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Court of Criminal Appeal 11 April 2013

Buksh v R

[2013] NSWCCA 60

Sexual offences
CRIMINAL LAW PLEA OF GUILTY 60 NSWLR 168

Citation: Buksh v R [2013] NSWCCA 60
Court: Court of Criminal Appeal, NSW
Date: 11 April 2013
Judges: Beazley P, Hall J, Campbell J (all agreeing)

Background

The applicant pleaded guilty in the District Court to three counts of aggravated sexual intercourse without consent, with two further offences of the same character taken into account on a Form 1. All five offences occurred on the same night in October 2010 and involved a single victim, a nineteen-year-old woman who was heavily intoxicated. The applicant had met the victim by chance at Parramatta station, followed her group through the evening, and diverted a taxi carrying her to his own apartment rather than to her home.

The sentencing judge imposed a total effective sentence of twelve years imprisonment with an effective non-parole period of eight years. The individual sentences were structured in partial accumulation across the three counts, with the applicant's earliest possible release on parole set for October 2018.

The applicant sought leave to appeal on the single ground that the sentencing judge had applied the discredited two-stage sentencing methodology discussed in R v Way [2004] NSWCCA 131, which the High Court had overruled in Muldrock v The Queen [2011] HCA 39.

  • Whether the sentencing judge erred by applying the two-stage process from R v Way (now overruled by Muldrock) when sentencing for standard non-parole period offences.
  • Whether, if such an error occurred, it caused the sentence actually imposed to miscarry.
  • Whether the overall sentence was manifestly excessive having regard to the objective seriousness of the offending and the applicant's subjective circumstances.

Decision

Campbell J (with whom Beazley P and Hall J agreed) accepted that Muldrock had overruled the two-stage approach in R v Way, under which sentencing judges would first identify a "midpoint" anchored to the standard non-parole period before adjusting for individual factors. After Muldrock, the standard non-parole period operates as a legislative guideline or reference point rather than a numerical starting point, and the court must give full, independent consideration to all relevant factors from the outset.

The Court found, however, that the sentencing judge's reasons did not reveal a Way-style error in practice. Campbell J examined the primary judge's reasoning in detail and concluded that, whatever methodological language was used, the sentence actually arrived at was within an appropriate range given the gravity of the offending.

The objective circumstances were described as serious on any view. The victim was rendered vulnerable by extreme intoxication that was obvious to the applicant. The criminal conduct was planned, at least opportunistically, from the moment the applicant followed the victim onto the train. The offences involved physical injury, deprivation of liberty, and multiple distinct acts of sexual violence. The Court distinguished the three counts from a single episode of criminality, noting that each offence involved separate conduct with no common element in the Pearce sense.

The applicant's subjective case included previous good character, a guilty plea, probable loss of his profession, and expressions of remorse. Campbell J acknowledged the weight of those factors but concluded, applying reasoning from cases including R v Nichols and R v Gorman, that the nature and seriousness of the crimes required condign punishment in the public interest. The sentencing judge's exercise of discretion was found not to have miscarried.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Following Muldrock v The Queen, the standard non-parole period functions as a legislative guidepost rather than a numerical starting point; a sentencing judge who mechanically identifies the midpoint as the commencement of reasoning applies an erroneous methodology.
  • No error was established on the facts of this case because the Court of Criminal Appeal found the primary judge's reasoning, read as a whole, did not produce a sentence outside the appropriate range despite the methodological concern raised.
  • Where multiple counts of aggravated sexual assault arise from the same night but involve separate acts with no common legal element, the principle in Pearce v The Queen requires each offence to be considered individually rather than treating the totality as a single episode of criminality.
  • Strong subjective factors, including prior good character, a guilty plea, and significant collateral consequences such as the loss of a profession, may be outweighed where the objective gravity of the offending is sufficiently serious.
  • In applying the totality principle, the effective sentence must represent a proper period of incarceration for all of the criminality involved, not merely a discounted global figure.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Application by the Attorney General [2004] NSWCCA 303; 61 NSWLR 305
- Butler v R [2012] NSWCCA 23
- R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
- R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Nichols (1991) 57 A Crim R 391
- R v Lancaster (1991) 58 A Crim R 290
- Pearce v The Queen (1998) 194 CLR 610