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10
Court of Criminal Appeal 14 December 2012

RJT v R

[2012] NSWCCA 280

Also reported as (2012) 218 A Crim R 490
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL ASSAULTS UPON CHILD ASSISTANCE TO AUTHORITIES

Citation: RJT v R [2012] NSWCCA 280
Court: Court of Criminal Appeal, NSW
Date: 14 December 2012
Judges: Basten JA, Adams J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to two serious child sexual assault offences committed against his seven-year-old daughter. The sentencing judge imposed an aggregate sentence of 10 years imprisonment with a minimum custodial term of six years and six months. The offences were described as "simply heinous," and the sentences, though comparatively modest relative to the available maxima, reflected significant weight given to the applicant's own history of childhood sexual abuse.

Before being charged with his own offences, the applicant had reported to police the historical child sexual abuse he suffered at the hands of his grandfather. That report led to a successful police investigation. The applicant also implicitly undertook to give evidence in any resulting proceedings.

The applicant appealed on the ground that the sentencing judge wrongly declined to reduce his sentence under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to account for this assistance. The sentencing judge had held that the rationale of the provision did not extend to a person whose assistance consisted entirely of reporting crimes of which they were the victim.

  • Whether section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies where an offender's assistance to authorities consists of reporting historical child sexual abuse of which they were themselves the victim.
  • Whether, if the power was engaged, the sentencing judge should have exercised her discretion to reduce the sentence.
  • What level of discount, if any, was appropriate in the circumstances.
  • Whether questions about the availability of a discount for assistance provided before the offender's own offences were committed needed to be resolved in this case.

Decision

The Court of Criminal Appeal was divided on the outcome. Basten JA (with whom Adams J agreed) held that the sentencing judge erred in concluding that section 23 did not apply to the applicant's circumstances. Although the primary purpose of the provision is to encourage reporting by those embedded in criminal networks, the public interest in encouraging victims of sexual abuse to report also falls within the section's scope. A purposive interpretation that excluded victim-reporters entirely was too narrow.

Basten JA reasoned that reporting sexual abuse is notoriously rare and that there is a genuine public interest in increasing such reporting. The limited scope of the incentive, and the fact that the reporter was a victim rather than a co-offender, did not extinguish the provision's application. The discount should, however, be more limited than in cases squarely within the provision's primary field of operation.

Basten JA determined that a 10% discount was appropriate, reducing the total sentence to nine years with a minimum custodial term of five years and ten months. Questions about the availability of a discount where assistance was provided before the offender's own offences were committed, or before charges were laid, were left for a case in which those issues arose directly.

R A Hulme J, by contrast, concluded that even if section 23 were technically available, the discretion should not have been exercised. His Honour observed that the sentences were already relatively modest given the serious nature of the offending, and that the applicant had already obtained considerable benefit from his history of abuse being accepted without question. The resulting orders reflected the position of R A Hulme J, with the appeal dismissed by majority in terms of the formal outcome, though the reasons of Basten JA represent the majority view on the statutory construction point.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

(Note: The formal orders were those proposed by R A Hulme J. Basten JA's reasons, reflecting the majority view on the section 23 construction question, would have allowed the appeal and resentenced the applicant, but the disposition of the application as recorded in the orders is dismissal.)

Key Takeaways

  • Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not confined to offenders who assist authorities in relation to crimes committed within the same criminal milieu. The majority of the Court of Criminal Appeal held that the provision can apply where an offender reports historical offences of which they were the victim.

  • The public interest rationale underlying section 23, including encouraging the reporting of sexual abuse, is broad enough to support a discount in favour of a victim-reporter, even though that context is not the provision's primary field of operation.

  • A sentence reduction available under section 23 in circumstances outside the provision's core purpose warrants a more limited discount than would otherwise apply.

  • The Court of Criminal Appeal expressly reserved the question of whether a discount is available where assistance was provided before both the commission and the discovery of the offences for which the offender is being sentenced, leaving that issue for a case where it squarely arises.

  • Under section 23(3), the sentence must not be reduced to a level unreasonably disproportionate to the offending, a constraint that operates independently of any assessment of the value of the assistance provided.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 23(1), 23(3)
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A, 66A(2), 578A
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Criminal Legislation Amendment Act 1992 (NSW)

Cases:
- Ballard v R [2011] NSWCCA 193
- FS v R (2009) 198 A Crim R 383
- Isaac v R [2012] NSWCCA 195
- R v Calderoni [2000] NSWCCA 511
- R v Cartwright (1989) NSWLR 243
- R v Downey (1997) 97 A Crim R 41
- R v Fernando [2004] NSWCCA 147
- R v Gallagher (1991) 23 NSWLR 220
- R v Golding (1980) 24 SASR 161
- R v James and Sharman (1913) 9 Cr App R 142
- R v Lowe (1977) 66 Cr App R 122
- R v Many (1990) 51 A Crim R 54
- R v Perez-Vargas (1986) 8 NSWLR 559
- R v Qutami (2001) 127 A Crim R 369
- R v Sinfield (1981) 3 Cr App R (S) 258
- R v Sukkar (2006) 172 A Crim R 151
- Raad v R [2011] NSWCCA 138