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10
Court of Criminal Appeal 18 July 2014

JL v R

[2014] NSWCCA 130

Sexual offences
CRIME SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: JL v R [2014] NSWCCA 130
Court: Court of Criminal Appeal, New South Wales
Date: 18 July 2014
Judges: Hoeben CJ at CL, Harrison J, McCallum J (judgment by McCallum J)

Background

The applicant pleaded guilty in the District Court to 21 sexual offences committed against his own daughter over approximately four years, when the victim was aged between seven and eleven. A further seven admitted offences were taken into account on a Form 1, a procedural mechanism that allows a court to consider additional offences at sentencing without recording separate convictions for them. The offences ranged from the most serious categories of sexual intercourse with a child under ten to pornography offences involving the applicant using his daughter for pornographic purposes, filming her, and secretly filming her friends.

The sentencing judge imposed an aggregate sentence rather than separate sentences for each offence, as permitted under section 53A of the Crimes (Sentencing Procedure) Act 1999. The total sentence was 18 years' imprisonment, comprising a non-parole period of 13 years and 6 months and a balance of term of 4 years and 6 months. The applicant then sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to give adequate weight to any assistance the applicant allegedly provided to authorities.
  • Whether the judge erred in his approach to evidence that the applicant had himself been sexually abused as a child.
  • Whether the aggregate sentence of 18 years was manifestly excessive.

Decision

McCallum J (with whom Hoeben CJ at CL and Harrison J agreed) reviewed each ground of appeal and found no error warranting appellate intervention.

On the question of assistance to authorities, the Court found no demonstrated error in the sentencing judge's treatment of that factor. The applicant had not established that any assistance he provided was of sufficient weight to have materially altered the sentencing outcome.

Regarding the applicant's own history of childhood sexual abuse, the Court acknowledged that such a history can be a relevant mitigating factor, but found that the sentencing judge had not erred in his assessment of the weight to be given to it in the circumstances of this case. The sheer gravity and duration of the offending, and the serious breach of parental trust involved, bore heavily on the overall sentence.

On manifest excess, the Court found the aggregate sentence was not outside the range available to the sentencing judge. McCallum J also took the opportunity to note that including the charge of anal intercourse against an eight-year-old on a Form 1 was, in her view, inappropriate, as that was a very serious discrete act warranting separate marking. However, the Court did not find that this feature produced an inadequate sentence in the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 18 years for 21 serious sexual offences committed against a young child over four years was within the range open to the sentencing judge and was not manifestly excessive.
  • A personal history of childhood sexual abuse may be a relevant mitigating factor in sentencing, but its weight is assessed in light of all the circumstances, and the sentencing court retains considerable discretion in how much weight to assign it.
  • The Court noted that including very serious offences on a Form 1 may be inappropriate, observing that the charge of anal intercourse committed against an eight-year-old was a serious discrete act that warranted being marked separately rather than absorbed into the Form 1 process, though this did not render the sentence inadequate on the facts.
  • Under section 33(2) of the Crimes (Sentencing Procedure) Act 1999, the power to take a further offence into account via a Form 1 is conditioned upon the court itself considering that course appropriate; the sentencing court is not bound by the prosecutor's decision to include a particular offence on the form.
  • Indicative sentences stated as part of an aggregate sentencing exercise under section 53A are not themselves amenable to appellate review, as confirmed by the Court by reference to prior authority.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including sections 61J, 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A, 66A(2), 66B, 66C(2), 91G(1)(a), 91K(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 33, 53A
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- AWF v R [2000] VSCA 172; (2000) 114 A Crim R 434
- C-P v R [2009] NSWCCA 291
- Henry v R [2009] NSWCCA 69
- Muldrock v R [2011] HCA 39
- R v AGR (NSWCCA, 24 July 1998, unreported)
- R v Brown [2012] NSWCCA 199
- R v Dunne [2003] VSCA 150
- R v Ellis (1986) 6 NSWLR 603
- R v Nykolyn [2012] NSWCCA 219
- R v Rich [2000] NSWCCA 448
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Zreika v R [2012] NSWCCA 44