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34
Court of Criminal Appeal 17 September 2014

MLP v R

[2014] NSWCCA 183

Sexual offences
CRIMINAL LAW SENTENCE APPELLANT SENTENCED TO A NON SENTENCE PARTICULAR OFFENCES SENTENCE

Citation: MLP v R [2014] NSWCCA 183
Court: Court of Criminal Appeal, NSW
Date: 17 September 2014
Judges: Macfarlan JA, Adamson J, Bellew J (joint decision by Bellew J, with Macfarlan JA and Adamson J agreeing)

Background

The appellant was convicted by jury of sexual intercourse with a person under 10 years of age, contrary to s 66A of the Crimes Act 1900. The victim was his nine-year-old daughter. The offending occurred during an access visit while the couple were separated, in a campervan near Forster, with two other young children present at the time.

The appellant was originally sentenced in 2005 by Judge Garling in the District Court to a non-parole period of 12 years with a four-year additional term. On appeal in 2006, the Court of Criminal Appeal confirmed the 16-year head sentence but reduced the non-parole period to 11 years.

Following the High Court's decision in Muldrock v R (2011), the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 on the basis that both sentencing courts had applied an incorrect approach by treating the standard non-parole period as having primary or determinative significance. The Attorney-General conceded error. The matter was referred to the Court of Criminal Appeal to determine whether some other sentence was warranted.

  • Whether the original sentence was infected by Muldrock error (conceded by the Crown)
  • Whether, following that error being established, some other sentence was warranted under s 6(3) of the Criminal Appeal Act 1912
  • How to assess the objective seriousness of the offending, taking into account its isolated nature, short duration, and the relationship between offender and victim
  • The weight to be given to the appellant's personal circumstances in custody, including health issues and reduced family contact
  • The proper use of sentencing statistics and comparative cases in determining whether the sentence was unduly harsh

Decision

The sole question before the court was whether some other sentence was warranted in law. The court confirmed that this threshold does not require a finding of manifest excess; however, after reviewing all relevant circumstances, the court was not persuaded that a lesser sentence was justified.

On the objective seriousness of the offending, Bellew J acknowledged that the offending was isolated and of short duration, and accepted these were relevant to moral culpability. However, his Honour emphasised that duration alone is not the measure of seriousness, and that courts must bear in mind the potentially severe long-term psychological effects on child victims of this type of offending. The offence involved full penile penetration, a serious breach of parental trust, and occurred in the presence of the appellant's other children.

Regarding the appellant's personal circumstances, the court accepted evidence about the difficulties of serving time in protective custody, health conditions including Hepatitis C and depression, and reduced family contact following his mother's death. The Crown's submission that these were not materially different from the situation of most people in custody was noted. The court considered these matters but did not find they warranted a reduction in sentence.

On sentencing statistics and comparative cases, Bellew J reviewed several comparable s 66A cases but concluded they were materially distinguishable on their facts. His Honour stressed that sentencing is not directed at achieving numerical equivalence, and that care must be taken when drawing comparisons between cases. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that establishing Muldrock error does not automatically lead to a reduced sentence; the court must still determine whether some other sentence is actually warranted on the facts.
  • The duration of an offence is not the primary measure of its objective seriousness, particularly in child sexual assault matters where long-term psychological harm to the victim is a significant sentencing consideration.
  • A conviction under s 66A, where the offender is the victim's parent, involves a substantial breach of trust that carries significant weight in the sentencing exercise.
  • Sentencing statistics and comparative cases serve as a useful reference point, but the court reaffirmed that sentencing must be determined according to principle rather than numerical equivalence, and differences between cases must be carefully identified before any comparison is drawn.
  • Personal hardships experienced in custody, such as health conditions and reduced family contact, may be relevant mitigating factors, but their weight depends on whether they are materially different from the ordinary incidents of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Appeal and Review) Act 2001 (NSW), s 78

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390
- Baxter v R [2007] NSWCCA 237
- Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- BP v R [2010] NSWCCA 159
- R v MAK; R v MSK [2006] NSWCCA 381
- RLS v R [2012] NSWCCA 236
- Jones v R [2012] NSWCCA 262
- Jolly v R [2013] NSWCCA 76
- R v Gavel [2014] NSWCCA 56
- Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190
- Alseedi v R [2009] NSWCCA 185
- Ali v R [2010] NSWCCA 35
- RR v R [2011] NSWCCA 235
- R v Nguyen [2013] NSWCCA 195
- R v Kier [2004] NSWCCA 106
- R v Wickham [2004] NSWCCA 193