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9
Court of Criminal Appeal 22 May 2015

RL v R

[2015] NSWCCA 106

Sexual offences
CRIMINAL LAW SENTENCING SENTENCING SENTENCING USE OF VICTIM IMPACT STATEMENT SENTENCING

Citation: RL v R [2015] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 22 May 2015
Judges: Basten JA; Simpson J; Adamson J

Background

The applicant pleaded guilty to seven sexual offences (with five further offences taken into account on a Form 1) committed against family members between 1981 and 1986. The primary victim was a young niece. The applicant was 14 years old when the offending began and approximately 19 years old at the time of the last offence.

The offences were not reported until 2013, meaning sentence was imposed in February 2014, roughly 30 years after the events. By that time, the applicant had led a blameless life and readily accepted responsibility when confronted with the complaints. The sentencing judge imposed an aggregate term of seven years imprisonment with a non-parole period of three years and three months.

The applicant sought leave to appeal, arguing that insufficient allowance had been made for his youth at the time of offending, that certain aggravating factors had been incorrectly applied, that a victim impact statement had been improperly used, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge gave sufficient weight to the applicant's youth at the time of offending, given that most offences were committed when he was a juvenile
  • Whether the sentencing judge correctly applied the sentencing principles and penalty ranges applicable at the time of the offences (early 1980s), rather than modern sentencing norms
  • Whether the offending involved the kind of "planning" that constitutes an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge improperly relied on a victim impact statement that went beyond harm directly resulting from the offences
  • Whether, once a specific error is identified, the appellate court should proceed to determine the appropriate sentence rather than simply ask whether the impugned sentence fell within the available range

Decision

The Court found that the sentencing judge had not given adequate weight to the applicant's youth at the time of the offending. Sentencing principles applicable in the early 1980s required significant mitigation for juvenile offenders, emphasising rehabilitation over punishment. Because most of the offending occurred when the applicant was between 14 and 17 years of age, this factor warranted considerably more reduction in the indicative sentences than the judge had allowed.

On the question of planning, the Court held that the sentencing judge had erred in treating the offending as involving planning of a type that aggravates an offence under s 21A(2)(n). The conduct did not reflect the kind of deliberate, premeditated organisation that the provision contemplates as an aggravating circumstance.

The Court also accepted that the victim impact statement had not been confined to harm directly caused by the offences, and that this was a further error. Together, these errors were sufficient to warrant intervention. Applying Kentwell v The Queen [2014] HCA 37, the Court confirmed that once a specific sentencing error is established, the appellate court must determine the appropriate sentence itself rather than simply assess whether the impugned sentence was within a permissible range.

Having conducted that exercise, the Court reduced the aggregate sentence to six years imprisonment, reflecting appropriate weight for the applicant's youth, the sentencing standards of the relevant era, his lack of subsequent offending, and his early acceptance of guilt.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed on 14 February 2014 set aside
  • Applicant resentenced to imprisonment for 6 years, with a non-parole period of 2 years and 9 months, dating from 14 February 2014, and a balance of term of 3 years and 3 months
  • First eligible parole date: 13 November 2016

Key Takeaways

  • When sentencing an adult for offences committed as a juvenile, the sentencing court must apply the principles and penalty ranges that prevailed at the time of the offending, not contemporary standards, meaning youth at the time of offending can carry substantial mitigating weight.
  • Under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, "planning" as an aggravating factor requires deliberate premeditation of a kind that goes beyond simply taking advantage of access or opportunity; opportunistic offending does not automatically attract this aggravation.
  • A victim impact statement that extends beyond harm directly resulting from the offences is an error in the sentencing process, and reliance on it may contribute to appellate intervention.
  • Following Kentwell v The Queen [2014] HCA 37, once a specific error in sentencing is identified, an appellate court must determine the correct sentence for itself; it is not sufficient to ask only whether the original sentence sat within a permissible range.
  • Blameless conduct in the decades following juvenile offending, combined with a ready acceptance of guilt upon complaint, are recognised mitigating factors that a sentencing court must adequately address.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 71, 76, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 28, 32, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33
- Child Welfare Act 1939 (NSW), s 83

Cases:
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- R v Tuala [2015] NSWCCA 8
- Davis v R [2015] NSWCCA 90
- Abbas v R [2013] NSWCCA 115; 231 A Crim R 413
- AJB v R [2014] NSWCCA 51; 169 A Crim R 32
- Williams v R [2010] NSWCCA 15
- Fahs v R [2007] NSWCCA 26
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497