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Court of Criminal Appeal 12 June 2013

FD v R

[2013] NSWCCA 139

Sexual offences
CRIMINAL LAW SENTENCE WHERE ERROR ESTABLISHED NO OTHER SENTENCE WARRANTED IN LAW APPEAL DISMISSED

Citation: FD v R [2013] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 12 June 2013
Judges: Simpson J, Harrison J, Bellew J

Background

The applicant, a paternal grandfather, pleaded guilty in the District Court to nine counts of aggravated indecent assault and sexual intercourse without consent involving two young grandchildren. The offending occurred over several years at locations in regional New South Wales and Sydney, and the victims were aged between approximately five and nine years old at the times of the offending.

The sentencing judge imposed an aggregate sentence comprising a non-parole period of four years, with a balance of term of four years, commencing 6 July 2012. Medical evidence before the sentencing judge established that the applicant suffered from brain damage causing cognitive deficit at the time of his offending.

The applicant sought leave to appeal, arguing that the sentencing judge failed to give proper weight to that medical evidence when assessing moral culpability and the need for general deterrence.

  • Whether the sentencing judge erred by accepting medical evidence of the applicant's brain damage but then making findings inconsistent with that acceptance, particularly in relation to moral culpability and the relevance of general deterrence.
  • Whether the sentencing judge applied the correct standard non-parole period to the offences under s 61M(2) of the Crimes Act 1900 (NSW).
  • Whether the sentencing judge erred by applying a separate discount for remorse in addition to the discount for the utilitarian value of the guilty pleas.
  • Whether, taking all errors together, some other sentence was warranted in law.

Decision

The Court accepted that the sentencing judge made a material error in failing to treat the applicant's brain damage as a factor reducing his moral culpability and diminishing the weight to be given to general deterrence. That error was of considerable significance and would ordinarily have supported a reduction in the sentence.

However, the Court identified two further errors, both operating in the applicant's favour. First, the sentencing judge mistakenly applied a standard non-parole period of five years to five of the s 61M(2) counts, when the correct figure under the 2007 legislative amendments was eight years for all such counts. The error arose because both parties had presented the incorrect position to the sentencing judge. Second, the sentencing judge impermissibly allowed a separate ten per cent discount for remorse on top of the twenty-five per cent discount already given for the utilitarian value of the guilty pleas, a course inconsistent with established authority.

Bellew J, with Simpson and Harrison JJ agreeing, found that the three errors had to be considered together. The error concerning brain damage, which disadvantaged the applicant, was substantially offset by the two errors that had operated significantly in his favour, including the lower standard non-parole period applied and the excessive guilty plea and remorse discount. The Court also noted the objective seriousness of the offending: it involved a gross breach of trust by a grandfather towards two young victims over an extended period, described by the sentencing judge as "despicable."

Taking all factors into account, the Court was not satisfied that any other sentence was warranted in law. The aggregate sentence was not manifestly excessive and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Multiple sentencing errors at first instance do not automatically warrant a reduction in sentence on appeal; where errors favour the applicant and errors disadvantage the applicant, the Court of Criminal Appeal will weigh them together to determine whether any other sentence was warranted in law.
  • A sentencing judge must engage consistently with accepted medical evidence: accepting evidence of brain damage as credible but then failing to apply it to the assessment of moral culpability and general deterrence constitutes legal error.
  • Under the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), the standard non-parole period for offences under s 61M(2) of the Crimes Act 1900 (NSW) was increased from five years to eight years from 1 January 2008, and the amendment applies to sentencing for any offence committed at any time, provided no conviction or accepted plea pre-dated the commencement of the amendment.
  • Remorse is not a discrete sentencing factor attracting its own additional discount; where a discount is given for the utilitarian value of a guilty plea, a further separate allowance for remorse above that figure constitutes error: R v Borkowski [2009] NSWCCA 102.
  • In dismissing the appeal, the Court reinforced that the gross breach of trust inherent in intrafamilial child sexual abuse perpetrated over a prolonged period remains a serious aggravating factor weighing heavily against any reduction in sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Muldrock v R (2011) 244 CLR 120
- R v Anderson [1981] VR 155; (1980) 2 A Crim R 379
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Israil [2002] NSWCCA 255
- R v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333
- R v Simpson (2001) 53 NSWLR 704