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14
Court of Criminal Appeal 19 March 2014

R v CMB

[2014] NSWCCA 5

Sexual offencesDomestic & family violence
CRIMINAL LAW CHILD SEXUAL ASSAULT OFFENCES AGGRAVATED INDECENT ASSAULT AGGRAVATED SEXUAL ASSAULT TRIAL DIVERSION OF OFFENDERS ACT 1985 SENTENCE

Citation: R v CMB [2014] NSWCCA 5
Court: Court of Criminal Appeal, New South Wales
Date: 19 March 2014
Judges: Ward JA, Harrison J, R A Hulme J

Background

The respondent pleaded guilty to four counts of aggravated sexual assault and one count of aggravated indecent assault against his daughter, committed in 2005 and 2006 when she was aged 11 and 12. The offences carried maximum penalties of 20 years imprisonment (with a standard non-parole period of 10 years) for the aggravated sexual assault counts, and 7 years (with a standard non-parole period of 5 years) for the indecent assault count.

The offending came to light in 2011 when the victim, by then aged 17, reported the incidents to police. During the assessment process for entry into the Cedar Cottage Pre-Trial Diversion Program, the respondent voluntarily disclosed additional offences not covered by the original charges. Those disclosures led to a second set of charges, which formed part of the proceedings before the District Court.

The District Court sentenced the respondent to good behaviour bonds of 2 and 3 years, with conditions tied to his participation in the Cedar Cottage Program. The Director of Public Prosecutions declined to lodge a Crown appeal, but the Attorney General appealed the sentences as manifestly inadequate.

  • Whether the sentencing judge erred by taking into account regulations under the Pre-Trial Diversion of Offenders Act 1985 that had been repealed at the relevant time
  • Whether the sentencing judge erred by failing to have regard to errors made in originally referring the respondent to the Cedar Cottage Program
  • Whether the sentencing judge gave insufficient weight to the objective seriousness of the offences
  • Whether the sentences imposed were manifestly inadequate
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene despite finding error in the sentencing below

Decision

The Court of Criminal Appeal found that Ellis DCJ erred in several respects. The sentencing judge had incorrectly considered how further disclosures would have been treated under regulations that were no longer in force, and had failed to account for the procedural errors that led to the respondent's referral to the Cedar Cottage Program in the first place. The Court found that these errors, combined with an inadequate treatment of the objective gravity of the offending, caused the sentencing discretion to miscarry.

The offences were characterised as serious: the victim was a young child assaulted repeatedly by her own father over a period of years. The victim had suffered significant psychological harm, including a suicide attempt, and had severed contact with her parents entirely. The Court found that the non-custodial sentences imposed bore no proportionate relationship to the gravity of the conduct.

The respondent argued that the Court should exercise its residual discretion not to intervene, pointing to factors including his rehabilitative progress within the Cedar Cottage Program, the circumstances of his disclosures, and the disruption that resentencing would cause. The Court acknowledged these as relevant considerations but held that the respondent had not discharged the onus of establishing that the discretion should be exercised in his favour. The sentencing discretion had wholly miscarried in a way that required correction.

The Court also noted that the Cedar Cottage Program had by this time been dismantled, limiting the precedential significance of aspects of the decision relating to that Program's operation.

Orders Made

  • The appeal was allowed.
  • The sentences imposed by Ellis DCJ on 4 April 2013 were quashed.
  • In substitution, the respondent was sentenced to an aggregate term of 5 years and 6 months, commencing 19 March 2014 and expiring 18 September 2019, with a non-parole period of 3 years expiring 18 March 2017.
  • The first date upon which the respondent becomes eligible for release on parole is 19 March 2017.

Key Takeaways

  • Good behaviour bonds imposed for multiple aggravated child sexual assault offences were held to be manifestly inadequate where the objective seriousness of the offending was not properly reflected in the sentence.
  • A sentencing judge's reliance on repealed regulations, and failure to account for procedural errors in the referral process, constituted identifiable errors capable of vitiating the exercise of sentencing discretion.
  • Where a Crown appeal establishes sentencing error, the onus lies on the respondent to establish that the court's residual discretion not to intervene should be exercised in their favour. Rehabilitative progress, while relevant, was insufficient here to outweigh the seriousness of the offending.
  • The Court of Criminal Appeal confirmed that the repeal of the Pre-Trial Diversion of Offenders Regulation 2005 on 1 September 2012 did not extinguish the Program's availability for charges laid before that date, by operation of s 30 of the Interpretation Act 1987.
  • Disclosures made during a rehabilitation program assessment do not, without more, insulate an offender from a custodial sentence where the gravity of the underlying conduct demands one.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 344
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Pre-Trial Diversion of Offenders Act 1985 (NSW), ss 10, 14, 23, 24, 25, 28, 30
- Pre-Trial Diversion of Offenders Regulation 2005 (NSW)
- Interpretation Act 1987 (NSW), s 30
- Subordinate Legislation Act 1989 (NSW), ss 10, 11

Cases:
- Baxter v R [2007] NSWCCA 237
- Dinsdale v The Queen [2000] HCA 54
- DPP v De La Rosa [2010] NSWCCA 194
- Green and Quinn v The Queen [2011] HCA 49
- Lowndes v The Queen [1999] HCA 29
- NT v Regina [2007] NSWCCA 143
- Wong and Leung v The Queen [2001] HCA 64
- R v ABS [2005] NSWCCA 255
- R v Allpass (1993) 72 A Crim R 561
- R v BJW [2000] NSWCCA 60
- R v CJP [2004] NSWCCA 188
- R v Ellis (1986) 6 NSWLR 603
- R v Hernando [2002] NSWCCA 489
- R v Holder and Johnston [1983] 3 NSWLR 245