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Court of Criminal Appeal 1 December 2014

FB v R

[2014] NSWCCA 282

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE APPEAL FOLLOWING INCREASE OF SENTENCE NATURE OF APPEAL

Citation: FB v R [2014] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 1 December 2014
Judge(s): Leeming JA, Adams J, Fullerton J

Background

The appellant, a school principal, was convicted of aggravated sexual assault against a 14-year-old student in his care, committed in August 2006. He was sentenced to six years and six months imprisonment with a four-year non-parole period. At the time of that sentence, he was already serving a separate sentence for five sexual offences committed against a 16-year-old student in December 2007.

The Director of Public Prosecutions appealed against the sentences for those later offences on the ground of manifest inadequacy. The Court of Criminal Appeal allowed that appeal and substituted a significantly increased sentence of 10 years imprisonment with a six-year non-parole period: FB v R; R v FB [2011] NSWCCA 217.

The appellant then sought a statutory review under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), which was referred to the Court of Criminal Appeal to determine whether the substituted sentence was affected by what is known as "Muldrock error." The Crown conceded that error had occurred but submitted that no lesser sentence was warranted.

  • Whether the sentence substituted by the Court of Criminal Appeal was affected by Muldrock error in the application of the standard non-parole period provisions.
  • Whether, error being conceded, a lesser sentence than that imposed by the Court of Criminal Appeal was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • What procedural approach applies when a Muldrock review concerns a sentence that was itself the product of a successful Crown appeal, rather than a sentence imposed at first instance.

Decision

On the procedural question, Adams J followed the majority decision in Louizos v R [2014] NSWCCA 242, which held that the review process under ss 78 and 79(1)(b) of the Crimes (Appeal and Review) Act 2001 creates a "new appeal" by the offender against the sentence under review, not a rehearing of the Crown appeal. The appellant is treated as having appealed under s 51C of the Criminal Appeal Act 1912 and may rely on grounds beyond the Muldrock ground. Adams J acknowledged Fullerton J's dissent in Louizos as persuasive but declined to depart from the majority view, noting that a court of five judges would be required to revisit it.

On the substantive question, the Crown's concession of Muldrock error meant the Court proceeded directly to whether a lesser sentence was warranted. Adams J considered the objective seriousness of the offending. The assault involved drugging the victim, penile penetration while she screamed for him to stop, a significant breach of trust as her headmaster, and the victim's age of 14. These features, combined with the subsequent offending against another student, made the original District Court sentence manifestly inadequate, as the Court of Criminal Appeal had correctly found in 2011.

Adams J also weighed the subjective features, including the appellant's severe depressive illness, hardship in prison, and the loss of his career. These were considered but did not displace the level of objective seriousness. The appellant's subsequent offending demonstrated that his remorse, to whatever extent it existed, had not restrained his behaviour, which increased the significance of personal deterrence as a sentencing consideration.

The Court concluded that the sentence substituted by the Court of Criminal Appeal in 2011, notwithstanding the Muldrock error in the methodology used to reach it, was not excessive. No lesser sentence was warranted. The appeal was dismissed.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • A Muldrock review under ss 78 and 79(1)(b) of the Crimes (Appeal and Review) Act 2001 constitutes a new appeal by the offender against the sentence under review, not a rehearing of the original Crown appeal, consistent with the majority in Louizos v R [2014] NSWCCA 242.
  • Conceding Muldrock error does not automatically result in a reduced sentence. The relevant question under s 6(3) of the Criminal Appeal Act 1912 remains whether any lesser sentence is warranted in light of all the circumstances.
  • Where the Court of Criminal Appeal correctly identified manifest inadequacy in a first-instance sentence, and the substituted sentence appropriately reflects the objective seriousness and the offender's subjective features, the substituted sentence will be maintained even where the methodology contained Muldrock error.
  • Subsequent offending after the index offence is a relevant sentencing consideration, particularly in assessing the significance of personal deterrence and the weight to be given to remorse.
  • A majority decision of the Court of Criminal Appeal will ordinarily be followed in subsequent proceedings before a bench of three judges; departure requires a court of five judges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2), Division 1A of Part 4
- Criminal Appeal Act 1912 (NSW), ss 6(3), 51C

Cases:
- FB v R; R v FB [2011] NSWCCA 217
- Louizos v R [2014] NSWCCA 242
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168