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Court of Criminal Appeal 24 July 2015

MRM v R

[2015] NSWCCA 195

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL ALLOWED APPLICANT RESENTENCED

Citation: MRM v R [2015] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 24 July 2015
Judges: Meagher JA, Simpson JA, Schmidt J

Background

The applicant, a male offender, was convicted on eleven counts of sexual offences committed over approximately a decade against three child victims: the son and daughter of his de facto partner, and his own daughter. The victims ranged in age from six or seven to seventeen years at the relevant times. The offences spanned 2001 to 2011 and involved a persistent course of conduct.

The sentencing judge in the District Court imposed carefully structured individual sentences, accumulating them partially to arrive at a total effective sentence of 20 years imprisonment with a non-parole period of 15 years. The non-parole period represented 75 per cent of the head sentence, a proportion the sentencing judge restored through adjustment of the statutory proportions.

The applicant sought leave to appeal against sentence on three grounds: that the sentencing judge failed to give adequate weight to early guilty pleas; that the sentencing judge failed to take into account the applicant's voluntary disclosure of the conduct underlying two specific counts; and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge failed to give proper weight to the applicant's early guilty pleas across various counts (Ground 1)
  • Whether the sentencing judge erred by failing to take into account the applicant's voluntary disclosure of the offences underlying counts 7 and 8 (Ground 2)
  • Whether the individual sentences, and the aggregate sentence of 20 years with a 15-year non-parole period, were manifestly excessive (Ground 3)

Decision

Ground 1 (Guilty pleas): The Court dismissed this ground. Simpson JA and Meagher JA concluded that the sentencing judge had not failed to account for the early guilty pleas, and no error of principle was established on this point.

Ground 2 (Voluntary disclosure): The majority (Meagher JA and Simpson JA) upheld this ground. Although the sentencing judge recited the fact of the applicant's voluntary disclosure of the offences in counts 7 and 8 (offences that police had not otherwise uncovered), the reasons on sentence gave no indication that this disclosure was actually taken into account as a mitigating factor under the principles established in R v Ellis (1986) 6 NSWLR 603. The sentences for those two counts were identical to those for comparable counts where no voluntary disclosure had occurred, reinforcing the inference that the disclosure was not weighed in the sentencing exercise. The Court found this constituted an error of sentencing principle and set aside those two sentences, substituting reduced sentences.

Ground 3 (Manifest excess): The majority found that no individual sentence was outside the legitimate range. However, Meagher JA and Simpson JA concluded that the aggregate sentence of 20 years with a 15-year non-parole period was manifestly excessive when assessed against the principles of totality and proportionality, and ordered resentencing. Schmidt J dissented on this point, concluding that no error in the exercise of the sentencing discretion had been shown and that the overall sentence fell within the available range given the number, nature, and seriousness of the offences.

Orders Made

The orders made differed across the bench. The majority position, reflected in the orders of Meagher JA and Simpson JA, was:

  • Leave to appeal granted
  • Appeal allowed
  • Applicant resentenced, with reduced sentences substituted for counts 7 and 8, and the overall effective sentence reduced in accordance with the resentencing table attached to Simpson JA's reasons

Schmidt J would have granted leave to appeal but dismissed the appeal.

Key Takeaways

  • A sentencing court that recites a mitigating factor in its reasons but does not demonstrably apply it in the exercise of the sentencing discretion may be found to have committed an error of principle, particularly where the resulting sentence is indistinguishable from sentences imposed in the absence of that factor.
  • Under the principles in R v Ellis, voluntary disclosure of offences that would otherwise not have come to police attention is a recognised mitigating consideration that must be actively reflected in the sentence, not merely acknowledged in the reasons.
  • No single correct sentence exists; an applicant challenging an individual sentence as manifestly excessive must demonstrate it was "unreasonable or plainly unjust." The Court confirmed that each of the individual sentences here fell within the legitimate range.
  • The totality principle requires that an aggregate sentence, arrived at through accumulation, must remain proportionate to the overall criminality. Even where individual sentences are each within range, the assembled total may still be manifestly excessive.
  • A dissenting judgment by Schmidt J illustrates that the application of totality principles to complex multi-count, multi-victim sentences is not a mechanical exercise, and reasonable minds among appellate judges may differ on whether the aggregate falls outside the available range.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C, 73
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2), Pt 3 Div 3, Pt 4 Div 1A

Cases
- R v Ellis (1986) 6 NSWLR 603
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Nguyen v R [2007] NSWCCA 14
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
- CM v R [2008] NSWCA 195; (2008) 187 A Crim R 197
- Doe v R [2013] NSWCCA 248; (2013) 187 A Crim R 328
- Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
- LJ v The Queen [2010] NSWCA 289
- Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
- Baumer v The Queen [1998] HCA 67; (1998) 166 CLR 51
- Martin v R [2013] NSWCCA 24
- Hallak v R [2014] NSWCCA 48
- Power v The Queen [1974] HCA 36; (1974) 131 CLR 623
- Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465