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36
Court of Criminal Appeal 18 September 2012

R v Brown

[2012] NSWCCA 199

Sexual offences
CRIMINAL LAW CROWN APPEAL INADEQUACY OF SENTENCE BUGGERY ACT OF INDECENCY WITH A MALE ACT OF GROSS INDECENCY

Citation: R v Brown [2012] NSWCCA 199
Court: Court of Criminal Appeal, New South Wales
Date: 18 September 2012
Judge(s): Macfarlan JA, McCallum J, Grove AJ (all agreeing)

Background

The respondent pleaded guilty in the East Maitland District Court to an indictment containing 27 counts of sexual offences against young males, and asked for a further 20 offences to be taken into account on sentence. The offences were committed over approximately 22 years, between 1974 and 1996, when the respondent was aged between 24 and 45. There were 20 individual victims in total, ranging in age from 8 to 17 years.

The offences included buggery, homosexual intercourse with males aged between 10 and 18, indecent assault, sexual intercourse without consent, and multiple counts of assault accompanied by acts of indecency. The respondent exploited positions of trust, including as a youth group leader, and used alcohol, drugs, and pornographic material to facilitate offending against a succession of victims.

The sentencing judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years, reflecting a finding of special circumstances. The Crown appealed, contending the sentence was inadequate.

  • Whether the sentencing judge failed to apply the totality principle correctly when fixing the aggregate sentence
  • Whether the sentencing judge erred in his approach to the offences involving anal penetration
  • Whether the sentencing judge incorrectly identified the maximum penalty for one count as 2 years when it was in fact 5 years
  • Whether the aggregate sentence was manifestly inadequate, having regard to the number of victims, the duration of offending, and the circumstances of the crimes
  • How the historical nature of the offences (requiring regard to sentencing practice at the time of offending) affected the re-sentencing exercise

Decision

Grove AJ (with whom Macfarlan JA and McCallum J agreed) allowed the Crown appeal and re-sentenced the respondent. The Court found that the aggregate sentence imposed in the District Court significantly failed to reflect the seriousness of the offending, given the number of victims, the duration of offending over more than two decades, and the deliberate grooming conduct involved.

Because the offences were historical, the Court was required to apply sentencing principles as they existed at the time of each offence, consistent with the approach in R v MJR. The Court also noted that pre-1989 sentencing operated under the Parole of Prisoners Act 1966, under which non-parole period practice differed from the statutory proportions later introduced by the Sentencing Act 1989. These considerations informed, but did not excuse, the inadequacy of the original sentence.

The Court considered whether harsher prison conditions at a higher security classification would provide a basis for mitigating the re-sentence. It concluded, on the information available, that this had not been established to the required standard.

Applying the restraint that attaches to re-sentencing after a successful Crown appeal, Grove AJ nevertheless assessed the appropriate sentence as a non-parole period of 12 years with a balance of term of 8 years. The Court made orders only in respect of the aggregate sentence, consistent with the operation of section 53A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent re-sentenced to an aggregate term of imprisonment with a non-parole period of 12 years commencing 24 November 2011 and expiring 23 November 2023, together with a balance term of 8 years commencing 24 November 2023
  • Earliest date of eligibility for parole specified as 23 November 2023

Key Takeaways

  • An aggregate sentence of 10 years for 27 counts of serious child sexual offences against 20 victims over 22 years was found to be manifestly inadequate and was increased to 20 years (non-parole period of 12 years).
  • Where offences are historical in nature, sentencing courts must apply the sentencing principles and practices that operated at the time of the offending, not those in force at the date of sentence, consistent with R v MJR (2002) 54 NSWLR 368.
  • Pre-September 1989 offences attracted the operation of the Parole of Prisoners Act 1966, under which the approach to setting non-parole periods differed materially from the statutory proportions later enacted by the Sentencing Act 1989.
  • Restraint applies on re-sentencing following a successful Crown appeal, but that restraint does not prevent a substantial upward revision where the original sentence significantly undervalued the gravity and cumulative weight of the offending.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, where an aggregate sentence is the subject of a Crown appeal, the Court of Criminal Appeal may adjust the aggregate sentence without being required to revisit each individual indicative term separately.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61E(1), 61I, 61M(1), 61O(1), 78K, 78Q, 79, 81, 81A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Parole of Prisoners Act 1966 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- AJB v The Queen [2007] NSWCCA 51; (2007) 169 A Crim R 32
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Shannon v R [2006] NSWCCA 39