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8
Court of Criminal Appeal 22 August 2013

RP v R

[2013] NSWCCA 192

Sexual offences
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE RE SENTENCE

Citation: RP v R [2013] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 22 August 2013
Judge(s): Simpson J, Price J, RA Hulme J (Price J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to two separate indictments involving sexual offending spanning several decades. The first indictment contained a single count of indecent assault of a female then under the age of 16 years, contrary to the now-repealed s 76 of the Crimes Act 1900, committed between 1978 and 1980. The conduct involved the applicant rubbing cream onto the face and upper chest of an 11-year-old girl on two occasions while they were alone at his home. A second, identical offence was taken into account on a Form 1 (a procedure by which a court considers additional admitted offences when passing sentence on the principal charge without recording separate convictions).

The second indictment covered seven more serious offences committed between 2002 and 2009, involving the applicant's granddaughters. Those offences included charges of sexual intercourse with a child under 10, aggravated sexual intercourse without consent, and possession of child pornography. The applicant did not challenge the sentences imposed for those seven offences.

The appeal concerned only the sentence on the first indictment, for which the District Court imposed a fixed term of one year's imprisonment. Because a sentence on the second indictment was backdated to partially overlap, the effective custodial period attributable to the first indictment was six months.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence under the repealed s 76, by declining to place it at the very lowest end of the range of criminality captured by that provision
  • Whether the judge gave excessive weight to the victim impact statement when assessing the sentence for the first indictment
  • Whether the resulting sentence was manifestly excessive

Decision

Ground 1: Objective seriousness. During sentencing proceedings, the judge indicated he regarded the offending as "near the bottom" rather than "at the very bottom" of the range, and defence counsel did not dispute that characterisation. The Court of Criminal Appeal found the judge's sentencing remarks, though not precisely mirroring the exchange at hearing, were consistent with that characterisation. The applicant did not argue that placing the offending "near the bottom" was itself an error. Ground 1 was dismissed.

Grounds 2 and 3: Disproportionate non-parole period and manifest excess. The principal complaints concerned the length of the sentence and the structure of the non-parole period relative to the objective seriousness of the offending. The Court found error in the sentence imposed for the first indictment and accepted that the judge had given too much weight to the victim impact statement when setting the sentence, noting that objective criminality remains the primary consideration when fixing the appropriate penalty for an offence of this kind.

Re-sentence. The Court quashed the one-year fixed term and re-sentenced the applicant to a fixed term of two months imprisonment for the first indictment. To preserve the totality principle, the commencement date for one count on the second indictment was adjusted by one month, resulting in a revised overall sentence of 13 years 7 months with a non-parole period of 9 years 7 months. The earliest parole eligibility date shifted from 6 January 2020 to 6 August 2019.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed by Armitage DCJ on 6 February 2012 for the single count on the first indictment is quashed.
  • In lieu thereof, the applicant is sentenced to two months imprisonment commencing 7 January 2010 and expiring 6 March 2010.
  • Commencement and expiration dates for all seven sentences on the second indictment adjusted accordingly (counts restructured to cascade from 7 February 2010 through to 6 August 2023).
  • Earliest parole eligibility date: 6 August 2019.

Key Takeaways

  • Under the now-repealed s 76 of the Crimes Act 1900, the range of criminality captured was broad, extending well beyond physical contact with genitalia to encompass conduct that could not, at the time, be charged under any more serious provision. This historical context informs the assessment of where particular conduct sits within that range.
  • A sentencing court does not err simply by declining to place an offence at the absolute lowest point of the range, provided the characterisation adopted is consistent with the conduct and is not contradicted during the sentencing exchange.
  • Victim impact statements are a legitimate sentencing consideration, but objective criminality remains the primary consideration when determining the appropriate penalty. Giving disproportionate weight to a victim impact statement at the expense of objective seriousness can constitute a sentencing error.
  • In dismissing the challenge to the sentence on the first indictment's classification of seriousness while allowing the appeal on manifest excess, the Court of Criminal Appeal confirmed that these are distinct inquiries requiring separate analysis.
  • Where resentencing affects the structure of an overall sentence across multiple indictments, the principle of totality requires corresponding adjustments to the commencement and expiration dates of related sentences to preserve the intended overall sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66A, 61J, 66C(2), 66L, 61M(2), 91H(2), 76 (repealed)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Nelson v R [2007] NSWCCA 221
- O'Kell v R [2013] NSWCCA 162
- Ollis v R [2011] NSWCCA 155
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Baker [2000] NSWCCA 85
- R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300