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7
Court of Criminal Appeal 24 June 2014

R v RD

[2014] NSWCCA 103

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITH A CHILD APPEAL AGAINST SENTENCE CROWN APPEAL MANIFESTLY INADEQUATE

Citation: R v RD [2014] NSWCCA 103
Court: Court of Criminal Appeal, NSW
Date: 24 June 2014
Judge(s): Ward JA at [1]; Fullerton J at [2]; Hamill J at [5]

Background

The respondent, a young man aged between 18 and 21 at the time of the offences, had moved into the home of a family with whom he was close friends. He formed a purported "relationship" with the family's daughter, who was 11 when he moved in. He subsequently committed three counts of sexual intercourse with the child under section 66C of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 16 years imprisonment.

The offences occurred over a period from late 2010 to May 2012, when the victim was aged between 12 and 13. The third offence occurred on the night the victim went into premature labour. A caesarean section was performed the following morning, and the victim, aged 13, gave birth to a premature infant. The baby was subsequently placed in the care of the Department.

The respondent had pleaded guilty to the three charges under section 66C as alternative counts, with the Crown accepting those pleas in discharge of more serious aggravated sexual intercourse charges. In the District Court, Judge Berman SC imposed a total effective sentence of three years with a non-parole period of 18 months. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the total effective sentence of three years, and the individual sentences on each count, were manifestly inadequate for three offences of sexual intercourse with a child aged 10 to 14 years under section 66C of the Crimes Act 1900 (NSW)
  • Whether the degree of accumulation applied across the three sentences was insufficient
  • Whether the sentencing judge erred in the approach taken to a particular factual circumstance (the birth of the premature child)
  • Whether the sentencing judge erred in applying a 20 per cent discount for the utilitarian value of the guilty pleas
  • Whether, on re-sentence, residual discretion existed to decline to impose a heavier sentence notwithstanding any identified error

Decision

The Court of Criminal Appeal unanimously allowed the appeal, finding the total effective sentence of three years manifestly inadequate for three serious offences of child sexual abuse committed over an extended period against a vulnerable young victim within her own home. Hamill J (with whom Ward JA and Fullerton J agreed) identified that the original sentence was substantially below what the gravity of the offending warranted, having regard to the nature and number of offences, the age of the victim, the breach of trust involved, and the significant impact on the child.

Fullerton J added observations noting that the sentencing judge's description of the victim's giving birth by emergency caesarean section at age 13 as a "significant event" was, in her Honour's view, a serious understatement of the impact of the offending. Her Honour found those remarks difficult to understand, even allowing for the fact that the sentencing reasons were delivered ex tempore (that is, orally and without prior preparation). While it was not possible to say definitively that those remarks caused the error in sentencing, Fullerton J regarded both the sentence on Count 6 and the overall effective sentence as wholly inadequate.

The Court noted that specific errors raised by the Crown, including the alleged error in the discount for the late guilty plea, were not the subject of a separate ground of appeal and were therefore not formally determined as independent grounds. The manifest inadequacy ground was sufficient to engage the Court's power to re-sentence. On re-sentence, the Court imposed an aggregate sentence of five and a half years with a non-parole period of two years and nine months.

Hamill J also expressed concern that, because the new sentence exceeded three years, the respondent's release would now be a matter for the Parole Authority rather than automatic at the end of the non-parole period. His Honour noted that the respondent had been unable to access sex offender rehabilitation programmes in custody due to limited availability, and expressed the hope that any delay in accessing those programmes would not result in the respondent being held beyond his non-parole period.

Orders Made

  • The appeal was allowed.
  • The sentences imposed at first instance were quashed.
  • In their place, the respondent was sentenced to an aggregate term of five and a half years, comprising a non-parole period of two years and nine months commencing 25 November 2013 and expiring 24 August 2016, with a balance of term of two years and nine months expiring 24 May 2019.
  • The earliest date upon which the respondent is eligible for parole is 24 August 2016.

Key Takeaways

  • A total effective sentence of three years for three offences of sexual intercourse with a child aged 12 to 13, committed within the victim's home over approximately two years, was found to be manifestly inadequate by the Court of Criminal Appeal and was quashed.
  • Manifest inadequacy in the overall sentence was sufficient to engage the re-sentencing power, even where specific errors identified by the Crown (such as the discount for a late guilty plea) had not been separately pleaded as grounds of appeal, as confirmed by reference to Carroll v The Queen [2009] HCA 13.
  • Sentencing remarks that materially understate the gravity of harm suffered by a victim may attract appellate scrutiny, even where those remarks were delivered ex tempore.
  • On Crown appeal and re-sentence, the Court of Criminal Appeal noted that sentences imposed on re-sentence should not be taken as reflecting what should have been imposed at first instance, a point emphasised by Fullerton J to avoid any suggestion that the new sentences were a ceiling or benchmark for equivalent offending.
  • Where a re-sentence results in a term exceeding three years, the offender's release becomes a matter for the Parole Authority rather than an automatic entitlement at the end of the non-parole period, a consequence Hamill J identified as a practical concern where rehabilitation programmes are unavailable in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 66C
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 8, 50, 134-138
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases:
- Brown v R [2012] NSWCCA 199
- Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
- Carroll v The Queen [2009] HCA 13; 254 CLR 259
- Dinsdale v The Queen [2000] HCA 54
- Green & Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Johnson v The Queen [2004] HCA 15; 205 ALR 346
- Krotiris v R [2012] NSWCCA 28
- Lowndes v The Queen [1990] HCA 29
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Cramp [2004] NSWCCA 264
- R v Dib [2003] NSWCCA 117
- R v DW [2012] NSWCCA 66
- R v Hammoud (2000) 118 A Crim R 66
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Nykolyn [2012] NSWCCA 219
- R v Riddell [2000] NSWCCA 144
- R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383
- SHR v R [2014] NSWCCA 94
- Sullivan v R [2008] NSWCCA 296