AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 19 August 2015

KB v R

[2015] NSWCCA 220

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE COMPARABLE SENTENCE DECISIONS

Citation: KB v R [2015] NSWCCA 220
Court: Court of Criminal Appeal, NSW
Date: 19 August 2015
Judges: Simpson JA, Button J, Fagan J (Fagan J delivering the principal judgment)

Background

The appellant pleaded guilty in the District Court at Wagga Wagga to three counts of indecent assault on a child under 16 years and one count of sexual intercourse with a child under 10 years, contrary to ss 61M(2) and 66A(1) of the Crimes Act 1900 (NSW). The offences occurred between January and April 2009, when the complainant was eight years old and the appellant was 52. The appellant was employed as a farmhand on the rural property where the complainant lived with her family.

Separately, prior to the District Court sentence hearing, the appellant had pleaded guilty in the Local Court to four counts of indecent assault on the complainant's older sister and one count of breaching an apprehended violence order. Those offences involved the sister when she was 13. The Magistrate imposed sentences resulting in a combined non-parole period of 16 months, and those sentences were confirmed on a severity appeal dealt with at the same time as the District Court proceedings.

On 27 September 2013, English DCJ sentenced the appellant in the District Court, imposing a total non-parole period of 9 years and 9 months. The appellant sought leave to appeal out of time against the severity of those sentences. The Crown did not oppose an extension of time.

  • Whether the sentencing judge's reliance on comparable cases that were subsequently reconsidered and reduced following Muldrock v The Queen [2011] HCA 39 occasioned a miscarriage of justice.
  • Whether, if error was established, the sentences should be reduced on resentencing, and if so by how much.

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had erred by relying on comparable sentences from RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88. Both those decisions had been revisited by the Court of Criminal Appeal in 2014, with sentences reduced in light of the High Court's decision in Muldrock, which fundamentally changed the approach to standard non-parole periods. The sentencing judge incorporated those cases into her analysis through the survey of comparable decisions in R v Leslie [2013] NSWCCA 48 before either had been reconsidered on Muldrock grounds.

Fagan J found that this reliance on comparables that had since been undermined constituted an error capable of affecting the outcome. However, the Court was careful to note that only some adjustment was warranted. The 2014 decisions in RJA and Ingham involved offenders sentenced after trial, whereas the appellant had entered pleas of guilty, attracting a 15% discount for their utilitarian value. That distinction required the resentenced figures to reflect both the revised comparable range and the plea discount.

On resentence, the Court substituted reduced sentences across all four counts, retaining partial accumulation to reflect the series of independent assaults on the complainant across distinct occasions. The most significant reduction was to Count 7 (the s 66A(1) offence), where the non-parole period was reduced from 9 years to 7 years and 8 months and the balance term reduced from 5 years to 3 years and 4 months.

Orders Made

  • Time to apply for leave to appeal extended to the date the application was filed.
  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentences imposed on 27 September 2013 quashed.
  • In substitution:
  • Count 2: Non-parole period of 3 years (7 August 2014 to 6 August 2017); balance term of 1 year 6 months (expiring 6 February 2019).
  • Count 4: Non-parole period of 2 years (7 November 2014 to 6 November 2016); balance term of 1 year (expiring 6 November 2017).
  • Count 5: Non-parole period of 2 years (7 February 2015 to 6 February 2017); balance term of 1 year (expiring 6 February 2018).
  • Count 7: Non-parole period of 7 years 8 months (7 May 2015 to 6 January 2023); balance term of 3 years 4 months (expiring 6 May 2026).
  • Total combined non-parole period: 8 years and 5 months; total balance term: 3 years and 4 months.
  • The appellant eligible for supervised parole at expiry of the Count 7 non-parole period.

Key Takeaways

  • Where a sentencing judge relies on comparable decisions that are subsequently reduced on Muldrock grounds, that reliance may constitute an error justifying appellate intervention, even if no other specific error in the sentencing reasoning is identified.
  • The Court of Criminal Appeal confirmed that the 2014 reconsidered decisions in RJA v R and Ingham v R represent the appropriate benchmarks for sentencing under ss 61M(2) and 66A(1) following Muldrock, rather than their earlier, higher counterparts.
  • A meaningful distinction applies between offenders sentenced after trial and those who plead guilty: the revised comparable sentences (from the 2014 decisions) involved post-trial sentencing, and any resentencing must account for a plea discount before those benchmarks are applied.
  • Partial accumulation of sentences across multiple counts remained appropriate here to reflect the independent nature of each assault on separate occasions, even after the overall quantum was reduced.
  • In dismissing the severity appeal concerning the Local Court sentences, the District Court confirmed those sentences separately; they were not disturbed on this appeal and remained a fixed point around which the District Court sentences were structured.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- RJA v R [2008] NSWCCA 137
- RJA v R [2014] NSWCCA 89
- Ingham v R [2011] NSWCCA 88
- Ingham v R [2014] NSWCCA 123
- R v Leslie [2013] NSWCCA 48