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211
Court of Criminal Appeal 5 December 2014

JM v R

[2014] NSWCCA 297

Also reported as (2014) 246 A Crim R 528
Sexual offences
CRIMINAL LAW APPEAL SENTENCE CHILD SEXUAL ASSAULT OFFENCES CHILD ABUSE MATERIAL OFFENCES SENTENCE

Citation: JM v R [2014] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 5 December 2014
Judge(s): Hoeben CJ at CL, R A Hulme J, Adamson J

Background

The applicant pleaded guilty in the District Court at Parramatta to nine offences involving child sexual assault, using children to produce child abuse material, and possessing child abuse material. A further nine offences were taken into account on a Form 1 (a procedure by which additional admitted offences are considered at sentencing without separate conviction). The offences were committed against four children, including three stepchildren aged 15, 11 and 9, and his own two-year-old daughter.

Police executed a search warrant at the family home in October 2010 and seized digital devices. Examination of those devices revealed videos and photographs of the offences. A separate hard drive later retrieved from the applicant's workplace contained thousands of additional child abuse images and videos.

Judge Bennett SC sentenced the applicant to an aggregate term of 18 years' imprisonment with a non-parole period of 13 years, commencing 12 May 2011. The applicant sought leave to appeal on several grounds, contending the sentence was manifestly excessive and raising additional complaints about the conduct of the proceedings.

  • Whether the applicant's legal representatives had acted improperly or incompetently in the sentencing proceedings
  • Whether the sentencing judge had unjustifiably reduced the guilty plea discount for some offences
  • Whether the sentencing judge erred by failing to precisely quantify plea discounts
  • Whether the applicant's claimed status as a protective custody prisoner warranted a reduction in sentence
  • Whether the aggregate sentence of 18 years was manifestly excessive
  • Whether the sentencing judge's approach to specifying indicative sentences (including non-parole periods and commencement dates) was procedurally appropriate

Decision

The Court rejected the criticisms directed at the applicant's legal representatives, finding those complaints were not made out on the evidence. On the question of plea discounts, R A Hulme J accepted that there had been an unjustified reduction in the discount applied to some guilty pleas, but found this had no material effect on the aggregate sentence ultimately imposed.

The Court confirmed there is no requirement under section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to specify non-parole periods or commencement dates for indicative sentences, except where a standard non-parole period is prescribed. The sentencing judge's decision to specify both for every indicative sentence was described as unnecessarily detailed and as having generated a range of irrelevant arguments on appeal. The Court also confirmed there is no requirement for a sentencing judge to state plea discounts in precise numerical terms.

The applicant's claim to have been held in protective custody, which would ordinarily attract a sentencing concession due to the harsher conditions of imprisonment such classification entails, was not established on the evidence before the Court. The aggregate sentence itself was found to be within the legitimate exercise of the sentencing discretion. R A Hulme J noted that the eight additional counts and extensive child abuse material on the second hard drive resulted in only five additional years beyond the indicative sentence for the first offence, reflecting a proper application of the totality principle.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court announcing indicative sentences for an aggregate sentence is not required to specify non-parole periods or commencement dates for each indicative sentence unless a standard non-parole period applies to that offence. Doing so unnecessarily risks generating irrelevant appellate arguments.
  • A finding that some plea discounts were unjustifiably reduced will not result in appellate intervention unless the error had a material effect on the aggregate sentence imposed.
  • No error is established merely because a sentencing judge did not state guilty plea discounts in precise, quantified terms.
  • Unsubstantiated claims to protective custody status will not ground a sentencing reduction; the applicant must establish the claim on the evidence.
  • In dismissing the appeal, the Court reaffirmed the longstanding principle that sexual offences against young children attract sentences of the utmost seriousness, with general deterrence carrying particular weight where the offender held a position of trust in relation to the victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2), 91G(1)(a), 91H(2), 91K(3), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b), Pt 3 Div 3
- Crimes (Sentencing Procedure) Amendment Act 2010

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Kentwell v The Queen [2014] HCA 37
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- R v ABS [2005] NSWCCA 255
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- AB v R [2014] NSWCCA 31
- BJS v R [2013] NSWCCA 123
- FP v R [2012] NSWCCA 182; 224 A Crim R 82
- Various other NSW Court of Criminal Appeal decisions cited in the judgment