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Court of Criminal Appeal 1 April 2011

HJWG v R

[2011] NSWCCA 50

Sexual offences
CRIMINAL SENTENCE APPEAL SEXUAL ASSAULT OBJECTIVE SERIOUSNESS MANIFEST EXCESS APPEAL DISMISSED

Citation: HJWG v R [2011] NSWCCA 50
Court: Court of Criminal Appeal, New South Wales
Date: 1 April 2011
Judge(s): McClellan CJ at CL (with Johnson J and McCallum J agreeing)

Background

The appellant, a man in his mid-fifties, pleaded guilty to four charges of sexual assault committed against his daughter over a period spanning from when she was approximately seven years old through to around ten years of age. The offences included an act of indecency (kissing), digital penetration of the anus, rubbing of the complainant's genital area, and causing the complainant to touch the appellant's genitals. The offences came to light in January 2009 after the appellant made admissions to the complainant's mother.

The sentencing judge imposed an aggregate term of 11 years imprisonment, with an effective non-parole period of 8 years. A finding of special circumstances was made, producing a ratio of non-parole period to head sentence of approximately 73 per cent.

The appellant sought leave to appeal against sentence on four grounds, arguing that the sentencing judge had misassessed the objective seriousness of the offences and that the sentences imposed were manifestly excessive.

  • Whether the sentencing judge erred by failing to assess objective seriousness with sufficient particularity for each offence
  • Whether the sentencing judge erred in finding the objective seriousness of particular offences fell above the mid-range
  • Whether individual sentences, and the aggregate sentence, were manifestly excessive
  • Whether an error of process in assessing objective seriousness automatically requires resentencing by the Court of Criminal Appeal

Decision

The Court acknowledged a procedural error in the way the sentencing judge assessed objective seriousness. Simply stating that an offence fell "above" or "below" the mid-range, without further detail, was insufficient. The Crown itself accepted the assessments lacked the required particularity, consistent with earlier decisions of the Court in R v Sellars and R v Eedens. McClellan CJ at CL noted that the same judge had made an equivalent error of process in R v McEvoy, though the present sentence was handed down before that judgment was published.

Despite finding the procedural error, the Court declined to intervene. McClellan CJ at CL held that an error of process of this kind does not automatically bring the Court into the territory of resentencing. The central question remained whether the sentences were manifestly excessive, and the Court was not persuaded that they were.

On the individual sentences, the Court was satisfied that the penalties were open to the sentencing judge. For Count 2 (sexual intercourse with a child under ten), the sentence of 9 years carried a maximum of 25 years and a standard non-parole period of 15 years. After applying a 25 per cent utilitarian discount for the guilty plea, a starting point of 12 years was available, and the sentence of 9 years was not excessive. For Counts 3 and 4, which occurred on the same day, the Court rejected the submission that an effective combined sentence of 5 years was too severe, noting the two offences involved different conduct and could not be treated as a single sequence of criminality.

The sentences were characterised as severe but not manifestly excessive when measured against the prescribed standard non-parole periods. Leave to appeal was granted, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to specify with sufficient particularity where an offence falls within the range of objective seriousness constitutes a procedural error, but does not, of itself, require the Court of Criminal Appeal to resentence the offender.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the operative question remains whether the sentences were manifestly excessive, consistent with the principles in House v The King (1936) 55 CLR 499.
  • Standard non-parole periods serve as a meaningful benchmark when assessing whether individual sentences are excessive relative to the maximum penalties prescribed by the legislature.
  • Two separate acts of indecency occurring on the same day do not automatically constitute a single course of criminal conduct warranting full concurrency; distinct conduct involving different acts may justify at least partial accumulation.
  • The Court of Criminal Appeal confirmed the approach in R v Sellars [2010] NSWCCA 133 and R v Eedens [2009] NSWCCA 254 that greater particularity in objective seriousness findings is required, while also making clear that not every such deficiency will justify appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW) (ss 61M(1), 61M(2), 66A)

Cases
- House v The King (1936) 55 CLR 499
- R v Eedens [2009] NSWCCA 254
- R v Johnson [2004] NSWCCA 140
- R v McEvoy [2010] NSWCCA 110
- R v Sellars [2010] NSWCCA 133
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284