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Court of Criminal Appeal 29 May 2015

Aktar v R

[2015] NSWCCA 123

Also reported as (2015) 251 A Crim R 376
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE INDECENT ASSAULT OFFENCES ADDITIONAL OFFENCES TAKEN INTO ACCOUNT ASSESSMENT OF OBJECTIVE SERIOUSNESS COMPLAINT OF MANIFEST EXCESS

Citation: Aktar v R [2015] NSWCCA 123
Court: Court of Criminal Appeal, New South Wales
Date: 29 May 2015
Judges: Hoeben CJ at CL, RA Hulme J, Wilson J

Background

The applicant had pleaded guilty in the Parramatta District Court to two counts of indecent assault under s 61L of the Crimes Act 1900, each carrying a maximum penalty of five years imprisonment. Two further offences, a third indecent assault and a charge of assault occasioning actual bodily harm, were placed before the sentencing judge on a Form 1 document (meaning they were taken into account in fixing the sentence but not separately convicted). The sentencing judge allowed a 10% discount for the utilitarian value of the guilty pleas.

All offences arose from a single incident on 22 January 2013, in which the applicant forced himself upon a woman he regarded as his cousin, subjecting her to a sustained series of sexual assaults in her own home. The sentencing judge imposed a total effective sentence of two years and three months, with a non-parole period of one year and three months, comprising partially accumulated sentences for the two counts on indictment.

The applicant sought leave to appeal against those sentences on five grounds, contending they were manifestly excessive, that the accumulation was wrong in principle, that the discount for special circumstances was insufficient, that one aggravating factor was misapplied, and that the objective seriousness of the offending was assessed too highly.

  • Whether the sentencing judge erred by partially accumulating the two sentences rather than making them wholly concurrent
  • Whether the discount applied for special circumstances (the relatively low non-parole period compared to the head sentence) was sufficient
  • Whether the sentencing judge incorrectly applied s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, which treats the commission of an offence in the victim's home as an aggravating factor
  • Whether the sentencing judge assessed the objective seriousness of the offending too highly
  • Whether the overall sentence was manifestly excessive

Decision

Accumulation (Ground 2): The Court found no error in the sentencing judge's decision to partially accumulate the sentences. The degree of accumulation is a matter of discretion, and the sentencing judge expressly turned her mind to the question. The Court observed that a single criminal episode can still warrant some accumulation where separate, distinct acts are involved.

Special circumstances (Ground 3): The Court accepted that the sentencing judge found special circumstances and adjusted the non-parole period accordingly, producing a ratio of non-parole period to head sentence below the statutory default of three-quarters. No error in the exercise of that discretion was established.

Aggravating factor (Ground 4): The applicant argued that s 21A(2)(eb), which aggravates an offence committed in the victim's home, should not apply because the home is also that of a resident of the applicant's household or a dwelling where the offender lives. The Court did not resolve the statutory interpretation question on its merits, noting the provision had not been fully argued by both sides in this or the earlier case of Melbom v R. Wilson J proceeded on the basis that the sentencing judge's approach could be supported regardless, and both Hoeben CJ at CL and Hulme J reserved their positions on the correct construction of the subsection.

Objective seriousness and manifest excess (Grounds 1 and 5): The Court found no error in the sentencing judge's assessment that the offending fell toward the higher end of the range for this type of offence. The assault was prolonged, involved multiple acts, occurred in the complainant's home, and was accompanied by force. Wilson J noted that the sentences imposed "might well be regarded as generous" in light of the seriousness of the conduct. Applying the test from Dinsdale v R and Markarian v The Queen, the Court concluded the applicant had not demonstrated the sentences were unreasonable or plainly unjust.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • In dismissing all five grounds, the Court of Criminal Appeal confirmed that there is no single correct sentence and that sentencing judges retain considerable discretion in determining both the level of accumulation and the extent of any special circumstances adjustment.
  • No single episode of offending automatically attracts wholly concurrent sentences; where distinct criminal acts occur within the same incident, some degree of accumulation may be appropriate.
  • The correct interpretation of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (the aggravating factor of offending in the victim's home) remains unresolved in this jurisdiction, with two members of the Court expressly reserving their positions pending full argument on the point.
  • A complaint of manifest excess requires the applicant to show the sentence was "unreasonable or plainly unjust" (Dinsdale v R); the mere assertion that a sentence is "crushing" was characterised by the Court as unhelpful hyperbole that did not advance the applicant's case.
  • Sufficient credit for the utilitarian value of a guilty plea, a finding of remorse, and the availability of summary jurisdiction did not, in this case, reduce the sentences to the point that they could be impugned on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L (indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Interpretation Act 1987 (NSW)
- Crimes (Sentencing Amendment) Bill 2007

Cases
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Melbom v R [2013] NSWCCA 210
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- BIP v R [2011] NSWCCA 224
- Caristo v R [2011] NSWCCA 7
- DS v R [2012] NSWCCA 159
- EK v R [2010] NSWCCA 199; (2010) 208 A Crim R 157
- Gall v R [2015] NSWCCA 69
- Ingham v R [2011] NSWCCA 88
- LG v R [2012] NSWCCA 249
- MD v R [2015] NSWCCA 37
- Montero v R [2013] NSWCCA 214; (2013) 234 A Crim R 532
- Mulato v R [2006] NSWCCA 282
- NLR v R [2011] NSWCCA 246
- Panchal v R [2014] NSWCCA 275
- Pasoski v R [2014] NSWCCA 309
- R v Gazi Comert [2004] NSWCCA 125