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18
Court of Criminal Appeal 29 September 2014

R v MJB

[2014] NSWCCA 195

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SENTENCE MANIFESTLY INADEQUATE AGGREGATE SENTENCE IMPOSED ABUSE OF TRUST, POWER AND FAMILIAL TIES RESIDUAL SENTENCE NOT EXERCISED

Citation: R v MJB [2014] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 29 September 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J (all agreeing)

Background

The respondent was convicted after trial and by guilty plea of 19 child sexual offences involving four child victims aged between eight and twelve years. The offences involved three girls who were family friends and the daughter of his girlfriend, as well as his niece. The offending spanned multiple occasions and included possessing child abuse material, using children for pornographic purposes, and aggravated indecent assault.

The respondent had access to the children through familial ties and close friendship with their parents, and the offending involved a significant breach of trust. He was arrested in January 2011, and the charges were prosecuted on two separate indictments. Flannery DCJ sentenced him on 28 March 2014 to an aggregate sentence of five years and six months with a non-parole period of three years and ten months.

The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the single ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of five years and six months was manifestly inadequate for 19 child sexual offences against four victims across multiple occasions and two indictments.
  • Whether the indicative sentences, as required under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), implied an impermissibly high degree of concurrency that failed to reflect the true criminality of the overall offending.
  • Whether the sentencing judge's finding of special circumstances justifying a departure from the standard non-parole period ratio was properly made out.

Decision

The Court of Criminal Appeal, in reasons delivered by Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed), upheld the appeal. The Court found that the aggregate sentence, when measured against the indicative sentences for each count, implied a very substantial degree of concurrency between offences involving different children committed over an extended period and prosecuted on two separate indictments. That degree of concurrency failed to adequately reflect the totality of the respondent's criminality.

The Court observed that the offending was particularly serious given the respondent's position of trust and the familial and quasi-familial relationships he exploited to gain access to the children. Offences committed by adults against children to whom they have access through family ties or parental friendships were described as especially heinous because they betray the trust children are reasonably entitled to place in those who should protect them.

The Court also concluded there was no proper basis for the sentencing judge's finding of special circumstances, which had allowed a departure from the standard 75 per cent ratio between the total term and non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Court noted that the purposes of sentencing under s 3A, including punishment and the protection of victims and potential victims, required correction of the impression created by the original sentence. The residual discretion not to intervene was not exercised.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Flannery DCJ on 28 March 2014 quashed and replaced with:
  • An aggregate sentence of nine years with a non-parole period of six years and nine months.
  • The earliest date of eligibility for release noted as 17 October 2017.

Key Takeaways

  • An aggregate sentence that implies substantial concurrency between indicative sentences for offences involving multiple victims over an extended period may be found manifestly inadequate, even where the individual indicative sentences appear within range.
  • The Court of Criminal Appeal confirmed that the deterrent function of sentencing is not measured solely by its effect on potential offenders; maintaining public confidence in the administration of justice is also a recognised purpose.
  • Where a sentencing court imposes an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, the indicative sentences must together reflect the true gravity of the overall criminality, and a pattern of implicit concurrency across separate indictments will attract scrutiny on appeal.
  • No proper basis was established for a special circumstances finding simply because an aggregate sentence is imposed; the Court re-sentenced to conform with the standard statutory ratio of 75 per cent non-parole period to total term.
  • Offending that exploits familial ties or close family friendships to access child victims is treated as a serious aggravating feature, reflecting the betrayal of trust owed to vulnerable children by those in a position of care or authority.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 91G, 91H
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 29, 30A, 44, 53, 53A

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Carlton v R [2014] NSWCCA 14
- Dinsdale v R (2000) 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen (1977) 137 CLR 293
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Kaminic v R [2014] NSWCCA 116
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
- R v Harris [2007] NSWCCA 130; 171 A Crim R 267
- R v Loveridge [2014] NSWCCA 120
- R v Nykolyn [2012] NSWCCA 219
- R v Previtera (1997) 94 A Crim R 76
- R v Slack [2004] NSWCCA 128
- R v Wheeler [2000] NSWCCA 34
- R v Wilson [2005] NSWCCA 219
- Reeves v The Queen [2013] HCA 57