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16
Court of Criminal Appeal 30 July 2014

R v BA

[2014] NSWCCA 148

Sexual offences
CRIME SENTENCE CROWN APPEAL CUNNILINGUS WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v BA [2014] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 30 July 2014
Judges: Gleeson JA, Fullerton J, McCallum J

Background

Following a jury trial, the respondent was convicted of seven sexual offences against his de facto partner's six-year-old daughter. The offences occurred over approximately twenty minutes on a single day in August 2012, while the child's mother had briefly left the home. The respondent held a position akin to a stepfather, being the father of the child's younger sibling and having lived with the family for around two years.

The offences ranged in seriousness from aggravated indecent assault (kissing the child on the mouth) to the most serious count: aggravated sexual intercourse with a child under ten years, constituted by cunnilingus. The sentencing judge imposed a total sentence with a non-parole period of only 12 months and a balance of term of 18 months.

The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate. At the time of the appeal, the respondent's release on parole was imminent, and he had filed affidavit evidence describing particular difficulties experienced in custody due to chronic depression, anxiety, and agoraphobia.

  • Whether the sentences imposed, particularly for the most serious count of aggravated sexual intercourse with a child under ten (count 5), were manifestly inadequate
  • Whether the Court should exercise its residual discretion to decline to intervene, given the respondent's imminent parole release and the actual distress and anxiety he experienced as a result of the Crown appeal
  • Whether actual (as opposed to presumed) distress and anxiety caused by a Crown appeal may be taken into account as a subjective mitigating factor on resentencing
  • Whether the respondent's prospects of rehabilitation could properly be assessed as good, in the absence of any acceptance of responsibility for the offending

Decision

The Court of Criminal Appeal allowed the Crown appeal, unanimously finding that the sentence imposed for count 5 was manifestly inadequate. The most serious offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. A non-parole period of only 12 months for that offence was irreconcilable with the gravity of the conduct, the absence of remorse, and sentencing patterns in comparable cases under section 66A(2) of the Crimes Act 1900.

The Court considered, but ultimately rejected, the respondent's argument that the residual discretion to decline intervention should be exercised in his favour. Two circumstances were raised: first, that the respondent's parole release was imminent; second, that he had suffered actual (not merely presumed) anxiety and distress in custody due to his mental health conditions. The Court acknowledged both as relevant considerations but found them insufficient, in combination, to justify declining to resentence.

On the distinction between actual and presumed distress, McCallum J confirmed the position from R v JW: section 68A of the Crimes (Appeal and Review) Act 2001 prevents any reduction in sentence based on the distress and anxiety that all respondents to Crown appeals are presumed to suffer, but it does not prevent the court from taking into account a particular offender's actual, established distress and anxiety as a subjective factor. In this case, the respondent's documented mental health conditions and the hardship of custody were accepted as genuine, and McCallum J noted that the sentence would have been more severe but for those findings.

The Court found the respondent's prospects of rehabilitation could not be described as good, given his complete denial of responsibility and a forensic assessment placing his risk of sexual reoffending in the mid range. Special circumstances justifying a departure from the standard non-parole period ratio were accepted, given the respondent's need for extended supervision on parole.

Orders Made

  • The Crown appeal was allowed.
  • The sentence for count 5 was varied to a term of imprisonment with a non-parole period of 4 years commencing 15 October 2013 and expiring 14 October 2017, and a balance of term of 2 years expiring 14 October 2019.
  • The parole order made at first instance was set aside.

Key Takeaways

  • A non-parole period of 12 months for aggravated sexual intercourse with a child under ten, an offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years, was found to be manifestly inadequate in circumstances involving breach of a position of trust, multiple offences, and an absence of remorse.
  • Under section 68A of the Crimes (Appeal and Review) Act 2001, sentencing courts must disregard the presumed distress and anxiety that arises from exposure to a Crown appeal, but may take into account distress and anxiety that an offender is found, on the evidence, to have actually experienced.
  • An offender's complete denial of responsibility does not automatically preclude findings about rehabilitation prospects, but in this case the absence of any acceptance of responsibility, combined with a forensic risk assessment placing the respondent in the mid range for sexual reoffending, meant good rehabilitation prospects could not be established.
  • The imminent release of a respondent on parole is a relevant factor when a court considers whether to exercise its residual discretion to decline to intervene on a Crown appeal, but it is not determinative and must be weighed against the seriousness of the sentencing error.
  • Sentencing comparisons with decided cases under section 66A(2) remain a legitimate, though limited, tool in assessing whether a sentence is manifestly inadequate for this category of offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12(2), 12(3), 54A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
- Essex v R [2013] NSWCCA
- GN v R [2012] NSWCCA 96
- Green v R; Quinn v R [2011] HCA 49; 242 CLR 462
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- JL v R [2014] NSWCCA 130
- JRM v R [2012] NSWCCA 112
- Kertai v R [2013] NSWCCA 252
- Leslie v R [2013] NSWCCA 48
- PK v R [2012] NSWCCA 263
- Pulitano v R [2010] NSWCCA 45
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v Gavill [2014] NSWCCA 56
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- RJT v R [2012] NSWCCA 280; 218 A Crim R 490