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Court of Criminal Appeal 15 May 2014

RJA v R

[2014] NSWCCA 89

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED STANDARD RANGE OF OBJECTIVE SERIOUSNESS APPEAL UPHELD AND NEW SENTENCES IMPOSED

Citation: RJA v R [2014] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 15 May 2014
Judges: R A Hulme J (principal judgment); Basten JA and Campbell J agreeing

Background

The appellant was convicted of three offences of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The offences involved the sexual abuse of his eight-year-old daughter on multiple occasions in 2004. The applicable maximum penalty was 25 years' imprisonment, with a standard non-parole period (SNPP) of 15 years prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant was originally sentenced in August 2006 to a total term of 21 years with a non-parole component of 16 years. A first appeal in 2008 reduced those sentences to a total term of 17 years with a non-parole component of 13 years. That earlier appeal predated the High Court's 2011 decision in Muldrock v The Queen, which clarified the correct approach to the SNPP provisions.

Following Muldrock, the appellant sought a review under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). A single judge referred the matter to the full Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

  • Whether the 2008 re-sentencing involved a Muldrock error by treating the SNPP as having determinative or primary significance, rather than as a guidepost.
  • Whether, if that error was established, fresh sentences of lesser length were warranted.
  • How to structure the individual sentences across three counts to properly reflect the criminality of each offence.

Decision

The Crown conceded that the 2008 re-sentencing had involved Muldrock error. The Court accepted that concession. Under the correct approach established in Muldrock, the SNPP remains an important guidepost when the offending falls within the mid-range of objective seriousness, but it must not be given determinative significance. Where it has been accorded that impermissible weight, a lesser sentence will generally be warranted.

The Court found that the offences fell within the mid-range of objective seriousness. The sentencing judge had found limited mitigating factors: the appellant had prior good character (aside from the offending), but showed no contrition, gave no evidence, and had engaged in similar conduct on approximately 20 to 30 additional occasions. The Court observed that good character carries less weight where there has been sustained offending over a period of time.

R A Hulme J also addressed a structural problem with both the original and 2008 sentences: the sentence for count 3 was entirely subsumed within those for the other counts, failing to reflect the additional criminality of that offence. The re-sentencing restructured the cumulative sentences to correct that deficiency. The Court also found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, adjusting the non-parole and parole proportions on the final count to achieve a four-year parole period overall.

The result was a total effective sentence of 15 years' imprisonment with a non-parole component of 11 years, reduced from the 17-year total with a 13-year non-parole period imposed in 2008.

Orders Made

  • Appeal allowed.
  • Sentences imposed by the Court of Criminal Appeal on 10 June 2008 quashed.
  • Appellant re-sentenced as follows:
  • Count 3: 6 years total (non-parole 4 years 6 months, balance 1 year 6 months), dating from 18 August 2006; non-parole expired 17 February 2011, total term expired 17 August 2012.
  • Count 4: 10 years total (non-parole 7 years 6 months, balance 2 years 6 months), dating from 18 August 2007; non-parole expires 17 February 2015, total term expires 17 August 2017.
  • Count 1: 13 years total (non-parole 9 years, balance 4 years), dating from 18 August 2008; eligible for parole 17 August 2017, total term expires 17 August 2021.

Key Takeaways

  • Muldrock error, where a sentencing court treated the SNPP as having determinative or primary significance rather than as a guidepost, is grounds for resentencing, and courts applying the correct approach will ordinarily impose lesser sentences as a result.
  • Where offending falls in the mid-range of objective seriousness, the SNPP retains significance as a guidepost even under the Muldrock framework; it does not become irrelevant.
  • A sentence structure in which one count is entirely subsumed within concurrent sentences for other counts fails to properly reflect the criminality of the subsumed offence, and restructuring may be required on resentencing.
  • Good character as a mitigating factor carries diminished weight where an offender has engaged in sustained offending over a period of time, rather than isolated conduct.
  • The Court of Criminal Appeal confirmed that a s 78 referral under the Crimes (Appeal and Review) Act 2001, following a change in sentencing principle established by higher authority, provides a pathway to correct Muldrock errors even where the original sentence was already the subject of a prior appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- RJA v R [2008] NSWCCA 137; 185 A Crim R 178
- Ryan v R [2001] HCA 21; 206 CLR 267
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- AB v R [2013] NSWCCA 273
- Filippou v R [2013] NSWCCA 92
- Koh v R [2013] NSWCCA 287
- R v Nguyen [2013] NSWCCA 195
- RS v R [2013] NSWCCA 227
- Dousha v R [2008] NSWCCA 263
- R v PGM [2008] NSWCCA 172; 187 A Crim R 152