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Court of Criminal Appeal 21 October 2014

CS v R

[2014] NSWCCA 229

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SENTENCE CUSTODY

Citation: CS v R [2014] NSWCCA 229
Court: Court of Criminal Appeal, New South Wales
Date: 21 October 2014
Judges: Beazley P, R A Hulme J, Garling J

Background

The applicant was sentenced in the District Court at Wollongong to a total term of 10 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months, for five counts of aggravated sexual intercourse with a child aged between 10 and 16 and one count of aggravated act of indecency with a child under 16. The offences occurred over a period of approximately four and a half years, beginning when the complainant was 10 years old.

The offences took place in a domestic setting. The applicant had become closely integrated into the complainant's family through a friendship formed while both families were living in Saudi Arabia. He later moved into the family home in New South Wales, where the offending occurred. The agreed facts described the charged conduct as representative of ongoing offending across the relevant period.

At sentence, the District Court accepted that the applicant was genuinely remorseful and had good prospects of rehabilitation. The offending was nonetheless characterised as a gross breach of trust involving substantial exploitation of the complainant's youth. The applicant sought leave to appeal his sentence on several grounds.

  • Whether the sentencing judge erred by failing to account for a brief period of pre-sentence custody, as required under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the finding of special circumstances was adequately reflected in the ratio between the non-parole period and the total sentence
  • Whether the sentencing judge impermissibly treated penile-vaginal intercourse as a more serious form of sexual intercourse, contrary to any established hierarchy of sexual acts
  • Whether the individual sentences for counts 3 and 6, and the overall sentence, were manifestly excessive

Decision

Pre-sentence custody: The Court found that the sentencing judge had, by oversight, failed to account for a two-day period of pre-sentence custody the applicant served following his arrest in Victoria before being extradited and released on bail in New South Wales. This was a legal error under s 47(3) of the Crimes (Sentencing Procedure) Act 1999. The Crown conceded the point, and the Court upheld this ground. The error did not render the sentence unlawful, but it was correctable on appeal.

Special circumstances: The sentencing judge found special circumstances and departed from the standard one-third ratio between the non-parole period and the head sentence. The Court held that, where special circumstances are found primarily to allow for accumulation of sentences, the overall sentence may not reflect the same proportional reduction as it would in a single-sentence case. Viewing the structure of the sentences as a whole, the Court was satisfied that the finding of special circumstances was not meaningless and that no error was established.

Hierarchy of sexual acts: The Court confirmed that there is no strict legal hierarchy among the forms of sexual intercourse for the purposes of the offence under s 66C(2) of the Crimes Act 1900. However, it is not impermissible for a sentencing judge to impose a heavier sentence to reflect the nature of the particular act and its surrounding circumstances. The sentencing judge's approach in imposing heavier terms for the penile-vaginal intercourse counts was held to be open on the facts.

Manifest excess: The Court acknowledged that the sentences for counts 3 and 6 and the overall term were heavy. It nonetheless declined to find that they were unreasonably so. The Court pointed to the sustained nature of the offending across more than four years, the complainant's age when the conduct began, the applicant's position of trust within the family, the absence of contraception, and the sentencing judge's finding that the complainant had been so conditioned by the applicant's conduct that she had become habituated to it.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • Commencement dates of each sentence quashed and replaced as follows:
  • Count 5: 23 February 2013
  • Count 1: 23 February 2014
  • Counts 2 and 3: 23 February 2015
  • Count 4: 23 February 2017
  • Count 6: 23 August 2017
  • The applicant to become eligible for parole upon expiry of the last non-parole period on 22 August 2020

Key Takeaways

  • A sentencing judge's failure to account for pre-sentence custody under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 constitutes legal error amenable to correction on appeal, even where the practical effect on the overall sentence is minor.
  • Where special circumstances are found primarily to facilitate accumulation of multiple sentences, the Court of Criminal Appeal confirmed that the ratio between non-parole and head sentence across the aggregate need not mirror the reduction that would apply to a single sentence.
  • No legal hierarchy exists among the various forms of sexual intercourse covered by s 66C(2) of the Crimes Act 1900, but a sentencing court may lawfully impose a heavier sentence that reflects the particular nature of the act and the circumstances surrounding it.
  • In assessing objective gravity, sustained and habituated offending against a young child in a position of domestic trust, combined with the absence of contraception and deliberate grooming, can properly support sentences at the higher end of the range without constituting manifest excess.
  • Upholding the substantive sentences, the Court of Criminal Appeal treated the overall sentencing structure as internally consistent and not plainly unjust, even where individual sentences were conceded to be heavy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 47(3)

Cases:
- Achurch v The Queen [2014] HCA 10; 306 ALR 566
- BT v R [2012] NSWCCA 276
- Caristo v R [2011] NSWCCA 7
- CM v R [2013] NSWCCA 341
- Collier v R [2012] NSWCCA 213
- Fina'i v R [2006] NSWCCA 134
- Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151
- Ibbs v R [1987] 163 CLR 447
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
- R v KNL [2005] NSWCCA 260; 154 A Crim R 268
- R v PGM [2008] NSWCCA 172; 187 A Crim R 152
- SS v R; JC v R [2009] NSWCCA 114