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Court of Criminal Appeal 4 March 2014

AB v R

[2014] NSWCCA 31

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE "GUARDED" PROSPECTS OF REHABILITATION AGGREGATE NON LEAVE TO APPEAL REFUSED

Citation: AB v R [2014] NSWCCA 31
Court: Court of Criminal Appeal, NSW
Date: 4 March 2014
Judges: Beazley P, R A Hulme J, Schmidt J

Background

The applicant (referred to by pseudonym to protect the identity of his victims) pleaded guilty in the District Court at Sydney to 15 sexual assault and child pornography offences. The victims included his daughters, friends of his daughters, and his wife. The offending spanned many years and included sexual intercourse with a child under 10, aggravated indecent assault, incest, incitement of children to commit acts of indecency, and possession of a vast quantity of child pornographic material discovered on arrest in June 2010.

Judge Arnott SC in the District Court imposed an aggregate sentence of 17 years with a non-parole period of 14 years, backdated to the applicant's arrest. The judge also indicated the individual sentences he would have imposed for each offence, had he not fixed a single aggregate sentence. A further 12 offences were taken into account on Form 1 documents at the time of sentencing.

The applicant sought leave to appeal, contending that the sentence was excessive on several grounds, including that insufficient weight was given to his guilty pleas, his remorse, his prospects of rehabilitation, and his advanced age.

  • Whether the sentencing judge erred in finding that the guilty pleas did not necessarily reflect genuine remorse
  • Whether the assessment of the applicant's prospects of rehabilitation as "guarded" was infected by legal error
  • Whether the applicant's advanced age warranted a lesser sentence
  • Whether the finding of "special circumstances" for a single sentence should have been applied to reduce the overall non-parole period
  • Whether errors in the commencement dates specified for individual indicative sentences, and an error in stating the maximum penalty for one offence, required correction or resentencing

Decision

The Court of Criminal Appeal refused leave to appeal on all grounds, with R A Hulme J (Beazley P and Schmidt J agreeing) delivering the principal reasons.

On remorse and rehabilitation, the Court confirmed that a guilty plea does not automatically establish genuine remorse; a sentencing judge is entitled to look beyond the plea itself. The sentencing judge had found the applicant's expressions of remorse to be less than convincing given the circumstances of the offending, including the nature and quantity of material in his possession. The Court found no error in that assessment and considered it was not open to conclude otherwise. The applicant's entrenched interest in child sexual abuse provided ample basis for the guarded view taken of his rehabilitation prospects, and specific deterrence remained a significant sentencing consideration.

The Court held that the applicant's advanced age (he was in his mid-sixties at sentence) did not, in the circumstances, warrant a lesser sentence. The aggregate non-parole period of 14 years was found to properly reflect the criminality of the offending taken as a whole. A finding of "special circumstances" in relation to one indicative sentence did not require the overall non-parole period for the aggregate sentence to be adjusted, as the aggregate non-parole period is assessed by reference to the totality of the offending.

Two errors were identified by the Crown and raised as additional grounds shortly before the hearing. First, there was a one-year gap between the conclusion of some indicative sentences and the commencement of the next, arising from the judge unnecessarily specifying commencement dates for each indicative sentence. The Court held this was immaterial: the judge had clearly applied the totality principle and fixed the appropriate aggregate sentence; the dates were otiose and could be ignored. Second, the sentencing judge had incorrectly stated the maximum penalty for two offences as 7 years when it was 2 years. Given the sentences indicated for those offences were only 6 months, and the error had no material bearing on the aggregate sentence, no resentencing was required.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • A guilty plea is not, of itself, evidence of remorse; sentencing judges retain the discretion to assess whether genuine remorse is established on all the circumstances, and appellate intervention on that assessment is narrowly confined.
  • The Court of Criminal Appeal confirmed that prospects of rehabilitation may properly be assessed as "guarded" where the nature and extent of the offending discloses entrenched attitudes or behaviour, even where the offender has pleaded guilty.
  • Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances in relation to one indicative sentence does not automatically flow through to alter the overall non-parole period; the aggregate non-parole period is assessed by reference to the totality of the criminality involved.
  • Specifying commencement dates for individual indicative sentences within an aggregate sentence is unnecessary and contrary to the purpose of the aggregate sentencing regime; such dates are otiose and technical errors in them will not constitute grounds for resentencing where the aggregate sentence itself is sound.
  • No error was established in the treatment of the applicant's advanced age; advanced age does not, without more, require a reduced sentence where the gravity and duration of the offending justify the penalty imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 54B(4)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Houri v R [2013] NSWCCA 279
- Caristo v R [2011] NSWCCA 7
- R v Baker [2000] NSWCCA 85
- R v Holyoak (1995) 82 A Crim R 502
- R v Sutton [2004] NSWCCA 225