pleas, found genuine remorse, and determined all offences fell below the mid-range for their type. The overall sentence comprised head sentences totalling eight years and ten months, with a total non-parole period of five years.

The appellant sought leave to appeal out of time, arguing the sentences were affected by legal error and were manifestly excessive. The Crown did not oppose the extension of time.

  • Whether the sentencing judge erred by treating the location of the offences (the offender's own home) as a separate aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge misapplied s 21A(5A) of the Act by failing to treat the appellant's prior good character and absence of criminal history as mitigating factors
  • Whether the sentencing judge gave insufficient weight to the appellant's assistance to law enforcement under s 21A(3)(m) of the Act
  • Whether the overall sentences were manifestly excessive in all the circumstances

Decision

Ground 1 (Home as aggravating factor): The Court found that the sentencing judge's reference to the offences occurring in the offender's home was made in the context of describing the breach of trust, not as a standalone aggravating circumstance under s 21A(2)(eb). Reading the passage as a whole, no error was established. This ground was rejected.

Ground 2 (Good character and prior record): Under s 21A(5A), good character and lack of prior convictions cannot be used as mitigating factors where the offence involves the sexual abuse of a child. The appellant argued the sentencing judge had gone further than required and treated these matters as aggravating. The Court found the sentencing judge had not treated good character as an aggravating factor, but had properly acknowledged it could not operate in mitigation. Consistent with authorities including Ingham v R and Oh Hyunwook v R, the Court confirmed that an absence of prior convictions does not ordinarily warrant a reduction where s 21A(5A) applies. This ground failed.

Ground 3 (Assistance to law enforcement): The Court found that the sentencing judge had expressly referred in her remarks to the appellant's voluntary attendance at the police station, his participation in a recorded interview, and his full admissions. It was open to infer that those matters had been taken into account. The Court noted that a mere plea of guilty accompanied by admissions does not automatically attract further reduction under s 21A(3)(m), which typically applies where an offender provides substantial assistance about other offences or other offenders. This ground was also rejected.

Ground 4 (Manifest excess): The Court considered the objective seriousness of the offences, the high maximum penalties and standard non-parole periods, the multiple victims, and the significant breach of trust. In light of those factors, the Court held none of the individual sentences exceeded the upper limit of the available sentencing range. The appeal on this ground was dismissed.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 bars good character and absence of prior convictions from operating as mitigating factors where the offending involves child sexual abuse; the Court of Criminal Appeal confirmed this does not amount to treating those matters as aggravating.
  • A sentencing judge's contextual reference to the location of an offence will not constitute a separate aggravating factor where the language, read as a whole, is directed at the nature of the breach of trust rather than at the physical setting as an independent circumstance.
  • Voluntary attendance at a police station and making admissions in a recorded interview may be taken into account in sentencing, but those steps do not automatically qualify as "assistance to law enforcement authorities" under s 21A(3)(m), which is generally reserved for substantial cooperation involving other offences or other offenders.
  • In dismissing the manifest excess ground, the Court emphasised that high statutory maximum penalties and standard non-parole periods remain relevant reference points even where a judge finds that offences fall below the mid-range.
  • No error was shown merely because a sentencing judge found genuine remorse, good rehabilitation prospects, and a low risk of reoffending, yet still imposed significant custodial sentences given the gravity of child sexual offences committed by a person in a position of trust.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(m), 21A(5A), 23
- Crimes Act 1900 (NSW), ss 61M(2), 66A

Cases:
- Brown v R [2010] NSWCCA 73
- Ingham v R [2011] NSWCCA 88
- Oh Hyunwook v R [2010] NSWCCA 148
- R v Ellis (1986) 6 NSWLR 603
- R v Sukkar [2006] NSWCCA 92