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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
Date: 19 August 2015
Judge(s): Simpson JA, Button J, Fagan J (Fagan J writing)

Background

The appellant, a farmhand in his early fifties, pleaded guilty in the District Court at Wagga to three charges of indecent assault on a child under 16 years and one charge of sexual intercourse with a child under 10 years. The offences occurred between January and April 2009, when the complainant was 8 years old. The appellant had been employed on the family's rural property and was treated as a trusted family friend.

The offences formed a course of escalating conduct. Three of the counts involved the appellant placing his hands inside the complainant's clothing to touch her genitals or chest on separate occasions. The fourth and most serious count involved partial penile penetration of the complainant while she lay on a quad bike near a pump shed.

The District Court sentenced the appellant in September 2013. He sought leave out of time to appeal against the severity of the sentences imposed. The Crown did not oppose an extension of time, and the Court granted it.

Legal Issues

  • Whether the sentencing judge erred by relying on comparable sentence decisions that were subsequently set aside following the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120
  • Whether the sentences imposed were manifestly excessive (this ground became unnecessary to decide once the first ground succeeded)
  • What sentences were appropriate upon a resentencing exercise

Decision

Ground 1: Reliance on overturned comparables

The sentencing judge had expressly taken into account, as guides to the exercise of her sentencing discretion, two Court of Criminal Appeal decisions: RJA v R [2008] NSWCCA 137 and Ingham v R [2011] NSWCCA 88. Both decisions were subsequently reconsidered and the sentences reduced by the Court of Criminal Appeal in 2014, following the High Court's correction of the standard non-parole period methodology in Muldrock. The Court held that because the sentencing judge had relied on decisions that had since been set aside, the sentencing exercise was infected by error and had to be redone (at [26]).

Ground 2: Manifest excess

Because Ground 1 succeeded and the Court was required to resentence, it was unnecessary to determine whether the original sentences were manifestly excessive. The submissions on that ground remained relevant to the resentencing exercise (at [27]).

Resentencing

The Court resentenced by applying the principles summarised in Ingham v R [2014] NSWCCA 123 and by having regard to the 2014 decisions in both RJA and Ingham as corrected comparables, making allowance for the fact that those offenders had been sentenced after trial rather than on a plea of guilty (at [41]). The Court accepted all of the sentencing judge's factual findings without challenge: the offences were predatory, involved serious abuse of trust, occurred at the complainant's home, and constituted an escalating course of conduct with an element of planning (at [31]). The complainant and her family suffered very considerable and ongoing harm (at [31]).

The Court confirmed a 15% discount for the utilitarian value of the pleas, which were entered late and accompanied by no demonstrated remorse or insight (at [36]). Special circumstances were found to exist, justifying a longer balance term relative to the non-parole period, based on the appellant's need for significant support on release and the risk of reoffending (at [37]). The substituted sentences involved partial accumulation both upon the Local Court sentences and between the four counts, to reflect the distinct and separate nature of each assault (at [41]).

Orders Made

  • Time for applying for leave to appeal extended to the date of filing
  • Leave to appeal granted
  • Appeal allowed
  • District Court sentences of 27 September 2013 quashed
  • Substituted sentences imposed:
  • Count 2 (indecent assault): non-parole period of 3 years from 7 August 2014 to 6 August 2017; balance term of 1 year 6 months to 6 February 2019
  • Count 4 (indecent assault): non-parole period of 2 years from 7 November 2014 to 6 November 2016; balance term of 1 year to 6 November 2017
  • Count 5 (indecent assault): non-parole period of 2 years from 7 February 2015 to 6 February 2017; balance term of 1 year to 6 February 2018
  • Count 7 (sexual intercourse with child under 10): non-parole period of 7 years 8 months from 7 May 2015 to 6 January 2023; balance term of 3 years 4 months to 6 May 2026
  • Total non-parole period of 8 years and 5 months; total balance term of 3 years and 4 months
  • Appellant eligible for supervised parole at expiry of the non-parole period for Count 7

Key Takeaways

  • A sentencing judge's reliance on comparable decisions that are later set aside constitutes an error vitiating the sentencing exercise, requiring the appellate court to resentence afresh (at [26]-[27]).
  • Where Muldrock led to the reduction of sentences in cases previously used as sentencing guides, a sentence built on those uncorrected guides cannot stand (at [26]).
  • Partial accumulation between counts was appropriate to reflect the fact that each assault was a distinct and independent event occurring on a separate occasion, even within a single course of offending (at [41]).
  • Special circumstances justifying a longer parole period were established by the combination of the appellant's limited social capacity, his anticipated placement under protection in custody, and his need for supervised support on release to reduce reoffending risk (at [37]).
  • When resentencing following a Muldrock-related error, the Court of Criminal Appeal applied the corrected comparable decisions from 2014 while adjusting for the difference between sentencing after trial and sentencing on a plea of guilty (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

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