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Court of Criminal Appeal 18 October 2013

R v DKL

[2013] NSWCCA 233

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE CROWN APPEAL MANIFEST INADEQUACY EFFECT OF DELAY OFFEND

Citation: R v DKL [2013] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 18 October 2013
Judge(s): Gleeson JA, RA Hulme J, Adamson J (all agreeing)

Background

The respondent was sentenced in the District Court by Ashford DCJ in April 2013 for two offences: sexual intercourse with a child under 10 years and using an offensive weapon with intent to intimidate. The offences occurred between Christmas Day 1996 and New Year's Day 1997, when the respondent sexually abused his youngest daughter and then pointed a loaded rifle at his teenage son to prevent him from disclosing what he had witnessed.

These offences came to light only after the respondent was already serving a sentence imposed by Conlon DCJ in May 2011 for separate offences committed against his stepdaughter between 2009 and 2010. The 2011 sentence carried an effective non-parole period of five years and nine months, with the earliest release date in June 2016.

The Director of Public Prosecutions appealed the sentences imposed by Ashford DCJ, arguing that the substantial concurrence between those sentences and the existing 2011 sentence failed to reflect the totality of the respondent's criminal conduct across both sets of offending.

  • Whether the sentences imposed by Ashford DCJ were manifestly inadequate, given the degree of concurrence with the pre-existing sentence imposed by Conlon DCJ
  • Whether the delay in prosecuting the 1996-1997 offences, and the respondent's opportunity to re-offend in the intervening period, were relevant to the adequacy of the sentence
  • Whether the Court should exercise its residual discretion to dismiss the Crown appeal despite finding the sentence manifestly inadequate, having regard to the respondent's deteriorating physical and mental health since incarceration

Decision

The Court of Criminal Appeal, through Adamson J (with whom Gleeson JA and Hulme J agreed), found that the sentences imposed by Ashford DCJ were manifestly inadequate. The degree of concurrence with the earlier sentence meant the combined effect did not properly reflect the totality of the respondent's offending, which included gross abuse of trust, repeated sexual abuse of his own children, and the use of a firearm to intimidate a child witness.

The Court rejected the respondent's argument that delay in prosecution supported the adequacy of the sentence. The Court noted that the delay had not been caused by any deficiency in the appeal process, nor did it risk disrupting the respondent's rehabilitation in the usual sense. Significantly, the respondent had used the period of delay as an opportunity to commit the later offences against his stepdaughter, which militated against treating delay as a factor in his favour.

On the question of residual discretion, the Court reached a different conclusion. It found that the respondent's health had deteriorated markedly since his incarceration: he suffered from emphysema, spinal and neck pain, and required an escort to move around the prison due to the animosity of other prisoners towards him because of the nature of his offending. The Court accepted that these circumstances, taken together, warranted the exercise of the residual discretion to dismiss the Crown appeal.

The Court emphasised that the purposes of denouncing the respondent's conduct and providing guidance to sentencing judges were adequately served by the reasons themselves and by the indicative sentence identified in those reasons, without the need to extend the respondent's term of imprisonment.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Crown appeal can succeed in establishing manifest inadequacy and yet still be dismissed through the exercise of residual discretion, where compelling circumstances relating to the offender's condition so warrant.
  • Deterioration in an offender's physical and mental health during incarceration, particularly when combined with the hardships of protective custody, can constitute a sufficient basis to exercise residual discretion against resentencing even where the original sentence was manifestly inadequate.
  • Delay in prosecution does not automatically favour an offender in a Crown appeal: where that delay provided the offender with an opportunity to commit further serious offences, the Court found delay carried no mitigating weight and did not support the adequacy of the original sentence.
  • Under the totality principle, a sentencing court must ensure that concurrent or partially concurrent sentences, when viewed in aggregate with pre-existing sentences, adequately reflect the full extent of an offender's criminal conduct across all offending episodes.
  • In dismissing the Crown appeal, the Court made clear that the indicative sentence set out in its reasons, and the denunciatory force of those reasons, can themselves serve the purposes of a Crown appeal without requiring a formal increase in sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 33B(1), 61M(1), 61M(2), 61O(1), 66A, 66C(2)
- Criminal Appeal Act 1912 (NSW): ss 5D, 5D(1)

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- DPP v Karazisis [2010] VSCA 350; 31 VR 634
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Munda v Western Australia [2013] HCA 38
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Holyoak (1995) 82 A Crim R 502
- R v MSK [2006] NSWCCA 381; 167 A Crim R 159