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Court of Criminal Appeal 6 May 2013

DJM v R

[2013] NSWCCA 101

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SENTENCING APPEAL SENTENCE APPEAL SENTENCE APPEAL DISSEMINATE CHILD PORNOGRAPHY

Citation: DJM v R [2013] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 6 May 2013
Judges: Basten JA, Simpson J, Blanch J

Background

The appellant pleaded guilty in the District Court to multiple offences involving the serious sexual abuse of his 13-year-old stepdaughter, together with child pornography offences. The offending included aggravated sexual intercourse on multiple occasions, using the child for pornographic purposes, disseminating child pornography (including by webcam to third parties), and possessing child pornography images of another child.

The District Court imposed a total effective sentence of 17 years and 9 months, with a non-parole period of 13 years and 3 months, structured across six counts with several additional matters taken into account on Form 1. The sentences were cumulative, running from October 2009 through to July 2013.

The appellant sought leave to appeal, contending that the sentencing judge made several errors in the exercise of her sentencing discretion, including errors relating to individual counts and to the overall structure of the sentence.

  • Whether the sentencing judge took into account an irrelevant matter under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the judge made a finding of special circumstances and, if so, whether sufficient weight was given to that finding
  • Whether the plea of guilty was given adequate consideration
  • Whether the sentence on the count of disseminating child pornography (Count 1) was manifestly excessive
  • Whether the sentences on the aggravated sexual intercourse counts (including the Form 1 matters) were manifestly excessive
  • Whether the total effective sentence was manifestly excessive, having regard to the totality principle

Decision

The Court of Criminal Appeal, in reasons delivered by Blanch J (with Basten JA and Simpson J agreeing), dismissed most grounds of appeal but found error in two respects: the sentence on Count 1 (disseminating child pornography) and the sentence on Count 6 (aggravated sexual intercourse) were manifestly excessive. These errors required the total sentence to be reviewed.

On Count 1, the court found that a five-year fixed term was disproportionate given the nature of the offence and the sentences imposed on more serious counts. On Count 6, the court found the structure and length of the non-parole period required adjustment to properly reflect totality and the balance between the non-parole period and the head sentence.

The court rejected the ground that the judge had failed to properly consider the plea of guilty or that she had taken into account an irrelevant matter. The court also found no significant departure from the principles in Johnson v The Queen regarding the structure of cumulative sentences.

On totality, the court was satisfied that the individual errors in Counts 1 and 6 flowed through to render the total effective sentence manifestly excessive. The restructured sentences were designed to achieve an appropriate balance between the head sentence and the non-parole period, consistent with the statutory ratio.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Count 5: sentence of 18 months fixed term confirmed, dating from 8 October 2009
  • Count 1: sentence quashed; 3 years fixed term imposed, dating from 8 April 2010
  • Count 2: sentence of 7 years fixed term confirmed, but re-dated to commence 8 October 2010
  • Count 3 (including Form 1): sentence quashed; 7 years fixed term imposed, dating from 8 October 2011
  • Count 4 (including Form 1 matters): sentence quashed; 7 years fixed term imposed, dating from 8 April 2012
  • Count 6 (including Form 1): sentence quashed; non-parole period of 7 years from 8 October 2012 with a balance of term of 3 years and 4 months
  • Total effective sentence: non-parole period of 10 years with a balance of term of 3 years and 4 months; first eligible date for parole 7 October 2019

Key Takeaways

  • The Court of Criminal Appeal confirmed that errors in individual counts within a complex cumulative sentencing structure can flow through to render the total effective sentence manifestly excessive, even where most individual sentences are not disturbed.
  • Where cumulative sentences are imposed across multiple counts, the totality principle requires the sentencing court to ensure the overall sentence reflects the totality of the criminality and that the non-parole period bears an appropriate relationship to the head sentence.
  • A five-year fixed term for disseminating child pornography was found to be disproportionate in the context of more serious sexual offences on the same indictment, illustrating that individual sentences must remain calibrated relative to the overall sentencing hierarchy.
  • The principles in Johnson v The Queen regarding the structure of cumulative sentences were applied: the sentencing court's failure to state precise start and end dates for each sentence was not, on its own, an appealable error, provided the intended structure was clear.
  • Form 1 matters, while not separately punished, are a legitimate factor in fixing the sentence for the principal offence to which they are attached, and the Court's restructured sentences reflected this where multiple Form 1 matters were associated with a single count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61N, 91G, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- R v Comert [2004] NSWCCA 125
- R v Hudson (Court of Criminal Appeal NSW, 30 July 1998, unreported)
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- DBW v Regina [2007] NSWCCA 236
- Mill v The Queen [1988] HCA 70; (1988) 106 CLR 59
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616