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Court of Criminal Appeal 15 November 2012

RLS v R

[2012] NSWCCA 236

Sexual offences
CRIMINAL LAW APPEAL APPEAL PAROLE PERIOD APPEAL

Citation: RLS v R [2012] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 15 November 2012
Judges: McClellan CJ at CL, Johnson J, Bellew J (judgment by Bellew J; McClellan CJ at CL and Johnson J agreeing)

Background

The applicant had been sentenced in 2000 to five years imprisonment (with a three-year non-parole period) for offences of buggery and indecent assault against two young victims. He was released on parole in May 2003 but was arrested in February 2006, while still on parole, and charged with multiple further child sexual assault offences and a single offence of possessing child pornography.

The child sexual assault offences involved eight counts spanning conduct between 1979 and 1989, perpetrated on three victims who were brothers of one of the earlier victims. In November 2008, the District Court sentenced the applicant to an overall term of 10 years and 6 months imprisonment, with a non-parole period of 7 years and 9 months. In October 2009, a separate fixed term of 20 months was imposed for the child pornography offence, partially cumulative on the earlier sentences.

The applicant sought extensions of time to file notices of intention to seek leave to appeal against both sets of sentences. The notices were filed significantly late: almost three years after the 2008 sentences and approximately 17 months after the 2009 sentence.

  • Whether extensions of time should be granted to file notices of intention to seek leave to appeal, given the substantial delays and limited explanation offered
  • Whether the sentencing judge correctly applied the principle of totality in structuring the sentences for the child sexual assault offences
  • Whether the sentencing judge erred by failing to treat the earlier offences (for which a sentence had already been served) as part of the same course of conduct
  • Whether the sentencing judge erred in declining to find special circumstances justifying a different ratio of non-parole to balance of term
  • Whether the sentences for the child sexual assault offences were manifestly excessive having regard to sentencing practice at the time of offending
  • Whether the sentencing judge made errors in the child pornography sentence, including a mistake as to the maximum penalty and failure to fix a non-parole period
  • Whether, even where errors were established, the Court should intervene by resentencing

Decision

Extension of time: The Court granted the extensions of time, despite finding the applicant's explanation for the delays materially deficient. The affidavit filed in support failed to address why the applicant had not discussed an appeal with his legal representatives when he appeared for sentencing on the child pornography matter in 2009, and offered no explanation at all for the delay in appealing the pornography sentence. The Court acknowledged that an extension is a matter of discretion, and proceeded to grant it given the interests of justice in considering the merits, but it was clear the Court regarded the explanation as inadequate.

Child sexual assault sentences: The Court found that the sentencing judge had committed identifiable errors, including in the application of totality principles. However, on examining whether any lesser sentence was warranted in law, the Court concluded that the errors did not justify intervention. The offending was serious and spanned multiple victims over many years, and the overall sentence structure, while imperfect in construction, was not excessive when assessed against comparable cases and the circumstances of the offending.

Child pornography sentence: The sentencing judge made two errors: applying an incorrect maximum penalty and failing to fix a non-parole period (as required where a sentence exceeds three years). Despite these errors, the Court again declined to intervene. The applicant had committed this offence while still on parole for serious sexual offences, reflecting a continuing pattern of criminal sexual interest in children. The Court held that general deterrence carries significant weight for such offences, and that no lesser sentence was warranted in law.

Overall result: In all three respects (the extension applications, the child sexual assault appeal, and the child pornography appeal), the Court dismissed the substantive appeals after granting leave. Identified sentencing errors did not translate into resentencing where the overall sentences were not manifestly excessive.

Orders Made

In respect of both the child sexual assault sentences and the child pornography sentence:

  • Extension of time in which to file a notice of intention to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Granting an extension of time to appeal remains discretionary, and an affidavit that fails to address obvious gaps in the explanation for delay will be regarded as deficient, even where the Court ultimately exercises discretion in the applicant's favour.
  • Identified errors in a sentencing judge's reasoning do not automatically lead to resentencing: the Court of Criminal Appeal will decline to intervene where, despite the error, no lesser sentence was warranted in law.
  • Where a sentencing judge imposes a fixed term of imprisonment for an offence that exceeds three years, the failure to fix a non-parole period constitutes an error, though it does not necessarily produce an appealable result if the sentence is otherwise within the appropriate range.
  • Possession of child pornography is treated as serious offending because those who possess such material contribute to a market that drives its production and distribution, both of which can involve direct child abuse; general deterrence accordingly weighs heavily in sentencing.
  • Committing further sexual offences involving children while on parole for prior offences of the same character is treated as a significant aggravating factor reflecting recidivism, and attracts substantial punishment even where the later offending does not involve direct physical contact with a child.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes Amendment (Child Pornography) Act 2004 (NSW)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Clarke v R [2009] NSWCCA 49
- Edwards v R [2009] NSWCCA 199
- Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
- GG v R (2010) 204 A Crim R 125
- GRD v R [2009] NSWCCA 149
- Ha v R [2010] NSWCCA 8
- Mill v R (1988) 166 CLR 59
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- Mottram v Regina [2009] NSWCCA 210
- Power v The Queen (1974) 131 CLR 623
- R v Beattie [2000] NSWCCA 201
- R v Burke (CCA NSW, 30 November 1978, unreported)
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v Kairouz [2005] NSWCCA 247
- R v Lawrence and ors [1980] 1 NSWLR 122
- R v Nikolovska [2010] NSWCCA 153
- R v Saddler (2009) 194 A Crim R 452; [2009] NSWCCA 83
- R v Simpson (2001) 53 NSWLR 704