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11
Court of Criminal Appeal 30 November 2012

LG v R

[2012] NSWCCA 249

Sexual offences
CRIMINAL LAW APPEAL SENTENCE SENTENCE WAS NOT MANIFESTLY EXCESSIVE.

Citation: LG v R [2012] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 30 November 2012
Judge(s): McClellan CJ at CL (principal judgment), Price J, Barr AJ

Background

The applicant pleaded guilty in the Local Court to four sexual offences committed against a 14-year-old girl on a single occasion in September 2009. The offences were carried out together with the applicant's then-boyfriend (and now husband) and involved a sequence of distinct sexual acts, including indecent assault, digital penetration, use of a vibrator, and cunnilingus. The applicant and her co-offender were known to the complainant's family through a youth aviation organisation in which both adults held instructional roles.

At sentencing, the judge imposed partially cumulative sentences across the four counts, with an overall accumulation period of 18 months. The total sentence was a non-parole period of 4.5 years and an overall term of 7.5 years. The application for leave to appeal was filed out of time, but no objection was raised to an extension being granted.

The applicant argued on appeal that the sentencing judge should have ordered a far greater degree of concurrency across the sentences, given that all offences arose from one short, isolated episode of offending.

  • Whether the sentencing judge erred in imposing partially cumulative, rather than largely concurrent, sentences across offences forming part of a single episode of criminal conduct
  • Whether the resulting total effective sentence was manifestly excessive

Decision

McClellan CJ at CL acknowledged that all offences occurred during a single continuous episode and that the sentencing judge had expressly recognised this. The judge had also found that the objective gravity of the primary offence (aggravated indecent assault) fell below the middle range of seriousness, and had taken into account the applicant's prospects of rehabilitation and personal circumstances.

However, the Court confirmed that where multiple distinct criminal acts occur within the same episode, each act carries its own criminality. Imposing entirely concurrent sentences would fail to reflect the totality of that criminality. The Court drew on established authority that this principle applies to sexual assault offences arising from a single incident, just as it does to other categories of offending.

The Court found that the sentencing judge's structure, while not the only available approach, was within the proper exercise of sentencing discretion. McClellan CJ at CL noted that he might personally have structured the sentences differently, but that observation was not sufficient to establish appealable error. No complaint had been made about the length of any individual sentence.

Price J and Barr AJ agreed, with Barr AJ expressly confirming that both the individual sentences and the total effective sentence fell within the range of discretion available to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Partially cumulative sentences across offences arising from a single criminal episode are not erroneous in principle, provided each offence represents distinct criminal conduct that would be inadequately reflected by full concurrency.
  • The Court of Criminal Appeal confirmed that the principle requiring sentences to reflect total criminality applies to sexual assault offences arising from a single incident, not only to other categories of offending such as dangerous driving.
  • In dismissing the appeal, the Court reiterated that a sentencing structure will not be disturbed on appeal simply because the appellate court might have adopted a different approach, where the structure chosen remains within the available discretionary range.
  • No error is established merely by pointing to mitigating factors, such as an isolated incident or a finding of below-mid-range objective seriousness, if the sentencing judge demonstrably took those matters into account.
  • The cases of R v Hammoud (2000) 118 A Crim R 66 and R v MMK [2006] 164 A Crim R 326 were cited as authority for the approach to structuring cumulative sentences across related offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault, child under 16)
- Crimes Act 1900 (NSW), s 66C(4) (aggravated sexual intercourse with child aged 14 to 16)
- Crimes Act 1900 (NSW), s 61O(1) (aggravated act of indecency towards child under 16)

Cases
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v MMK [2006] NSWCCA 272; 164 A Crim R 326
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326