Citation: Essex v R [2013] NSWCCA 11
Court: Court of Criminal Appeal, New South Wales
Date: 5 February 2013
Judges: McClellan CJ at CL, Rothman J, Bellew J (Bellew J delivered the leading judgment, with the other two judges agreeing)
Background
The applicant, a man in his early thirties, was living in a de facto relationship with the mother of two young children. He assumed a parental role over both children, including involvement in their feeding, discipline, and toilet training. On 2 February 2009, while cleaning the three-year-old victim with a garden hose in the backyard, the applicant inserted the hose nozzle into the child's vagina, causing serious penetrating injuries.
The applicant was convicted after a judge-alone trial of aggravated sexual intercourse with a child under 10 years, contrary to section 66A(2) of the Crimes Act 1900. He had also pleaded guilty during trial to two counts of failing to provide necessities of life to the children, and to one count of attempting to pervert the course of justice by writing to the mother urging her to give false evidence.
At first instance, the sentencing judge imposed a non-parole period of 11 years and a total sentence of 15 years and 6 months for the aggravated sexual intercourse offence, producing a total effective sentence of 16 years and 6 months imprisonment with a non-parole period of 12 years. The applicant sought leave to appeal, contending that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by failing to take into account the absence of sexual motivation and the absence of grooming when assessing the objective seriousness of the offence
- Whether the sentencing judge erred by treating the fact that the offence occurred in the victim's home as an aggravating circumstance, where the offender and victim resided together at those premises
- Whether the sentence ultimately imposed was manifestly excessive
Decision
The Court of Criminal Appeal identified two distinct errors in the sentencing judge's reasoning on objective seriousness. First, the sentencing judge failed to take into account that there was no evidence the offending was motivated by sexual gratification and no evidence of any grooming of the victim. These were matters that bore directly on the assessment of objective seriousness and their omission constituted error.
On the second ground, the Court confirmed the established principle that it is an aggravating circumstance for an offender to intrude into the home of a victim, but that principle does not apply where the offender and the complainant reside together. Because the applicant was living at the premises, the sentencing judge erred in treating the location of the offending as an aggravating factor. The Crown had initially conceded this error in written submissions but sought at the hearing to resile from that concession, relying on the decision in R v Humphries. The Court found Humphries distinguishable on the basis that the sentencing judge in that case had not made the specific erroneous finding that the sentencing judge made in the present case.
Having identified both errors, the Court was satisfied that the original sentence was excessive and proceeded to resentence the applicant in respect of count (4). Maintaining the same approximate statutory ratio of 70 per cent between the non-parole period and the total term, the Court reduced the sentence for the principal offence.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed on count (4) (aggravated sexual intercourse with a child under 10, contrary to s 66A(2) of the Crimes Act 1900) quashed
- In substitution: non-parole period of 8 years and 6 months, dating from 9 February 2010 and expiring 8 August 2018, with an additional term of 3 years and 6 months dating from 9 August 2018 and expiring 8 February 2022
Key Takeaways
- The Court of Criminal Appeal confirmed that the absence of sexual motivation and the absence of grooming are relevant mitigating factors when assessing the objective seriousness of a sexual offence against a child, and a sentencing court must take them into account.
- Under the established common law principle, preserved by section 21A of the Crimes (Sentencing Procedure) Act 1999, intruding into a victim's home is an aggravating circumstance. However, that principle does not apply where the offender resided at the same premises as the victim at the time of the offence.
- A sentencing judge's treatment of the victim's home as an aggravating factor, in circumstances where the offender and victim shared that home, constitutes a legal error capable of vitiating the sentence.
- In re-exercising the sentencing discretion, the Court maintained the statutory ratio of approximately 70 per cent between the non-parole period and the total term, reducing the principal sentence from a total of 15 years and 6 months to 12 years imprisonment.
- Sentencing errors do not need to be of great magnitude to justify appellate intervention: even errors characterised by the Crown as "technical and minor" can undermine the validity of a sentence if they relate to an identified and operative component of the sentencing reasoning.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW)
Cases:
- Aldous v R [2012] NSWCCA 153
- Butler v R [2012] NSWCCA 23
- EK v R (2010) 208 A Crim R 157
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Comert [2004] NSWCCA 125
- R v Dunn (CCANSW, 15 April 1992, unreported)
- R v Humphries [2004] NSWCCA 370
- R v King [2009] NSWCCA 117
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Tapai v R [2009] NSWCCA 246
- Williams v R [2012] NSWCCA 172
- Zrieka v R [2012] NSWCCA 44